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EXHIBIT 10.10(a)(2)
AMENDMENT AGREEMENT
This Amendment Agreement (this "Amendment") dated as of October 19, 1994 is
among Larizza Industries, Inc., an Ohio corporation (the "Company"), the
undersigned financial institutions and Bank of America Illinois (formerly known
as Continental Bank N.A.), as agent.
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to a Credit Agreement dated as of May
6, 1994 (as previously amended, the "Credit Agreement"; terms defined in the
Credit Agreement are, unless otherwise defined herein, used herein as defined
therein);
WHEREAS, the Company has advised the Banks that it intends to acquire all of
the issued and outstanding stock of LVB Industries, Inc., a Michigan
corporation ("LVB"), for total consideration not exceeding $6,145,000,
including cash consideration of $1,263,000 and the issuance of two promissory
notes in the aggregate principal amount of $1,700,000 (the "Acquisition");
WHEREAS, promptly after the Acquisition, LVB will be merged with and into its
wholly-owned subsidiary, Hughes Plastics, Inc. ("Hughes Plastics"); and
WHEREAS, the parties desire to amend the Credit Agreement and the Pledge
Agreement to permit the Acquisition and the transactions contemplated thereby;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Certain Definitions in the Credit Agreement.
(a) The following new definitions are added to the Credit
Agreement in the proper alphabetical order:
"Hughes Plastics" means Hughes Plastics, Inc., a Michigan
corporation.
"Subordinated Debt" means (a) a $1,200,000 convertible
promissory note issued by the Company to Louis Buzzitta, as agent for
Louis V. Buzzitta, the Diane M. Buzzitta Trust,
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Joseph T. Buzzitta and James V. Buzzitta, payable in 20 quarterly
installments and providing for interest (payable quarterly) at a rate
not to exceed 7.75% per annum and (b) a $500,000 promissory note
issued by the Company to Louis Buzzitta, as agent for Louis V.
Buzzitta, the Diane M. Buzzitta Trust, Joseph T. Buzzitta and
James V. Buzzitta, providing for interest (payable quarterly) at a
rate not to exceed 7.75% per annum payable in two equal installments
on the third and fourth anniversary of the date of issuance, which
notes are subject to a subordination agreement substantially in the
form of Exhibit H hereto or such other form as may be approved by
Larizza and the Required Banks from time to time.
(b) The definition of Continental in the Credit Agreement is
deleted and the following definition is substituted therefor:
"BAI" means Bank of America Illinois, an Illinois banking
corporation.
All references in the Credit Agreement to "Continental" shall be automatically
amended to read "BAI".
1.2 Amendment to Section 10.7 of the Credit Agreement. Section
10.7 of the Credit Agreement is amended by adding a semicolon and the
following language at the end thereof:
"and (l) Subordinated Debt in a principal amount not exceeding
$1,700,000."
1.3 Amendment to Section 10.11 of the Credit Agreement. Section
10.11 of the Credit Agreement is amended as follows:
(a) clause (c) thereof is amended to read in its entirety as follows:
"(c) Investments by the Company in its Subsidiaries in the
form of contributions to capital or loans or advances not to
exceed $500,000 in the aggregate in the case of Manchester,
$6,000,000 in the aggregate in the case of Hughes Plastics and
$4,400,000 in the aggregate in the case of General Nuclear;
provided that (i) immediately before and after giving effect
to such Investment, no Unmatured Event of Default or Event of
Default shall have occurred and be continuing and (ii) any
loans or advances to Manchester are reasonably expected to be
repaid within one year;"
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(b) clause (g) thereof is amended by deleting the word "and" at the
end thereof:
(c) clause (h) thereof is amended by substituting a semicolon for the
period at the end thereof; and
(d) the following clauses (i) and (j) are inserted at the end thereof:
"(i) the acquisition by the Company of the stock of LVB
Industries, Inc. for a purchase price not exceeding
$6,145,000 (of which not less than $1,700,000 will
constitute Subordinated Debt); and
(j) loans or advances made by Hughes Plastics to the
Company not at any time to exceed $4,000,000 in the
aggregate."
1.4 Amendment to Schedule 9.8. From and after the date of the
Acquisition, Schedule 9.8 to the Credit Agreement is amended and restated in
its entirety by replacing it with Exhibit A to this Amendment.
1.5 Addition of Section 12.1.12. From and after the date which is
three Business Days after consummation of the Acquisition, the following
Section 12.1.12 is added to the Credit Agreement in appropriate numerical
sequence:
12.1.12 Invalidity of Certain Hughes Plastics Documents, etc.
The Guaranty (as amended or otherwise modified from time to time, the
"Hughes Guaranty") issued by Hughes Plastics pursuant to Section 2.2
of the amendment to this Agreement dated as of October 19, 1994 (the
"Amendment") or the Security Agreement (as amended or otherwise
modified from time to time, the "Hughes Security Agreement") executed
by Hughes Plastics pursuant to Section 2.2 of the Amendment shall
cease to be in full force and effect, Hughes Plastics shall fail to
comply with or to perform any applicable material provision of the
Hughes Guaranty or the Hughes Security Agreement and such failure
continues for 30 days after notice to Hughes Plastics by the Agent,
any Bank or the holder of any Note, or Hughes Plastics (or any Person
by, through or on behalf of Hughes Plastics) shall contest in any
manner the validity, binding nature or enforceability of the Hughes
Guaranty or the Hughes Security Agreement.
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1.6 Addition of Exhibit H. The Credit Agreement is amended by
adding thereto a new Exhibit H in the form of Exhibit B to this Amendment.
1.7 Amendment to Schedule I to Company Pledge Agreement. From and
after the date of the Acquisition, Schedule I to the Pledge Agreement is
amended and restated in its entirety by replacing it with Exhibit C to this
Amendment.
ARTICLE II
REPRESENTATIONS AND WARRANTIES; AGREEMENTS
2.2 Representations and Warranties of the Company. In order to
induce the Banks and the Agent to execute and deliver this Amendment, the
Company represents and warrants to the Banks and the Agent that:
(a) the representations and warranties of the Company contained in
the Credit Agreement and each other Loan Document to which the Company is a
party are true and correct in all material respects on and as of the date
hereof as though made on and as of the date hereof; and
(b) no Event of Default or Unmatured Event of Default has occurred
and is continuing on and as of the date hereof or will result from the
execution and delivery of this Amendment or from the consummation of the
Acquisition or the other transactions contemplated herein.
2.2 Merger, Guaranty, Collateral, etc. In order to induce the
Banks and the Agent to execute and deliver this Amendment, the Company
covenants and agrees that, within three Business Days of consummation of the
Acquisition, (a) the Company will cause LVB to be merged with and into Hughes
Plastics, (b) the Company will deliver to the Agent all of the capital stock of
Hughes Plastics, together with a stock power executed in blank, to be held by
the Agent pursuant to the Pledge Agreement, (c) the Company shall cause Hughes
Plastics to execute and deliver a guaranty substantially in the form of Exhibit
D to this Amendment and a security agreement substantially in the form of
Exhibit E to this Amendment, together with such other documents (including,
without limitation, financing statements, mortgages, leasehold mortgages,
corporate documents and opinions of counsel) as the Agent or any Bank may
reasonably request to assure that the guaranty referred to above is the legal,
valid and binding obligation of Hughes Plastics and that such guaranty is
secured by perfected Liens on substantially all assets of Hughes Plastics.
Failure by the Company to comply with the requirements of this Section 2.2
shall be an Event of Default under the Credit Agreement.
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ARTICLE III
CONDITIONS TO EFFECTIVENESS
The effectiveness of this Amendment is subject to the prior
satisfaction of each of the following conditions precedent:
3.1 Resolutions, etc. The Agent shall have received from the
Company resolutions of its Board of Directors authorizing the Company's
execution and delivery and performance of this Amendment and the Acquisition
and all of the documents, instruments and agreements related hereto and
thereto.
3.2 Executed Counterparts. The Agent shall have received
counterparts of this Amendment executed by the Company and the Required Banks.
3.3 Amendment Fee. The Agent shall have received from the
Company, for distribution to the Banks pro rata according to their Percentages,
an amendment fee of $47,625.
ARTICLE IV
GENERAL
4.1 References, etc. From and after the date hereof, each
reference that appears in any other Loan Document to the Credit Agreement and
the Pledge Agreement shall be deemed to be a reference to the Credit Agreement
and the Pledge Agreement as amended hereby. This Amendment constitutes a "Loan
Document" as defined in the Credit Agreement.
4.2 Counterparts. This Amendment may be executed by the parties
hereto in any number of counterparts and by the different parties on separate
counterparts and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same Amendment.
4.3 Governing Law; Entire Agreement. This Amendment shall be
deemed to be a contract made under and governed by the laws of the State of
Illinois.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers as of the day and year first above
written.
LARIZZA INDUSTRIES, INC.
By: /s/ TERENCE C. SEIKEL
Title: CFO
BANK OF AMERICA ILLINOIS,
individually and as Agent
By: /s/ STEVE K. AHRENHOLZ
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Katherine Steiger
Title: Vice President
SANWA BUSINESS CREDIT CORPORATION
By: /s/ MICHAEL J. COE
Title: Vice President
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Exhibit A
to Amendment
Agreement
SCHEDULE 9.8
SUBSIDIARIES
Percentage Owned
by the Company and
Subsidiary its Subsidiaries
- - - ---------- ------------------
Manchester Plastics, Ltd., 100%
an Ontario Corporation
General Nuclear Corp., 100%
a Pennsylvania Corporation
Hughes Plastics, Inc., a 100%
Michigan corporation
LVB Industries, Inc., a 100%
Michigan corporation*
* To be merged with and into Hughes Plastics not later than three
Business Days after the acquisition thereof by the Company.
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Exhibit C
to Amendment
Agreement
SCHEDULE I
TO COMPANY PLEDGE AGREEMENT
STOCK
Pledged Shares
No. of as % of Total Total Shares of
Certificate Pledged Shares Issued Issuer
Issuer No. Shares and Outstanding Outstanding
- - - ------ ----------- ------- --------------- ---------------
Manchester Plastics, Ltd. C-4 56,453 65% 86,850
General Nuclear Corp. 3 7,544 Common 100% 7,544 Common
General Nuclear Corp. 3 11,316 Preferred 100% 11,316
Hughes Plastics, Inc. ---- 1,000 Common 100% 1,000