Exhibit 10.28
SEVENTH AMENDMENT TO CREDIT AGREEMENT
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THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), dated as of
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October __, 2000, is entered into between MELLON BANK, N.A. (the "Bank"), with a
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place of business at 400 South Hope Street, 5th Floor, Los Angeles, California
90071, and KEYSTONE AUTOMOTIVE INDUSTRIES, INC., a California corporation
("Borrower"), with its chief executive office located at 700 East Bonita Avenue,
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Pomona, California 91767.
RECITALS
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A. Borrower and the Bank have previously entered into that certain Credit
Agreement dated as of March 25, 1997, as amended by that certain First Amendment
to Credit Agreement dated as of August 25, 1997, that certain Second Amendment
to Credit Agreement dated as of March 17, 1998, that certain Third Amendment to
Credit Agreement dated as of June 29, 1998, that certain Fourth Amendment to
Credit Agreement dated as of September 18, 1998, that certain Fifth Amendment to
Credit Agreement dated as of September 17, 1999 and that certain Sixth Amendment
to Credit Agreement dated as of September __, 2000 (collectively, the "Credit
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Agreement"), pursuant to which the Bank has made certain loans and other
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financial accommodations available to Borrower. Terms used herein without
definition shall have the meanings ascribed to them in the Credit Agreement.
B. Borrower and the Bank wish to further amend the Credit Agreement under
the terms and conditions set forth in this Amendment. Borrower is entering into
this Amendment with the understanding and agreement that, except as specifically
provided herein, none of the Bank's rights or remedies as set forth in the
Credit Agreement is being waived or modified by the terms of this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Amendments to Article I - Definitions
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(a) The definition of Applicable Margin contained in Section 1.1 of
the Credit Agreement is hereby amended to read in its entirety as follows:
"'Applicable Margin': As of any date of determination, with respect
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to Prime Rate Option Revolving Loans the margin shall be zero percent
(0%) and with respect to Libor Rate Option Revolving Loans the margin
shall be one percent (1%)."
(b) The definition of Maturity Date contained in Section 1.1 of the
Credit Agreement is hereby amended to read in its entirety as follows:
"'Maturity Date': November 1, 2001."
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(c) Clause (vi) of the definition of Permitted Acquisitions contained
in Section 1.1 of the Credit Agreement is hereby amended to read in its entirety
as follows:
"(vi) the total cash consideration paid for any Permitted Acquisition
(in a single transaction or in a series of transactions) shall not
exceed the aggregate amount of Five Million Dollars ($5,000,000)
during any consecutive twelve (12) month period;"
2. Amendments to Article II - The Credit.
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(a) Rate Periods. Section 2.4(c) of the Credit Agreement is
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hereby amended to read in its entirety as follows:
"(c) Rate Periods. At any time the Borrower selects, converts to or
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renews the Libor Rate Option, the Borrower shall fix a period (the
"Rate Period") which shall be one, two, three or six months, which
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shall be acceptable to the Bank in the Bank's sole discretion, during
which the Libor Rate Option shall apply to the corresponding Rate
Segment; provided that the Borrower may not elect a Rate Period which
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will end after the Maturity Date. The Bank's right to payment of
principal and interest under the Note shall in no way be affected by
the fact that one or more Rate Periods may be in effect."
(b) Commitment Fee. Section 2.5 of the Credit Agreement is hereby
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amended by adding the following sentence at the end of Section 2.5 of the Credit
Agreement:
"Such Commitment Fee shall be one-quarter of one percent (.25%)
payable to Bank quarterly in arrears effective for the quarter ending
December 31, 2000 and continuing on the last Business Day of each
three-month period ending thereafter during the term of this
Agreement, and on the Maturity Date."
3. Amendment to Article VI - Covenants.
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(a) Negative Covenants. Clause 6.2(p) of the Credit Agreement is
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hereby amended to read in its entirety as follows:
"(p) Stock Repurchases. Authorize or permit any Stock Repurchases
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exceeding an aggregate amount of Five Million Dollars ($5,000,000) in
any fiscal year of Borrower."
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4. Effectiveness of this Amendment. Each of the following is a
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condition precedent to the effectiveness of this Amendment and to the Bank's
obligation to extend any credit to Borrower as provided for by this Amendment:
(a) Amendment. The Bank shall have received, in form and substance
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satisfactory to the Bank, this Amendment and the attached Guarantor's Consent
fully executed in a sufficient number of counterparts for distribution to the
Bank and Borrower.
(b) Authorizations. The Bank shall have received evidence, in form
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and substance satisfactory to the Bank, that the execution, delivery and
performance by Borrower and each Guarantor and any instrument or agreement
required under this Amendment have been duly authorized.
(c) Representations and Warranties. The Representations and
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Warranties set forth in the Credit Agreement must be true and correct as of the
date of this Amendment as if made as of such date.
(d) No Event of Default. As of the date hereof, no Event of Default,
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or event which with notice or passage of time or both would constitute an Event
of Default, exists or has occurred and is continuing.
(e) Other Required Documentation. All other documents and legal
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matters in connection with the transactions contemplated by this Agreement shall
have been delivered or executed or recorded and shall be in form and substance
satisfactory to the Bank.
5. Representations and Warranties. The Borrower represents and
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warrants as follows:
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(a) Authority. Borrower has the requisite corporate power and
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authority to execute and deliver this Amendment, and to perform its obligations
hereunder and under the Loan Documents (as amended or modified hereby). The
execution, delivery and performance by the Borrower of this Amendment and each
Loan Document (as amended or modified hereby) have been duly approved by all
necessary corporate action of Borrower and no other corporate proceedings on the
part of Borrower are necessary to consummate such transactions.
(b) Enforceability. This Amendment has been duly executed and
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delivered by Borrower. This Amendment and each Loan Document (as amended or
modified hereby) is the legal, valid and binding obligation of Borrower,
enforceable against Borrower in accordance with its terms, and is in full force
and effect.
(c) No Default. As of the date hereof, no event has occurred and is
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continuing that constitutes, or would with notice or passage of time or both
would constitute, an Event of Default.
6. Choice of Law. The validity of this Amendment, its construction,
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interpretation and enforcement, the rights of the parties hereunder, shall be
determined under,
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governed by, and construed in accordance with the internal laws of the State of
California governing contracts only to be performed in that State.
7. Counterparts. This Amendment may be executed in any number of
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counterparts and by different parties and separate counterparts, each of which
when so executed and delivered, shall be deemed an original, and all of which,
when taken together, shall constitute one and the same instrument. Delivery of
an executed counterpart of a signature page to this Amendment by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Amendment.
8. Due Execution. The execution, delivery and performance of this
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Amendment are within the power of Borrower, have been duly authorized by all
necessary corporate action, have received all necessary governmental approval,
if any, and do not contravene any law or any contractual restrictions binding on
Borrower.
9. Reference to and Effect on the Loan Documents.
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(a) Upon and after the effectiveness of this Amendment, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of
like import referring to the Credit Agreement, and each reference in the other
Loan Documents to "the Credit Agreement", "thereof" or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement as modified and amended hereby.
(b) Except as specifically amended above, the Credit Agreement and all
other Loan Documents, are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed and shall constitute the
legal, valid, binding and enforceable obligations of Borrower to the Bank.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any the Bank or the Agent under any of the Loan Documents,
nor constitute a waiver of any provision of any of the Loan Documents.
(d) To the extent that any terms and conditions in any of the Loan
Documents shall contradict or be in conflict with any terms or conditions of the
Credit Agreement, after giving effect to this Amendment, such terms and
conditions are hereby deemed modified or amended accordingly to reflect the
terms and conditions of the Credit Agreement as modified or amended hereby.
10. Ratification. Borrower hereby restates, ratifies and reaffirms each
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and every term and condition set forth in the Credit Agreement, as amended
hereby, and the Loan Documents effective as of the date hereof.
11. Estoppel. To induce the Bank to enter into this Amendment and to
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continue to make advances to Borrower under the Credit Agreement, Borrower
hereby acknowledges and agrees that, after giving effect to this Amendment, as
of the date hereof, there exists no Event of Default and no right of offset,
defense, counterclaim or objection in favor of Borrower as against the Bank with
respect to the Obligations.
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the
date first above written.
KEYSTONE AUTOMOTIVE INDUSTRIES, INC.,
a California corporation
By:______________________________
Name:____________________________
Title:___________________________
MELLON BANK, N.A.,
a national association
By:______________________________
Name:____________________________
Title:___________________________
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GUARANTORS' CONSENT
Each of the undersigned hereby acknowledges and consents to the terms,
conditions and provisions of the Seventh Amendment to Credit Agreement dated as
of October ___, 2000 entered into by and among Keystone Automotive Industries,
Inc. ("Borrower") and Mellon Bank, N.A. (the "Bank"), and to the transactions
contemplated by such amendment. In addition, each of the undersigned hereby
reaffirms its obligations under its respective Continuing Guaranty delivered to
Lender in connection with the Credit Agreement as of the date noted beside each
such Guarantor's signature block, and agrees that it is and shall remain
responsible for the obligations of Borrower under such Credit Agreement as
amended by the Seventh Amendment to Credit Agreement.
CAR BODY CONCEPTS, INC., Date of Continuing Guaranty:
a Minnesota corporation March 17, 1997
By:____________________________________
Name:__________________________________
Title:_________________________________
INTEURO PARTS DISTRIBUTORS, INC., Date of Continuing Guaranty:
a Florida corporation March 17, 1997
By:____________________________________
Name:__________________________________
Title:_________________________________
NORTH STAR PLATING COMPANY, Date of Continuing Guaranty:
a Minnesota corporation March 28, 1997
By:____________________________________
Name:__________________________________
Title:_________________________________
REPUBLIC AUTOMOTIVE PARTS, INC., Date of Continuing Guaranty:
a Delaware corporation June 29, 1998
By:____________________________________
Name:__________________________________
Title:_________________________________
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FENDERS & MORE, INC., Date of Continuing Guaranty:
a Tennessee corporation June 29, 1998
By:____________________________________
Name:__________________________________
Title:_________________________________
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