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Exhibit 10.1.1
SECOND AMENDMENT
TO
FINANCING AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO FINANCING AND SECURITY AGREEMENT (this
"Agreement") is made as of the 31st day of December, 1998, by GLASSTECH, INC., a
corporation organized under the laws of Delaware (the "Borrower"), and
NATIONSBANK, N.A., a national banking association (the "Lender").
RECITALS
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A. The Borrower and the Lender entered into a Financing and Security
Agreement dated July 2, 1997 (the same, as amended by First Amendment to
Financing and Security Agreement dated October 29, 1997 and as amended,
modified, substituted, extended, and renewed from time to time, the "Financing
Agreement"). The Financing Agreement provides for some of the agreements between
the Borrower and the Lender with respect to the "Loans" (as defined in the
Financing Agreement), including revolving credit facility in an amount not to
exceed $10,000,000.
B. The Borrower has requested that the Lender agree to the changes to
certain reporting requirements contained in the Financing Agreement.
C. The Lender is willing to agree to the Borrower's request on the
condition, among others, 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.
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(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.
(d) 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 execution of this Agreement.
(e) 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 which
has not been waived in writing by the Lender.
3. The definition of "Net Worth" contained in Section 1.1 of the
Financing Agreement is hereby amended to read as follows:
"Net Worth" means as to the Borrower its shareholders
equity, as determined in accordance with GAAP except that there shall
be excluded from the calculation of shareholders equity any provision
for income taxes imputed in accordance with GAAP, but for which there
is no corresponding tax liability or for which there has been and will
be no payment, provided, however, that the amount of the exclusion
shall not exceed the amount deducted from goodwill with respect to such
provision.
4. Section 6.1.15 of the Financing Agreement is hereby amended in its
entirety to read as follows:
6.1.15 Financial Covenants.
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(b) Net Worth. The Borrower will at
all times maintain, tested on the Closing Date and as of the end of
each of the Borrower's fiscal quarters commencing September 30, 1997,
a Net Worth of not less than the following:
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Period Amount
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July 3, 1997 through and including $14,500,000
June 29, 2001
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June 30, 2001 and thereafter $16,000,000
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5. The Borrower and the Lender confirm their prior letter agreement
that all computations determining compliance with financial covenants in the
Financing Agreement shall be made without giving to the effect to the reduction
in the Borrower's opening shareholder's equity required by EITF 88-16 and that
no Default or Event of Default exists or shall exist under the Financing
Agreement on account of such reduction.
6. The Borrower hereby issues, ratifies and confirms the
representations, warranties and covenants contained in the Financing Agreement,
as amended hereby. The Borrower agrees that this Agreement is not intended to
and shall not cause a novation with respect to any or all of the Obligations.
7. The Borrower shall pay at the time this Agreement is executed and
delivered an amendment fee in the amount of $5,000 and all fees, commissions,
costs, charges, taxes and other expenses incurred by the Lender and its counsel
in connection with this Agreement, including, but not limited to, reasonable
fees and expenses of the Lender's counsel and all recording fees, taxes and
charges.
8. This Agreement may 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 who 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.
WITNESS: NATIONSBANK, N.A.
/s/ Cherilyn Sauers By: /s/ Melba B. Quizon (SEAL)
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Melba B. Quizon
Vice President
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WITNESS: GLASSTECH, INC.
/s/ Brenda M Rogge By: /s/ Diane S. Tymiak (SEAL)
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Name: Diane S. Tymiak
Title: Vice President
and Chief Financial Officer
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