Exhibit 10(i)
WAIVER AND EIGHTH AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS
WAIVER AND EIGHTH AMENDMENT TO AMENDED AND RESTATED CREDIT
AGREEMENT (this “ Amendment ”) dated as
of March 25, 2005, is by and among CLARION TECHNOLOGIES, INC., a
Delaware corporation (the “ Company ”),
and its subsidiaries party hereto (the Company and its subsidiaries
are collectively referred to herein as the “ Loan
Parties ” and individually referred to herein as a
“ Loan Party ”), the financial
institutions that are or may from time to time become parties
hereto (together with their respective successors and assigns, the
“ Banks ”), and JPMORGAN CHASE BANK,
N.A., successor by merger to Bank One, NA, a national banking
association, as agent on behalf of the Banks (in such capacity, the
“ Agent ”).
RECITALS
A.
The Loan Parties, the Banks, and the Agent are parties to that
certain Amended and Restated Credit Agreement dated as of April 14,
2003 (as amended, modified, restated, or replaced from time to
time, the “Credit Agreement ”), pursuant
to which the Banks agreed, subject to the terms thereof, to extend
credit to the Loan Parties. For purposes hereof, the term
“Loan Documents” shall mean such term as defined in the
Credit Agreement, plus this Amendment, and any documents executed
and delivered in conjunction with this Amendment.
B.
The Loan Parties have advised the Agent that prior to the date
hereof an Event of Default has occurred under the terms of the
Credit Agreement on account of the Loan Parties’ failure to
comply with the provisions of each of Sections 10.6.1-10.6.6 of the
Credit Agreement as of the fiscal quarter ending on or about
December 31, 2004, and the provisions of each of Sections 10.6.5
and 10.6.6 of the Credit Agreement as of the end of January, 2005
and February, 2005, and have requested that the Agent and the Banks
waive such Event of Default. The Agent and the Banks are willing to
provide the waiver requested by the Loan Parties on the terms set
forth herein.
C.
The parties hereto further desire to amend the Credit Agreement as
set forth herein.
TERMS
In
consideration of the premises and of the mutual agreements herein
contained, the parties hereto agree as follows:
ARTICLE
I. WAIVER AND AMENDMENT . Upon the conditions set forth in
Article III being fulfilled, (a) the Agent and the Banks waive any
Event of Default arising under the Credit Agreement on account of
the Loan Parties’ failure to comply with the terms of each of
Sections 10.6.1, 10.6.2,10.6.3,10.6.4,10.6.5, and 10.6.6 of the
Credit Agreement, in each case as of the end of the fiscal quarter
ending on or about December 31, 2004, and in the cases of each of
Sections 10.6.5 and 10.6.6 of the Credit Agreement, as of the end
of January, 2005 and February, 2005, and (b) the Credit Agreement
shall be amended as follows:
1
1.1 Section 10.6.1 of the
Credit Agreement is amended and restated in full, to read as
follows:
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10.6.1
Fixed Charge Coverage Ratio . Not permit the Fixed Charge
Coverage Ratio to be less than 0.50 to 1.00 as of the end of the
Company’s fiscal quarter ending on or about March 31, 2005;
such ratio to be determined in accordance with GAAP for the period
of four consecutive fiscal quarters of the Company then
ending.
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1.2 Section 10.6.2 of the
Credit Agreement is amended and restated in full, to read as
follows:
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10.6.2
Senior Debt to EBITDA Ratio . Not permit the Senior Debt to
EBITDA Ratio to be greater than 5.10 to 1.00 as of the end of the
Company’s fiscal quarter ending on or about March 31, 2005;
such ratio to be determined in accordance with GAAP using the ratio
of Senior Debt as of the end of such fiscal quarter to EBITDA for
the period of four consecutive fiscal quarters of the Company then
ending.
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1.3 Section 10.6.3 of the
Credit Agreement is amended and restated in full, to read as
follows:
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10.6.3
Total Debt to EBITDA Ratio . Not permit the Total Debt to
EBITDA Ratio to be greater than 9.25 to 1.00 as of the end of the
Company’s fiscal quarter ending on or about March 31, 2005;
such ratio to be determined in accordance with GAAP using the ratio
of Total Debt as of the end of such fiscal quarter to EBITDA for
the period of four consecutive fiscal quarters of the Company then
ending.
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1.4 Section 10.6.4 of the
Credit Agreement is amended and restated in full, to read as
follows:
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10.6.4
EBITDA . Not permit EBITDA to be less than negative
$1,250,000 for the Company’s fiscal quarter ending on or
about March 31, 2005; such amount to be determined in accordance
with GAAP for the period of such fiscal quarter of the Company then
ending.
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1.5 Section 10.6.5 of the
Credit Agreement is amended and restated in full, to read as
follows:
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10.6.5
Total Liabilities to Tangible Capital Funds Ratio . Not
permit the Total Liabilities to Tangible Capital Funds Ratio to be
greater than 12.00 to 1.00 as of the end of March, 2005; such ratio
to be determined in accordance with GAAP as of such
month-end.
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2
1.6 Section 10.6.6 of the
Credit Agreement is amended and restated in full, to read as
follows:
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10.6.6
Adjusted Working Capital . Not permit Adjusted Working
Capital to be less than negative $11,500,000 as of March 31, 2005;
such amount to be determined in accordance with GAAP as of such
month-end.
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1.7
The Loan Parties
specifically acknowledge and agree that the waiver set forth herein
is a limited waiver, granted only with respect to the specific
Events of Default described herein, and that each term and
provision of the Loan Documents (as amended by this Amendment)
remains in full force and effect. The waiver set forth herein in no
manner creates a course of dealing or otherwise impairs the future
ability of the Agent or the Banks to declare an Event of Default
under the Loan Documents (other than on account of the matters
waived hereunder), or to otherwise enforce the terms of the Loan
Documents.
ARTICLE
II. REPRESENTATIONS AND WARRANTIES . Each of the Loan
Parties represents and warrants to the Agent and the Banks
that:
2.1
The execution, delivery,
and performance of this Amendment is within its powers, has been
duly authorized by all necessary corporate or company action, as
the case may be, and is not in contravention of any law, rule, or
regulation, or any judgment, decree, writ, injunction, order or
award of any arbitrator, court or governmental authority, or of the
terms of its Certificate of Incorporation or Articles of
Organization, as the case may be, or By-laws or Operating
Agreement, as the case may be, or of any contract or undertaking to
which it is a party or by which it or its properties is or may be
bound.
2.2
This Amendment is the
legal, valid, and binding obligation of each Loan Party,
enforceable against it in accordance with the respective terms
hereof.
2.3
After giving effect to
the amendments herein contained, except as set forth on Schedule
2.3 hereof, the representations and warranties contained in
Section 9 of the Credit Agreement are true on and as of the date
hereof with the same force and effect as if made on and as of the
date hereof.
2.4
No Event of Default or
Unmatured Event of Default exists or has occurred or is continuing
on the date hereof.
ARTICLE
III. CONDITIONS OF EFFECTIVENESS . This Amendment shall not
become effective until each of the following has been
satisfied:
3.1 This Amendment shall
have been executed by the Loan Parties, the Agent, and the
Banks.
3.2