Exhibit 4.26
------------
WAIVER AND FIFTH AMENDMENT TO LOAN AGREEMENT
THIS WAIVER AND FIFTH AMENDMENT TO LOAN AGREEMENT (this "Amendment") is
entered into as of December 5, 2001 among Starcraft Automotive Group, Inc.
("SAG"), an Indiana corporation, National Mobility Corporation ("NMC"), an
Indiana corporation, Starcraft Corporation ("SC"), an Indiana corporation, and
Imperial Automotive Group, Inc. ("IAG"), an Indiana corporation, (SAG, NMC, SC
and IAG are each individually a "Company", and collectively "Companies"), and
Foothill Capital Corporation, a California corporation ("Lender").
WHEREAS, Companies and Lender are parties to a Loan and Security Agreement
dated as of November 20, 1998 (as amended from time to time, the "Loan
Agreement");
WHEREAS, Companies have notified Lender that Companies have breached
Section 7.20(B) of the Loan Agreement for the fiscal quarter ended September 29,
2001, resulting in an Event of Default under subsection 8.2 of the Loan
Agreement (the "Specified Event of Default"); and
WHEREAS, Companies have requested that Lender waive the Specified Event of
Default and amend the Loan Agreement, and Lender has agreed to do so subject to
the terms and conditions contained herein;
NOW THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used
herein shall have the meanings ascribed to such terms in the Loan Agreement.
2. Waiver. In reliance upon the representations and warranties of the
Companies set forth in Section 7 below, and subject to the satisfaction of the
conditions set forth in Section 5 below, Lender hereby waives the Specified
Event of Default. Except as set forth hereinabove, the foregoing waiver shall
not constitute (a) a modification or alteration of the terms, conditions or
covenants of the Loan Agreement or any other Loan Document, (b) a waiver of any
other breach of, or any other Event of Default under, the Loan Agreement or any
other Loan Document or (c) a waiver, release or limitation upon the exercise by
the Lender of any of its rights, legal or equitable, under the Loan Agreement,
the other Loan Documents and applicable law, all of which are hereby reserved.
3. Amendments to Loan Agreement. Subject to the satisfaction of the
conditions set forth in Section 5 hereof, the Loan Agreement is hereby amended
as follows:
(a) Section 2.11(d) of the Loan Agreement is hereby amended and
restated in its entirety, as follows:
"(d) Servicing Fee. On the first day of each calendar month
during the term of this Agreement, and thereafter so long as
any Obligations are outstanding, a servicing fee in an
amount equal to $10,000 per month."
(b) Section 3.4 of the Loan Agreement is hereby amended and restated
in its entirety, as follows:
"3.4 Term.
This Agreement shall become effective upon the execution and
delivery hereof by Borrowers and Foothill and shall continue
in full force and effect for a term ending on June 30, 2002.
Foothill shall have the right to terminate its obligations
under this Agreement immediately and without notice upon the
occurrence and during the continuation of an Event of
Default."
(c) Section 7.20 of the Loan Agreement is hereby amended and restated
in its entirety, as follows:
"7.20. Financial Covenants.
Fail to maintain:
(A) Tangible Net Worth. Tangible Net Worth of at least (i)
negative $3,200,000 as of the last day of the fiscal
quarter ending on the Sunday closest to December 31,
2001, and (ii) negative $2,300,000 as of the last day
of the fiscal quarter ending on the Sunday closest to
March 31, 2002;
(B) EBITDA. EBITDA of at least (i) $250,000 for the fiscal
quarter ending on the Sunday closest to December 31,
2001, and (ii) $1,000,000 for the fiscal quarter ending
on the Sunday closest to March 31, 2002."
4. Ratification. This Amendment, subject to satisfaction of the conditions
provided below, shall constitute a waiver and amendment to the Loan Agreement
and all of the Loan Documents as appropriate to express the agreements contained
herein. In all other respects, the Loan Agreement and the Loan Documents shall
remain unchanged and in full force and effect in accordance with their original
terms.
5. Condition to Effectiveness. Subject to Section 7 below, the waiver and
amendments to the Loan Agreement set forth in this Amendment shall become
effective as of the date of this Amendment and upon the satisfaction of the
following conditions precedent in form and substance satisfactory to Lender:
(a) Amendment. Execution by the Companies and Lender of this Amendment
and delivery thereof to Lender;
(b) Waiver Fee. The Companies shall have paid to Lender a waiver fee
of $10,000;
(c) Other Documents. The Companies shall have executed and/or
delivered such other agreements, documents and instruments as Lender may
otherwise require; and
(d) No Default. Except for the Specified Event of Default, no Event of
Default or event which, with the giving of notice or the passage of time,
or both, would become an Event of Default, shall have occurred and be
continuing.
6. Commitment Reduction Fee. The unpaid balance of the commitment reduction
fee set forth in Section 7 of the Consent and Fourth Amendment to Loan Agreement
dated August 31, 2001 by and among Lender and Companies shall be due and payable
as follows: (a) $45,000 of such fee shall be due and payable on December 31,
2001 and (b) $45,000 of such fee shall be due and payable on March 31, 2002.
7. Miscellaneous.
(a) Warranties and Absence of Defaults. In order to induce Lender to
enter into this Amendment, each Company hereby warrants to Lender, as of
the date hereof, that:
(i) The warranties of each Company contained in the Loan
Agreement, as herein amended, are true and correct as of the
date hereof as if made on the date hereof.
(ii) All information, reports and other papers and data
heretofore furnished to Lender by each Company in connection
with this Amendment, the Loan Agreement and the other Loan
Documents are accurate and correct in all material respects
and complete insofar as may be necessary to give Lender true
and accurate knowledge of the subject matter thereof. Each
Company has disclosed to Lender every fact of which it is
aware which would reasonably be expected to materially and
adversely affect the business, operations or financial
condition of such Company or the ability of such Company to
perform its obligations under this Amendment, the Loan
Agreement or under any of the other Loan Documents. None of
the information furnished to Lender by or on behalf of each
Company contained any material misstatement of fact or
omitted to state a material fact or any fact necessary to
make the statements contained herein or therein not
materially misleading.
(iii)Except for the Specified Event of Default, no Event of
Default or event which, with the giving of notice or the
passage of time, or both, would become an Event of Default,
shall have occurred and be continuing, and, after giving
effect to the waiver and amendments contained herein, no
Event of Default or event which, with the giving of notice
or the passage of time, or both, would become an Event of
Default, shall have occurred and be continuing.
(b) Expenses. Each Company agrees to jointly and severally pay on
demand all costs and expenses of Lender (including the reasonable fees and
expenses of outside counsel for Lender) in connection with the preparation,
negotiation, execution, delivery and administration of this Amendment and
all other instruments or documents provided for herein or delivered or to
be delivered hereunder or in connection herewith. In addition, each Company
agrees to jointly and severally pay, and save Lender harmless from all
liability for, any stamp or other taxes which may be payable in connection
with the execution or delivery of this Amendment or the Loan Agreement, as
amended hereby, and the execution and delivery of any instruments or
documents provided for herein or delivered or to be delivered hereunder or
in connection herewith. All obligations provided in this Section 8 (b)
shall survive any termination of this Amendment and the Loan Agreement as
amended hereby.
(c) Governing Law. This Amendment shall be a contract made under and
governed by the internal laws of the State of Illinois.
(d) Counterparts. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate
counterparts, and each such counterpart, when executed and delivered, shall
be deemed to be an original, but all such counterparts shall together
constitute but one and the same Amendment.
(e) Reference to Loan Agreement. On and after the effectiveness of the
waiver and amendments to the Loan Agreement accomplished hereby, each
reference in the Loan Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import, and each reference to the Loan Agreement
in any Loan Documents, or other agreements, documents or other instruments
executed and delivered pursuant to the Loan Agreement, shall mean and be a
reference to the Loan Agreement, as amended by this Amendment.
(f) Successors. This Amendment shall be binding upon each Company,
Lender and their respective successors and assigns, and shall inure to the
benefit of each Company, Lender and their respective successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized and delivered as
of the date first above written.
STARCRAFT AUTOMOTIVE GROUP, INC.,
an Indiana corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title President
NATIONAL MOBILITY CORPORATION,
an Indiana corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title President
IMPERIAL AUTOMOTIVE GROUP, INC.,
an Indiana corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title President
STARCRAFT CORPORATION,
an Indiana corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title President
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ Xxxxxxx X. XxXxxx
------------------------------------
Title Vice President
