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EXHIBIT 10.1.4
FIFTH AMENDMENT TO FINANCING AND SECURITY AGREEMENT
THIS FIFTH AMENDMENT TO FINANCING AND SECURITY AGREEMENT (this
"Agreement") is made as of September 26, 2001, by GLASSTECH, INC., a corporation
organized under the laws of Delaware (the "Borrower"), and UPS CAPITAL
CORPORATION, a Delaware corporation ("Lender"), as successor-in-interest to BANK
OF AMERICA, N.A., a national banking association, formerly "NationsBank, N.A."
("BofA").
RECITALS
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A. The Borrower and BofA entered into a Financing and Security
Agreement dated July 2, 1997 (the same, as amended, modified, substituted,
extended and renewed from time to time, the "Financing Agreement"). Effective as
of August 31, 2001, Lender assumed from BofA all of its right, title and
interest in, to and under the Financing Agreement. The Financing Agreement
provides for agreements between the Borrower and the Lender with respect to the
"Loans" (as defined in the Financing Agreement).
B. The Borrower has requested that the Lender amend certain financial
covenants contained in the Financing Agreement.
C. The Lender is willing to agree to the Borrower's request on the
condition that this Agreement be executed.
AGREEMENTS
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NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, receipt of which is hereby acknowledged, the Borrower
and the Lender agree as follows:
1. The Borrower and the Lender agree that the Recitals above are a part
of this Agreement. Unless otherwise expressly defined in this Agreement, terms
defined in the Financing Agreement shall have the same meaning under this
Agreement.
2. The Borrower represents and warrants to the Lender as follows:
(a) The Borrower is a corporation duly organized, and validly
existing and in good standing under the laws of the state in which it was
organized and is duly qualified to do business as a foreign corporation in good
standing in every other state wherein the conduct of its business or the
ownership of its property requires such qualification and in which the failure
to qualify would materially adversely affect the business, operations or
properties of the Borrower and/or its Subsidiaries.
(b) The Borrower has the power and authority to execute and
deliver this Agreement and perform its obligations hereunder and has taken all
necessary and appropriate corporate action to authorize the execution, delivery
and performance of this Agreement.
(c) The Financing Agreement, as amended by this Agreement, and
each of the other Financing Documents remains in full force and effect, and each
constitutes the valid and legally binding obligation of the Borrower,
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
rights and remedies of creditors and secured parties, and general principles of
equity regardless of whether applied in a proceeding in equity or at law.
(d) After giving effect to this Agreement, all of the
Borrower's representations and warranties contained in the Financing Agreement
are true and correct on and as of the date of the Borrower's
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execution of this Agreement, except that the representations and warranties
which relate to financial statements which are referred to in Section 4.1.11 of
the Financing Agreement, shall also be deemed to cover financial statements
furnished from time to time to the Lender pursuant to Section 6.1.1 (Financial
Statements) of the Financing Agreement.
(e) After giving effect to this Agreement, no Event of Default
and no event which, with notice, lapse of time or both would constitute an Event
of Default, has occurred and is continuing under the Financing Agreement or the
other Financing Documents.
(f) No right of setoff, defense, counterclaim, cross-claim or
recoupment claim exists in favor of the Borrower in respect of its obligations
under the Financing Agreement.
3. The Borrower acknowledges, consents to and agrees to be bound by the
assignment of BofA to Lender of its right, title and interest as "Lender" under
the Financing Agreement and in respect of the Obligations, effective as of
August 31, 2001, and further agrees, in connection therewith, (a) to attorn to
Lender as "Lender" under the Financing Agreement effective as of and from such
assignment date, and (b) that Lender shall be released from, and shall have no
liability to the Borrower for, any action (or inaction) taken (or omitted) by
BofA as "Lender" in respect of Borrower or pursuant to the Financing Agreement
prior to such assignment becoming effective.
4. Section 6.1.15 ("Financial Covenants") shall be amended by adding
immediately after the end of existing subsection (a) thereof ("Fixed Charge
Coverage Ratio"), as an addition to said subsection (a), the following
paragraph, effective retroactive to June 29, 2001:
Notwithstanding the foregoing, in respect of the fiscal quarter of the
Borrower ending on June 30, 2001 (and only for such fiscal quarter),
compliance by Borrower with the financial covenant set forth in the
aforesaid subsection (a) shall be waived if, but only if, the Borrowing
Base, as then most recently reported, exceeds the aggregate principal
amount of the Revolving Loan and Outstanding Letter of Credit
Obligations on such fiscal quarter end date by at least $1,000,000. In
addition to the foregoing, in respect of the fiscal quarter of Borrower
ending on September 30, 2001 (and only for such fiscal quarter),
notwithstanding anything contained in this Agreement to the contrary,
until the date on which Borrower is required to submit a Compliance
Certificate with respect to such quarterly period under Section 6.1(c)
of this Agreement (the "Report Date"), Borrower may disregard its
compliance, or lack thereof, with the financial covenant set forth in
subsection (a) above, to the extent that any such non-compliance or the
failure to report the same, would constitute a Default, Event of
Default or breach of any of Borrower's obligations under this
Agreement, including, without limitation for purposes of (i) any Loan
Notice, Borrowing Base Report or other written submission of Borrower
to Lender, (ii) any requests by Borrower of Lender pursuant to this
Agreement, including, without limitation, any requests for the advance
of funds or for selection of an interest rate (as contemplated by
Section 2.3.2) or otherwise, or (iii) any representation, warranty or
covenant contained in the Financing Agreement, PROVIDED, HOWEVER, that
Borrower shall be required to comply with such financial covenant on
the Report Date.
5. The Borrower shall pay at the time this Agreement is executed and
delivered an amendment fee in the amount of $5,000, which amendment fee is fully
earned and non-refundable.
6. The Borrower shall pay at the time this Agreement is executed and
delivered all fees, commissions, costs, charges, taxes and other expenses
incurred by the Lender and its counsel in connection
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with this Agreement, including, but not limited to, reasonable fees and expenses
of the Lender's counsel, all recording fees, taxes and charges and costs of lien
search reports.
7. This Agreement may be executed in any number of duplicate originals or
counterparts, each of such duplicate originals or counterparts shall be deemed
to be an original and taken together shall constitute but one and the same
instrument. The parties agree that their respective signatures may be delivered
by facsimile. Any party which chooses to deliver its signature by facsimile
agrees to provide a counterpart of this Agreement with its inked signature
promptly to each other party.
IN WITNESS WHEREOF, the Borrower and the Lender have executed this
Agreement under seal as of the date and year first written above.
UPS CAPITAL CORPORATION
By: /s/ Scott J.Mower
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Name: Scott J. Mower
Title: Managing Director
GLASSTECH, INC.
By: /s/ Mark D. Christman
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Name: Mark D. Christman
Title: President and Chief Executive Officer
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