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EXHIBIT 10.1(e)
AMENDMENT NO, 4 AND AFFIRMATION OF GUARANTIES
This Amendment No. 4 and Affirmation of Guaranties (this "Amendment")
dated as of November 25, 1997 is by and among LDM Technologies, Inc., a
Michigan corporation ("Borrower"), and LDM Holding Canada, Inc., a Michigan
corporation ("LDM Holding"), LDM Technologies Company, a Nova Scotia unlimited
liability company ("LDM Canada"), Kenco Plastics, Inc., a Mchigan corporation
("Kenco Michigan"), and Kenco Plastics, Inc., a Kentucky Corporation
("Kenco Kentucky") (collectively, the "Guarantors"), and BankAmerica Business
Credit, Inc., a Delaware corporation, for itself as a Lender and as Agent for
the Lenders (in its capacities as Lender and as Agent, "Lender").
R E C I T A L S:
WHEREAS, Borrower and Lender are parties to a Loan and Security Agreement
dated as of January 22, 1997, as amended and otherwise modified prior to
the date hereof (as so amended and modified, and as the same may be
further amended, restated, supplemented or otherwise modified, the "Loan
Agreement"), pursuant to which Lender has made and may hereafter make loans,
advances and other extensions of credit to Borrower;
WHEREAS, Borrower wishes to obtain, and Lender is willing to grant, an
amendment to the Loan Agreement as set forth herein, subject to the express
terms and conditions specified in this amendment; and
WHEREAS, this Amendment shall constitute a Loan Document, these Recitals
shall be construed as part of this Amendment and capitalized terms used but not
otherwise defined in this Amendment shall have the meanings ascribed to them in
the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing and the agreements,
promises and covenants set forth below, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. Amendment of Loan Agreement.
(a) SECTION 1.1 OF THE LOAN AGREEMENT IS HEREBY AMENDED BY ADDING THE
FOLLOWING DEFINITIONS IN THEIR PROPER ALPHABETICAL ORDER:
"Aeroquip" means a division of Aeroquip-Vickers International
GmbH.
"Aeroquip Acquisition" means the acquisition by the Borrower
through its wholly-owned subsidiary LDM Germany of substantially
all of the assets of the Beinheim business of Aeroquip-Vickers
International GmbH.
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"Aeroquip Acquisition Agreement" means that certain Acquisition
Agreement dated as of November 12, 1997, between the Borrower
and Aeroquip-Vickers International GmbH.
"LDM Germany" means Anja Verwaltungsgesellischaft mbH, a
wholly-owned Subsidiary of the Borrower, which intends to
change its name to LDM Technologies GmbH.
(b) SECTION 1.1 OF THE LOAN AGREEMENT IS HEREBY FURTHER AMENDED BY
DELETING THE DEFINITION OF "INTERCOMPANY NOTE", "RESTRICTED INVESTMENT" AND
"REVOLVER AVAILABILITY" AND REPLACING SUCH DEFINITIONS WITH THE FOLLOWING:
"Intercompany Note" shall mean a demand note evidencing an
Intercompany Loan made by Borrower pursuant to Section 9.13(d),
such demand note to be in form and substance satisfactory to
Agent.
"Restricted Investment" means any acquisition of property by the
Borrower or LDM Canada in exchange for cash or other property,
whether in the form of an acquisition of stock, debt, or other
indebtedness or obligation, or the purchase or acquisition of any
other property, or a loan, advance, capital contribution, or
subscription, except (A) the Borrower may make intercompany loans
to (x) LDM Canada pursuant to Section 9.13(d)(I), (y) LDM Germany
pursuant to Section 9.13(d)(II), and (z) to the Kenco Companies
pursuant to Section 9.13(e), (B) the Borrower may make common
equity contributions to LDM Germany on or prior to November 25,
1997 in an aggregate amount of $2,140,000, and (C) acquisitions of
the following: (a) Equipment to be used in the business of the
Borrower or LDM Canada so long as the acquisition costs thereof
constitute Capital Expenditures permitted hereunder; (b) goods
held for sale or lease or to be used by the Borrower or LDM Canada
in the ordinary course of business; (c) current assets arising
from the sale or lease of goods or the rendition of services in
the ordinary course of business of the Borrower or LDM Canada;BB
(d) direct obligations of the United States of America, or any
agency thereof, or obligations guaranteed by the United States of
America, provided that such obligations mature within one year
from the date of acquisition thereof; (e) certificates of deposit
maturing within one year from the date of acquisition, bankers'
acceptances, Eurodollar bank deposits, or overnight bank deposits,
in each case issued by, created by, or with a bank or trust
company organized under the laws of the United States or any state
thereof having capital and surplus aggregating at least
$100,000,000; (f) commercial paper given a rating of "A2" or better
by Standard & Poor's Corporation or "P2" or better by Moody's
Investors Service, Inc. and maturing not more than 90 days from
the date of creation thereof; (g) life insurance premiums of up to
$1,500,000 per annum for life insurance on the lives of the
Borrower's principal stockholders; (h) loans to employees
outstanding as of the Closing Date; (i) loans and advances in the
ordinary of business to officers, directors and employees for
business-related travel expenses, moving expenses and other similar
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expenses in an aggregate principal amount not to exceed $250,000
at any time; and (j) the conversion of all or portion of the
Closing Date Intercompany Note into equity interests of a
Guarantor (other than LDM Holding).
"Revolver Availability" means, at any time, the lesser of:
(A) the Maximum Revolving Amount at such time;
or
(B) the Borrower's Borrowing Base at such time plus the LDM Canada
Borrowing Base, less
(C) in each case, the sum of the following:
(i) the unpaid balance of Revolving Loans at such time;
(ii) the aggregate undrawn face amount of all outstanding
Letters of Credit which the Agent has caused to be issued
or obtained for the Borrower's account;
(iii) the aggregate amount of Pending Revolving Loans;
(iv) the aggregate amount of unpaid reimbursement
obligations in respect of Letters of Credit;
(v) reserves for accrued interest on the Obligations; and
(vi) the Environmental Compliance Reserve;
provided, however, that at no time shall Revolver Availability exceed the amount
of Senior Debt (as defined in the Indenture) attributable to this Agreement
permitted to be incurred pursuant to Section 4.03 of the Indenture.
(d) ARTICLE 8 OF THE LOAN AGREEMENT IS HEREBY AMENDED BY ADDING
THE FOLLOWING SUBSECTION AT THE END THEREOF:
8.36 Aeroquip Acquistion Agreement. As of November 25, 1997, the
Borrower has delivered to the Agent a complete and correct copy of the Aeroquip
Acquisition Agreement (including all schedules, exhibits, amendments,
supplements, modifications, assignments and all other documents delivered
pursuant thereto or in connection therewith). Neither the Borrower nor any
other party thereto is in default in the performance or compliance with any
provisions thereof. The Aeroquip Acquisition Agreement is in compliance with
applicable laws and the Acquisition has been consummated in accordance with
applicable laws and regulations. The
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Aeroquip Acquisition Agreement is in full force and effect as of November 25,
1997 and has not been terminated, rescinded or withdrawn. All requisite
approvals by Governmental Authorities having jurisdiction over the Borrower or
its Subsidiaries, and other Persons referenced therein, with respect to the
transactions contemplated by the Aeroquip Acquisition Agreement, have been
obtained, and no such approvals impose any conditions to the consummation of
the transactions contemplated by the Aeroquip Acquisition Agreement or to the
conduct by the Borrower or any Subsidiary of its business thereafter. To the
best of Borrower's knowledge, none of the sellers' representations or
warranties in the Aeroquip Acquisition Agreement contain any untrue statement
of a material fact or omit any fact necessary to make the facts therein not
misleading. Each of the representations or warranties given by the Borrower in
the Aeroquip Acquisition Agreement is true and correct in all material
respects. Notwithstanding anything contained in the Aeroquip Acquisition
Agreement to the contrary, such representations and warranties of the Borrower
are incorporated into this Agreement by this Section 8.36 and shall, solely for
purposes of this Agreement and the benefit of the Lenders, survive both the
consummation of the Aeroquip Acquisition and the termination of the Aeroquip
Acquisition Agreement.
(e) SECTION 9.12 OF THE LOAN AGREEMENT IS HEREBY AMENDED BY ADDING
THE FOLLOWING IMMEDIATELY AFTER THE DOLLAR AMOUNT $"1,000,000" APPEARING THERE-
IN:
and the Kenco Companies shall be permitted to issue subordinated
Guaranties pursuant to Section 4.19 of the Indenture.
(f) SECTION 9.13 OF THE LOAN AGREEMENT IS HEREBY AMENDED BY (W)
DELETING CLAUSE (D) CONTAINED THEREIN IN ITS ENTIRETY AND REPLACING IT WITH THE
FOLLOWING NEW CLAUSE (D):
(d) Debt consisting of intercompany loans and advances
("Intercompany Loans") made by the Borrower to (I) LDM
Canada, provided that (i) LDM Canada shall have executed
and delivered to the Borrower, on the Closing Date, an
Intercompany Note to evidence any such Intercompany Loan,
any security interests granted to the Borrower on the
assets of LDM Canada to secure the payments under
its Intercompany Note shall be assigned to the Agent
pursuant to documentation in form and substance acceptable
to the Agent, and such Intercompany Note shall be pledged
to the Agent pursuant to the Pledge Agreement as additional
collateral security for the Obligations, (ii) the Borrower
shall record all such Intercompany Loans on its books and
records in a manner satisfactory to Agent, (iii) at the time
any such Intercompany Loans is made by the Borrower and
after giving effect thereto, each of the Borrower and LDM
Canada shall be Solvent, (iv) the aggregate outstanding
principal amount of Intercompany Loans under this clause
(I) shall not at any one time exceed $17,000,000,
consisting of the Closing Date Intercompany Loan and
additional loans not to exceed $1,000,000, plus an amount
equal to the sum of (A) an amount equal to the lesser of
(x) $5,000,000 and (y) LDM Canada's Borrowing Base, plus
(B) $4,000,000, provided, however, that the Intercompany
Loans pursuant to clauses (A) and
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(B) above shall not exceed in any fiscal quarter the amount
of LDM Canada's EBITDA for the immediately preceding
fiscal quarter and (II) LDM Germany, provided that (i) LDM
Germany shall have executed and delivered to the Borrower
an Intercompany Note to evidence any such Intercompany
Loan, and such Intercompany Note shall conform to the
requirements of a loan to an Unleveraged Wholly Owned
Restricted Subsidiary (as defined in the Indenture)
pursuant to the terms and conditions contained in the
Indenture, (ii) the Borrower shall record all such
Intercompany Loans on its books and records in a manner
satisfactory to Agent, (iii) at the time any such
Intercompany Loan is made by the Borrower and after giving
effect thereto, each of the Borrower and LDM Germany shall
be Solvent and (iv) the aggregate outstanding principal
amount of Intercompany Loans under this clause (II) shall
not at any one time exceed $10,160,000, consisting of a
$6,400,000 loan to be made on November 25, 1997 and
additional loans not to exceed $3,760,000,;
(x) DELETING THE WORD "AND" APPEARING AT THE END OF CLAUSE (e) APPEARING
THEREIN, (y) DELETING THE "." AT THE END OF CLAUSE (f) APPEARING THEREIN AND
REPLACING IT WITH "," AND (z) INSERTING THE FOLLOWING IMMEDIATELY AFTER CLAUSE
(f) APPEARING THEREIN:
and (g) Guaranties permitted pursuant to Section 9.12.
(g) SECTION 10.2 OF THE LOAN AGREEMENT IS HEREBY AMENDED BY (I)
DELETING THE PERIOD APPEARING AT THE END OF CLAUSE (B) CONTAINED THEREIN
AND REPLACING IT WITH "; AND ", AND (II) INSERTING THE FOLLOWING NEW CLAUSE (C)
THERETO:
(c) so long as any Senior Subordinated Notes remain outstanding,
at the time of each Borrowing and/or issuance of any Letter of Credit where,
after giving effect to such Borrowing and/or issuance, the aggregate principal
amount of outstanding Loans and the aggregate undrawn amount of all Letters of
Credit would be in excess of $45,000,000, the Lenders shall have received a
certificate, in form and substance satisfactory to the Agent, establishing to
the satisfaction of the Agent that the amount of Loans and/or Letters of
Credit, as the case may be, requested pursuant to the respective
Borrowing and/or issuance, as the case may be, are permitted to be incurred
without causing a violation of Section 4.03 of the Indenture.
2. Consent. Notwithstanding anything contained in Sections 9.9 and
9.21(i), (iii), (iv) and (v) of the Loan Agreement, the Lender hereby consents
to the formation of LDM Germany as a wholly-owned Subsidiary of the Borrower,
the execution, delivery and performance by LDM Germany of the Aeroquip Agreement
and the consummation of the Aeroquip Acquisition.
3. Warranties and Representations. Borrower and each Guarantor hereby
warrants and represents to Lender that:
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(a) Authorization, etc. Each of Borrower and each Guarantor has the
power and authority to execute, deliver and perform this Amendment and the Loan
Agreement, as amended hereby, as applicable. Each of Borrower and each
Guarantor has taken all necessary action (including, without limitation,
obtaining approval of its stockholders if necessary) to authorize its
execution, delivery and performance of this Amendment and the Loan Agreement,
as amended hereby, as applicable. No consent, approval or authorization of, or
declaration or filing with, any Governmental Authority, and no consent of any
other Person, is required in connection with Borrower's or any Guarantor's
execution, delivery and performance of this Amendment, except for those already
duly obtained. This Amendment has been duly executed and delivered by Borrower
and each Guarantor, and constitutes the legal, valid and binding obligation of
Borrower and such Guarantor, enforceable against it in accordance with its
terms without defense, setoff or counterclaim. Neither Borrower's nor any
Guarantor's execution, delivery and performance of this Amendment do or will
conflict with, or constitute a violation or breach of, or constitute a default
under, or result in the creation or imposition of any Lien upon the property of
Borrower or any of its Subsidiaries by reason of the terms of (a) any contract,
mortgage, Lien, lease, agreement, indenture or instrument to which Borrower or
any of its Subsidiaries is a party or which is binding upon it, (b) any
Requirement of Law applicable to Borrower or any of its Subsidiaries, or (c)
the certificate or articles of incorporation or by-laws, partnership agreement
or limited liability company agreement of Borrower or any of its Subsidiaries.
(b) Other Warranties and Representations. After giving effect to this
Amendment and the consent set forth in Section 2 hereof, all of the warranties
and representations of Borrower and each Guarantor contained in the Loan
Agreement, the Guarantor Guarantees and the other Loan Documents (including,
without limitations, this Amendment) are true and correct in all material
respects on and as of the date hereof to the same extent as though made on and
as of the date hereof (except those representations and warranties made
expressly as of a different date).
(c) No Default or Event of Default. After giving effect to this
Amendment and the consent set forth in Section 2 hereof, no Default or Event
of Default has occurred and is continuing as of the date hereof or would
result after giving effect to the Aeroquip Acquisition.
4. Conditions Precedent. Notwithstanding any other provision contained
in this Amendment or any other document, the effectiveness of this Amendment is
further expressly conditioned upon the satisfaction of each condition set
forth in this Section 4 and the delivery of the following documents to Lender
on or prior to the date hereof (unless another date shall be specified) and
consummation of all of the transactions contemplated by each such document, all
in form and substance and manner acceptable to Lender in its sole and absolute
discretion:
(a) Amendment. Lender shall have received a duly executed original
of this Amendment signed by Borrower and each Guarantor.
(b) Warranties and Representations. After giving effect to this
Amendment and the consent set forth in Section 2 hereof, all of the
warranties and representations of Borrower and each Guarantor contained in the
Loan Agreement, the Guarantor Guarantees and the other Loan
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Documents (including, without limitation, this Amendment) shall be true and
correct in all material respects on and as of the date hereof to the same
extent as though made on and as of the date hereof (except those
representations and warranties made expressly as of a different date).
(c) No Default or Event of Default. After giving effect to this
Amendment and the consent set forth in Section 2 hereof, no Default or
Event of Default shall have occurred and be continuing as of the date hereof or
would result after giving effect to the Aeroquip Acquisition.
(d) No Litigation. No litigation, investigation, proceeding,
injunction, restraint or other action shall be pending or threatened against
Borrower or any Affiliate of Borrower, or any officer, director, or
executive of any thereof, which restrains, prevents or imposes adverse
conditions upon, or which otherwise relates to, the execution, delivery or
performance of this Amendment or the Aeroquip Acquisition Agreement.
(e) Consents and Acknowledgments. Borrower shall have obtained all
consents, approvals and acknowledgments which may be required with respect
to the execution, delivery and performance of this Amendment and the Aeroquip
Acquisition Agreement.
(f) Fees, Costs and Expenses. Lender shall have received payment of
all fees, costs and including, without limitation, reasonable attorneys' fees
and expenses (including, without limitation, the allocated costs and
expenses of in-house counsel) invoiced to the Borrower and as otherwise due
pursuant to the Loan Agreement, incurred by Lender in connection herewith.
(g) Schedules. To the extent necessary to reflect the Aeroquip
Acquisition, the Borrower shall have provided to Lender within ten days after
the date hereof revised Schedules to the Loan Documents and the items set forth
on the Schedules shall be satisfactory to the Lender.
(h) Aeroguip Acquisition. The Lender shall have received evidence
satisfactory to Lender that the Borrower and the sellers under the Aeroquip
Acquisition Agreement shall have consummated the transactions contemplated by
the Aeroquip Acquisition Agreement in accordance with the terms set forth
therein (which terms and conditions shall be satisfactory to the Lender and
its counsel in all respects), and all documents required to be delivered
pursuant to the Aeroquip Acquisition Agreement shall have been executed and
delivered by the Persons specified therein, and the Borrower shall have
furnished to the Agent a certified copy of the Aeroquip Acquisition Agreement
and all exhibits and schedules thereto, as finally amended, and a certificate
signed by the chairman of the board of the Borrower certifying that (i) the
transactions contemplated by the Aeroquip Acquisition Agreement have been
consummated in accordance with the Aeroquip Acquisition Agreement and no term
or condition of the Aeroquip Acquisition Agreement has been amended, modified
or waived except as set forth in the certified copy of the Aeroquip Acquisition
Agreement provided to the Lender, (ii) any documents required to be filed to
effect the Aeroquip Acquisition Agreement have been filed in accordance with
applicable law, and (iii) neither the Borrower nor any of its Subsidiaries has
failed to perform any material obligation or covenant required by the Aeroquip
Acquisition Agreement to be performed or complied with by such Person on or
before the date of consummation of the Aeroquip Acquisition unless waived by
the sellers
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thereunder, and the substance of such certificate shall be true and correct,
and the Lender shall have received copies of the Aeroquip Acquisition
Agreement and the other documents required to be delivered pursuant to the
Aeroquip Acquisition Agreement and all consents, approvals or permits necessary
or advisable to be obtained in connection therewith, in form and substance
satisfactory to the Lender and its counsel.
(i) Resolutions. The Lender shall have received a certified copy of
the resolutions of the Borrower authorizing the execution and delivery of, and
the consummation of the transactions contemplated by, this Amendment and
the Aeraquip Acquisition Agreement and all other documents or instruments to be
executed and delivered in connection herewith and therewith and the performance
of its obligations hereunder and thereunder,
(j) Opinions. All opinions delivered in connection with the Aeroquip
Acquisition shall be addressed to the Agent and the Lenders or accompanied by a
written authorization from the Person delivering such opinion stating that the
Agent and the Lenders may rely on such document as though it were addressed to
them. The Borrower shall also deliver to the Agent an opinion of Dickinson,
Wright, Moon, Van Dusen & Freeman, addressed to the Agent and the Lenders, with
respect to the Borrower's continuing compliance with the Indenture after giving
effect to this Amendment, the formation of, and capitalization of, LDM Germany
and the Aeroquip Acquisition, such opinion to be in form and substance
satisfactory to the Agent.
(k) Indenture Guaranty. Borrower shall have delivered to Agent
evidence that the Kenco Companies have delivered the subordinated guarantee
required by Section 4.19 of the Indenture.
(1) Amendment Fee. Borrower shall have paid to BABC an amendment fee
in the amount of $25,000, such fee to be earned, and due and payable, on the
date Borrower executes this Amendment.
5. Further Assurances. Borrower hereby agrees, at its expense, to duly
execute, acknowledge and deliver to Lender all agreements, certificates,
instruments, opinions and other documents, and take all such actions, as Lender
may request in order to further effectuate the purposes of this Amendment and
to carry out the terms hereof.
6. No Novation, No Consent or Waiver. This Amendment is not, and shall
not be construed as, a novation, consent, waiver, release or modification with
respect to any of the terms, provisions, conditions, representations,
warranties, covenants, rights, powers or remedies set forth in the Loan
Agreement or any of the other Loan Documents, except for the specific instance
and purpose for which it is granted as expressly specified herein. Lender's
failure, at any time or times hereafter, to require strict performance by
Borrower of any provision or term of this Amendment shall not waive, affect or
diminish any right of Lender thereafter to demand strict compliance and
performance herewith. None of the undertakings, agreements, warranties,
covenants and representations of Borrower contained in this Amendment shall be
deemed to have been suspended or waived by under unless such suspension or
waiver is (a) in writing and signed by Lender and (b) delivered to Borrower,
notwithstanding any prior practice or course of dealing, or any waiver,
forbearance or
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other similar agreement or understanding, whether any of the foregoing were or
are oral or written, by or between the parties hereto.
7. Documents Remain in Effect. Except as amended and modified by this
Amendment, the Loan Agreement and the other Loan Documents remain in full force
and effect, and Borrower and each Guarantor hereby ratify, adopt and
confirm their representations, warranties, agreements and covenants contained
in, and obligations and liabilities under, the Loan Agreement and the other
Loan Documents.
8. Reference to Loan Agreement. On and after the effectiveness of this
Amendment, each reference in the Loan Agreement, as amended hereby, to "this
Agreement", "hereunder", "hereof", "herein" or words of like import, and
each reference to the "Loan Agreement" in any other Loan Document, or in any of
the 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 hereby.
9. Incorporation of Loan Agreement. Article 15 of the Loan Agreement is
incorporated herein by reference with the same effect as if set forth in full
herein with only those modifications necessary to permit such Article to refer
to this Amendment.
10. Affirmation of Guaranties. Each of LDM Holding, LDM Canada, Kenco
Michigan, and Kenco Kentucky (i) consents to and approves the execution and
delivery of this Amendment by the parties hereto, (ii) agrees that this
Amendment does not and shall not limit or diminish in any manner the
obligations of the Guarantors under their respective Guarantor Guarantees, or
under any of the other documents executed and/or delivered by any of the
Guarantors in connection therewith, and agrees that such obligations of the
Guarantors would not be limited or diminished in any manner even if the
Guarantors had not executed this Amendment, (iii) agrees that this Amendment
shall not be construed as requiring the consent of the Guarantors in any other
circumstance, (iv) reaffirms its obligations under each of the Guarantor
Guarantees and such other related documents, and (v) agrees that the Guarantor
Guarantees and such other related documents remain in full force and effect and
are each hereby ratified and confirmed.
11. Facsimile Transmission Counterparts. Delivery of an executed
counterpart of a signature page to this Amendment by facsimile transmission
shall be effective as delivery of a manually executed counterpart of this
Amendment.
[signature page follows]
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IN WITNESS WHEREOF, this Amendment No. 4 and Affirmation of Guaranties
has been duly executed as of the date first written above.
LDM TECHNOLOGIES, INC.
By: [SIG]
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Title: CEO
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LDM HOLDING CANADA, INC.
By: [SIG]
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Title: CEO
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LDM TECHNOLOGIES COMPANY
By: [SIG]
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Title: CEO
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KENCO PLASTICS, INC., a Kentucky corporation
By: [SIG]
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Title: CEO
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KENCO PLASTICS, INC., a Michigan corporation
By: [SIG]
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Title: CEO
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BANKAMERICA BUSINESS CREDIT, INC.,
as Lender and as Agent
By:
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Title:
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