AMENDMENT NO. 8 TO LOAN AND SECURITY AGREEMENT
J.B. POINDEXTER & CO., INC.
1100 Louisiana Street
Suite 5400
Houston, Texas 77002
As of October 31, 2000
Congress Financial Corporation
1133 Avenue of the Americas
New York, New York 10036
Ladies and Gentlemen:
Congress Financial Corporation ("Lender"), J.B. Poindexter & Co., Inc.
("Borrower"), EFP Corporation ("EFP"), Lowy Group, Inc. ("Lowy"), Magnetic
Instruments Corp. ("MIC"), Morgan Trailer Mfg. Co. ("Morgan"), Truck Accessories
Group, Inc. ("TAG"), Raider Industries Inc. ("Raider"), KWS Manufacturing
Company, Inc. ("KWS"), Universal Brixius, Inc. ("Brixius"), Morgan Trailer
Financial Corporation ("MTFC") and Morgan Trailer Financial Management, L. P.
("MTF Management", and together with EFP, Lowy, MIC, Morgan, TAG, Raider, KWS,
Brixius and MTFC, each individually sometimes referred to herein as a
"Guarantor" and, collectively, "Guarantors") have entered into certain financing
arrangements as set forth in the Loan and Security Agreement, dated as of June
28, 1996, by and among Lender, Borrower and Guarantors, as amended by Amendment
No. 1 to Loan and Security Agreement, dated May 13, 1998, Amendment No. 2 to
Loan and Security Agreement, dated as of June 30, 1998, Amendment No. 3 to Loan
and Security Agreement, dated as of June 24, 1999, Amendment No. 4 to Loan and
Security Agreement, dated as of February 25, 2000, Amendment No. 5 to Loan and
Security Agreement, dated as of March 8, 2000 ("Amendment No. 5 to Loan
Agreement"), Amendment No. 6 to Loan and Security Agreement, dated as of March
17, 2000, Amendment No. 7 to Loan and Security Agreement, dated as of September
29, 2000, and as further amended by this Amendment No. 8 to Loan and Security
Agreement (this "Amendment"), dated as of the date hereof (and as heretofore
amended or may hereafter be further amended, modified, supplemented, extended,
renewed, restated or replaced, the "Loan Agreement"), together with all other
agreements, documents, supplements and instruments now or at any time hereafter
executed and/or delivered by any other person, with, to or in favor of Lender in
connection therewith (all of the foregoing, together with this Amendment and the
other agreements and instruments delivered hereunder, as the same now exist or
may hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, collectively, the "Financing Agreements").
Borrower and Guarantors have requested that Lender enter into certain
amendments to the Loan Agreement. Lender is willing to agree to the foregoing,
subject to the terms and conditions contained herein.
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In consideration of the foregoing, the mutual agreements and covenants
contained in this Amendment, and other good and valuable consideration, the
adequacy and sufficiency of which are hereby acknowledged, Borrower, Guarantors
and Lender agree as follows:
1. Definitions.
2.
(a) Amendment to Definition.
(b)
(i) KWS Supplemental Revolving Loan Termination Date. Effective as of September
30, 2000, Section 1(a)(xix) of Amendment No. 5 to Loan Agreement is hereby
deleted in its entirety and replaced with the following:
(ii)
(iii) "(xix) KWS Supplemental Revolving Loan Termination Date shall mean the
earlier to occur of (A) March 1, 2002 or (B) Lender's determination that as of
the end of the fiscal quarter of KWS set forth below, the Fixed Charge Coverage
Ratio of KWS shall be less than the ratio set forth below next to such fiscal
quarter:
(iv)
(v) Fiscal Quarter Ending Fixed Charge Coverage Ratio
(vi) June 30, 2000 1.0:1.0
(vii) September 30, 2000 .4:1.0
(viii) December 31, 2000 .5:1.0
(ix) March 31, 2001 .68:1.0
(x) June 30, 2001 .65:1.0
(xi) September 30, 2001 and 1.0:1.0"
(xii) as of the end of all fiscal
(xiii) quarters thereafter
(xiv)
(c) Interpretation. For purposes of this Amendment, unless otherwise defined
herein, all capitalized terms used herein, shall have the respective meanings
ascribed to them in the Loan Agreement.
(d)
3. Waiver.
4.
(a) Notwithstanding anything to the contrary contained in Section 5 of the Loan
Agreement, subject to the terms and conditions contained herein, effective as of
September 30, 2000, Lender waives the automatic payment in full of the KWS
Supplemental Revolving Loans through the date hereof as a result of the
occurrence of the KWS Supplemental Revolving Loan Termination Date solely by
reason of the failure of KWS to maintain a Fixed Charge Coverage Ratio of
1.0:1.0 as of the fiscal quarter ended September 30, 2000.
(b)
(c) Lender has not waived and is not by this Amendment waiving, and has no
intention of waiving, any other failure to comply with the Fixed Charge Coverage
Ratio required to be maintained as set forth in the definition of the KWS
Supplemental Revolving Loan Termination Date as amended hereby, which may have
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occurred before the date hereof, or may be continuing on the date hereof or that
may occur after the date hereof, other than the failure to maintain a Fixed
Charge Coverage Ratio of 1.0:1.0 as of the fiscal quarter ended September 30,
2000. Lender reserves the right, in its discretion, to exercise any or all of
its rights and remedies arising under the Financing Agreements, applicable law
or otherwise as a result of any other occurrence of the KWS Supplemental
Revolving Loan Termination Date that may have occurred before the date hereof,
or is continuing on the date hereof, or that may occur after the date hereof for
non-compliance with the Fixed Charge Coverage Ratio or otherwise, other than the
failure to maintain a Fixed Charge Coverage Ratio of 1.0:1.0 as of the fiscal
quarter ended September 30, 2000.
(d)
5. Representations, Warranties and Covenants. In addition to the continuing
representations, warranties and covenants heretofore or hereafter made by
Borrower and Guarantors to Lender pursuant to the other Financing Agreements,
Borrower and Guarantors hereby represent, warrant and covenant with and to
Lender as follows (which representations, warranties and covenants are
continuing and shall survive the execution and delivery hereof and shall be
incorporated into and made a part of the Financing Agreements):
6.
(a) This Amendment has been duly authorized, executed and delivered by Borrower
and each Guarantor, and the agreements and obligations of Borrower and each
Guarantor contained herein constitute legal, valid and binding obligations of
Borrower and each Guarantor enforceable against Borrower and each Guarantor in
accordance with their respective terms.
(b)
(c) Neither the execution and delivery of this Amendment, nor the modifications
to the Financing Agreements contemplated by this Amendment shall violate any
applicable law or regulation, or any order or decree of any court or any
governmental instrumentality in any respect or does or shall conflict with or
result in the breach of, or constitute a default in any respect under, any
indenture, including, without limitation, the Senior Note Indenture, or any
material mortgage, deed of trust, security agreement, agreement or instrument to
which Borrower and each Guarantor is a party or may be bound, or violate any
provision of the organizational documents of Borrower and each Guarantor.
(d)
(e) All of the representations and warranties set forth in the Loan Agreement as
amended hereby, and the other Financing Agreements, are true and correct in all
material respects, except to the extent any such representation or warranty is
made as of a specified date, in which case such representation or warranty shall
have been true and correct as of such date.
(f)
(g) After giving effect to the amendments to the Loan Agreement provided in this
Amendment, no Event of Default shall exist or have occurred and no event, act or
condition shall have occurred or exist which with notice or passage of time or
both would constitute an Event of Default.
(h)
7. Condition Precedent. The effectiveness of this Amendment and the agreement of
Lender to the waiver, modifications and amendments set forth herein are subject
to the receipt by Lender of an executed original (or facsimile copy) or executed
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original (or facsimile copy) counterparts of this Amendment, as the case may be,
duly authorized, executed and delivered by Borrower and Guarantors.
8.
9. Effect of this Amendment. Except for the specific waiver and amendments
expressly set forth herein, no other waiver, changes or modifications to the
Financing Agreements, and no waivers of any provisions thereof are intended or
implied, and in all other respects the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
date hereof. To the extent of conflict between the terms of this Amendment and
the other Financing Agreements, the terms of this Amendment shall control. The
Loan Agreement and this Amendment shall be read and construed as one agreement.
10.
11. Governing Law. The rights and obligations hereunder of each of the parties
hereto shall be governed by and interpreted and determined in accordance with
the internal laws of the State of New York (without giving effect to principles
of conflicts of laws).
12.
13. Binding Effect.This Amendment shall be binding upon and inure to the benefit
of each of the parties hereto and their respective successors and assigns.
14.
15. Counterparts. This Amendment may be executed in any number of counterparts,
but all of such counterparts shall together constitute but one and the same
agreement. In making proof of this Amendment, it shall not be necessary to
produce or account for more than one counterpart thereof signed by each of the
parties hereto.
16.
17.
18.
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Please sign in the space provided below and return a counterpart of
this Amendment, whereupon this Amendment, as so agreed to and accepted by
Lender, shall become a binding agreement among Borrower, Guarantors and Lender.
Very truly yours,
J.B. POINDEXTER & CO., INC.
By:
Title:
AGREED AND ACCEPTED:
CONGRESS FINANCIAL CORPORATION
By:
Title:
ACKNOWLEDGED AND CONSENTED TO:
EFP CORPORATION
By:
Title:
LOWY GROUP, INC.
By:
Title:
[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
MAGNETIC INSTRUMENTS CORP.
By:
Title:
MORGAN TRAILER MFG. CO.
By:
Title:
TRUCK ACCESSORIES GROUP, INC.
By:
Title:
RAIDER INDUSTRIES INC.
By:
Title:
KWS MANUFACTURING COMPANY, INC.
By:
Title:
UNIVERSAL BRIXIUS, INC.
By:
Title:
[SIGNATURES CONTINUE ON NEXT PAGE]
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[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
MORGAN TRAILER FINANCIAL CORPORATION
By:
Title:
MORGAN TRAILER FINANCIAL MANAGEMENT, L.P.
By: MORGAN TRAILER MFG. CO., as General Partner
By:__________________________________
Title:_________________________________
