Exhibit 10.5
EXECUTION COPY
October 31, 2003
Corrpro Companies, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxx, CEO
Re: Note Purchase Agreement, dated as of January 21, 1998, between Corrpro
Companies, Inc. and The Prudential Insurance Company of America.
Ladies and Gentlemen:
Reference is made to (i) that certain Note Purchase Agreement, dated as
of January 21, 1998 (as amended from time to time, the "Note Agreement"),
between Corrpro Companies, Inc., an Ohio corporation (the "Company"), and The
Prudential Insurance Company of America ("Prudential"), pursuant to which the
Company issued and Prudential now holds the Company's Third Amended and Restated
Senior Notes due January 15, 2008 in an aggregate principal amount of
$25,352,573.00 (the "Notes"), and (ii) that certain Forbearance Agreement, dated
July 31, 2003 (as amended, the "Forbearance Agreement" and together with the
Note Agreement, the "Agreements") between the Company and Prudential.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Agreements.
Consistent with the provisions of the Forbearance Agreement, the
Company, with the consent of the holders of the Notes, has entered into a letter
of intent governing a potential refinancing transaction. In connection with such
potential refinancing transaction, however, the Company is not in compliance
with the deadlines set forth in Section 1.2(v) of the Forbearance Agreement (the
"Milestone Defaults").
The Company has requested that Prudential agree to forbear from
exercising its rights and remedies under the Agreements arising as a result of
the occurrence and continuation of the Existing Events of Default and the
Milestone Defaults (collectively, the "Existing Defaults") and agree to certain
other changes to the Note Agreement, including to defer the date of certain
required payments of principal on the Notes, as more particularly set forth
herein. Subject to the terms and conditions hereof, and effective upon the
satisfaction of the conditions set forth herein, and provided that the Company
agrees to the modifications of the Agreements and the Notes set forth below,
Prudential is willing to agree to such request. Accordingly, and in accordance
with the provisions of paragraph 11C of the Note Agreement, the parties hereto
agree as follows:
AMENDMENTS TO FORBEARANCE AGREEMENT
-----------------------------------
1. INTRODUCTORY PARAGRAPH. The first paragraph of the Forbearance Agreement
shall be amended by adding the following language after the number "$28,
285,714": ", and as of the Effective Date (as hereinafter defined), Prudential
shall hold the Company's Third Amended and Restated Senior Notes due January 15,
2008 in an aggregate principal amount of $25,352,573".
2. SECTION 1.1. Prudential hereby agrees that the Forbearance Period (the
expiration date of which is currently October 31, 2003) set forth in Section 1.1
of the Forbearance Agreement shall be extended until January 31, 2004.
Corrpro Companies, Inc.
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October 31, 2003
3. SECTION 1.2(a). Section 1.2(a) of the Forbearance Agreement shall be amended
by adding the following sentence to the end thereof:
"With respect to the Company's pending refinancing
transaction, reports on such matter shall be provided not less frequently than
weekly."
4. SECTION 1.2(f). Section 1.2(f) of the Forbearance Agreement shall be amended
by deleting the word "or" from the third line thereof and inserting a comma in
its place and by adding the following language after the date "September 30,
2003" contained in the third line thereof: "or (iii) $3,125,000 for the three
consecutive months ending December 31, 2003".
5. SECTION 1.2(m). Section 1.2(m) of the Forbearance Agreement shall be amended
by adding the following sentence to the end thereof:
"All parties acknowledge that the Company has entered into an
agreement for the disposition of its Middle East Subsidiaries, and such
disposition shall be completed according to the terms and conditions
approved by the Required Holders."
6. SECTION 1.2(r). Section 1.2(r) of the Forbearance Agreement shall be amended
by deleting it in its entirety and replacing it with the following Section
1.2(r):
"The Company shall pay to Prudential an amendment fee in the
amount of $200,000, payable in installments as follows: $100,000 upon
execution of this letter agreement, and $100,000 upon the earlier of
December 31, 2003 or the date on which the Refinance Transaction
(defined in Section 1.2(v) below) is completed."
7. SECTION 1.2(t). Section 1.2(t) of the Forbearance Agreement shall be amended
by deleting the word "or" from the fifth line thereof and inserting a comma in
its place and by adding the following language after the date "September 30,
2003" contained in the fifth line thereof: "or (d) $1,300,000 during the nine
month period ending December 31, 2003".
8. SECTION 1.2(u). Section 1.2(u) of the Forbearance Agreement shall be amended
by deleting the date "October 31, 2003" contained in the second line thereof and
replacing such date with the date "January 31, 2004".
9. SECTION 1.2(v). Section 1.2(v) of the Forbearance Agreement shall be amended
by deleting in its entirety the language beginning with the words "Not later
than..." contained in the twenty-first line thereof through the end of such
paragraph, and replacing it with the following language:
"The Company, with the consent of the holders of the Notes,
has entered into a non-binding letter of intent (the "Letter of
Intent") describing a transaction that would include refinancing of the
Company and repayment in full of all indebtedness owed to the holders
of the Notes (the "Refinance Transaction"). The Company shall pursue
the Refinance Transaction under the following interim conditions: (i)
not later than November 10, 2003, the Company shall provide to the
holders of the Notes copies of one or more draft commitment letters
from one or more financing sources, equity providers or subordinated
debt providers (collectively, "Financing Sources") (the identity of
such Financing Sources and the terms of the commitment letters must be
acceptable to the Required Holders, as evidenced by the written consent
of the Required
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October 31, 2003
Holders) to fund the debt amounts contemplated in the Letter of Intent;
(ii) not later than December 5, 2003, the Company shall provide to the
holders of the Notes copies of the final and executed definitive
securities purchase agreement pertaining to the Refinance Transaction,
and the terms of such definitive agreement must be acceptable to the
Required Holders, as evidenced by the written consent of the Required
Holders (which consent shall be received by the Company prior to the
Company's execution of such definitive securities purchase agreement);
(iii) not later than December 5, 2003, the Company shall provide to the
holders of the Notes copies of one or more final and executed
commitment letters from one or more Financing Sources (the identity of
such Financing Sources and the terms of the commitment letters must be
acceptable to the Required Holders, as evidenced by the written consent
of the Required Holders (which consent shall be received by the Company
prior to the Company's execution of such commitment letters)) to fund
the Refinance Transaction; (iv) not later than December 8, 2003 or two
(2) business days after the date on which the Required Holders have
issued their consent to the definitive securities purchase agreement,
whichever is later, the Company shall submit to the Securities and
Exchange Commission a preliminary proxy statement and related materials
pertaining to the Refinance Transaction; and (v) such Refinance
Transaction shall be completed (to include repayment in full of all
indebtedness owed to the holders of the Notes) not later than January
31, 2004. Any proceeds received on account of any such sale transaction
shall be applied to the repayment of the Notes in accordance with the
terms of the Note Agreement. In each instance under this Section 1.2(v)
calling for the review and response on behalf of the Required Holders,
the holders of the Notes agree to respond in a diligent and timely
manner following receipt of all information required to be delivered to
them, and further agree that none of the consents required under this
Section 1.2(v) shall be conditioned on the payment of any fees not
otherwise required under the terms of this letter agreement."
10. SECTION 2.3. Section 2.3 of the Forbearance Agreement shall be amended by
deleting the date "March 31, 2004" contained in the fifth line thereof and
replacing such date with the date "June 30, 2004".
11. DEFINITION OF "NOTE DOCUMENTS". The definition of "Note Documents" contained
in Section 1.1 of the Forbearance Agreement is hereby amended to include the
Forbearance Agreement, as amended from time to time, including as amended
hereby.
12. GENERAL AMENDMENTS.
A. Each reference to "Existing Events of Default" contained in Sections 1
through 16 of the Forbearance Agreement shall be amended to be a reference to
"Existing Defaults".
B. Each reference to the date "October 31, 2003" contained in Sections 1.1, 1.5,
1.6(b) and 1.7 of the Forbearance Agreement shall be amended to be a reference
to "January 31, 2004".
AMENDMENTS TO NOTE AGREEMENT
----------------------------
1. PARAGRAPH 4A. Paragraph 4A of the Note Agreement is amended and restated in
its entirety to read as follows:
"4A. REQUIRED PREPAYMENTS. Until the Notes shall be prepaid in
full, the Company shall prepay, without Yield-Maintenance Amount, the
sum of (i) $9,863,539.44 on January 31, 2004, and (ii) $383,795.31 on
the 15th day of each month, commencing
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February 15, 2004 and continuing to and including December 15, 2007, in
each case together with accrued and unpaid interest thereon, and such
principal amount of the Notes shall become due on such prepayment
dates. Any unpaid principal balance of the Notes, together with any
accrued and unpaid interest thereon, shall become due on January 15,
2008, the maturity date of the Notes. Interest on the Notes at the rate
described in the Notes for each day on which the principal amount
thereunder is outstanding shall be paid monthly on the 15th day of
November, 2003, and continuing on the 15th day of each month thereafter
until the Notes have been paid in full."
2. PARAGRAPH 5A. Paragraph 5A of the Note Agreement is amended in its entirety
to read as follows:
"(v) within thirty (30) days after the end of each month, the
consolidated balance sheet of the Company and its Subsidiaries as of
the end of such month, and the related consolidated statements of
income and cash flows of the Company and its Subsidiaries for such
month and for the period commencing at the end of the previous fiscal
year and ending with the end of such month, in form and detail
reasonably acceptable to the holders of the Notes, setting forth in
each case in comparative form the corresponding figures for the
corresponding date or period of the preceding fiscal year and the
variances, if any, from the most recent budget and forecast delivered
to the holders of the Notes pursuant to that certain letter agreement
dated as of October 31, 2003 by and between the Company and Prudential,
together with a duly executed Officer's Certificate demonstrating
compliance by the Company with the provisions thereof;"
3. PARAGRAPH 6A. Paragraph 6A of the Note Agreement is amended in its entirety
to read as follows:
"6A. MINIMUM CONSOLIDATED NET WORTH. The Company will not
permit Consolidated Net Worth to be less than (i) $1,252,000, for the
period from October 31, 2003 to and including December 30, 2003, and
(ii) thereafter, $1,386,000."
4. DEFINITION OF "CONSOLIDATED NET WORTH". The definition of "Consolidated Net
Worth" in paragraph 10B of the Note Agreement is amended and restated in its
entirety as follows:
""CONSOLIDATED NET WORTH" shall mean as of any time of
determination thereof, total stockholders' equity of the Company and
its Subsidiaries on a consolidated basis determined in accordance with
GAAP. Notwithstanding the foregoing, during the "Forbearance Period"
(as defined in that certain letter agreement dated as of October 31,
2003 by and between the Company and Prudential) "Consolidated Net
Worth" shall be calculated exclusive of (a) gains or losses recognized
upon asset dispositions, and (b) any impairment to goodwill or other
intangible assets to the extent required by new accounting regulations
promulgated after the date of this Agreement."
The extension and amendments contained herein shall not become
effective unless and until Prudential shall have received (i) a copy of this
letter agreement executed by the Company and the Required Holders, (ii) a copy
of that certain Tenth Amendment to Credit Agreement (the "Bank Amendment"),
dated the date hereof, duly executed by the Bank Agent, the Banks, the Company
and CSI Coating Systems Inc., amending the Credit Agreement in a manner
satisfactory to Prudential, in form and substance satisfactory to Prudential,
and such amendment shall be in full force and effect, (iii) payment of
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the amendment fee required under Section 1.2(r) of the Forbearance Agreement (as
amended hereby), (iv) a consent of guarantors, dated the date hereof, duly
executed by each Guarantor, in the form attached hereto as Exhibit A, (v) a
favorable opinion of the Company's counsel in form and substance to Prudential
as to such matters as Prudential may reasonably request, (vi) a Secretary's
Certificate signed by the Secretary or Assistant Secretary and one other officer
of the Company certifying, among other things (a) as to the name, titles and
true signatures of the officers of the Company authorized to sign this letter
and the other documents to be delivered in connection with this letter, (b) that
attached thereto is a true, accurate and complete copy of the Articles of
Incorporation of the Company, certified by the Secretary of State of the State
of Ohio as of a recent date, (c) that attached thereto is a true, accurate and
complete copy of the By-laws of the Company which were duly adopted and are in
effect as of the Effective Date, (d) that attached thereto is a true, accurate
and complete copy of the resolutions of the Board of Directors of the Company
authorizing the execution, delivery and performance of this letter and the other
documents to be delivered in connection with this letter, and of all other
documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this letter, and (e) that this letter
agreement and the other documents executed and delivered to Prudential by the
Company are in the form approved by its Board of Directors in the resolutions
referred to in clause (d), above, and (vii) a written confirmation, in form and
substance satisfactory to Prudential, signed by the Bank Agent and the Banks of
the continued effectiveness of the Intercreditor and Collateral Agency
Agreement, dated as of June 9, 2000, as amended by Amendment No. 1 thereto dated
June 29, 2001, notwithstanding this letter agreement and the Bank Amendment.
Additionally, this letter agreement shall not be effective until (x) all
corporate and other proceedings in connection with the transactions contemplated
by this letter agreement shall be satisfactory to Prudential and its counsel,
and Prudential shall have received all such counterpart originals or certified
or other copies of such documents as they may reasonably request, (y) Prudential
has received payment of all costs and expenses of Prudential (including
reasonable fees and disbursements of special counsel to Prudential) in
connection with this letter and the transactions contemplated hereby and (z) the
Company shall have agreed to pay to the Bank Agent and the Banks an amendment
fee in connection with the Bank Amendment in an amount not to exceed $200,000 in
its entirety.
The Company acknowledges and agrees that the extension and amendments
contained herein are limited to the specific one-time agreements described
above, that no course of dealing is established hereby, and that there shall be
no obligation on the part of Prudential to further extend the deadline set forth
above or to further amend the Agreements. Such limited extension and such
amendments (a) shall not modify or waive any other term, covenant or agreement
of the Note Documents except to the extent described herein, and (b) shall not
be deemed to have prejudiced any present or future right or rights which
Prudential now has or may have under the Note Documents.
The Company represents and warrants to Prudential that, after giving effect
to the agreements herein contained, (a) the representations and warranties
contained in Paragraph 8 of the Note Agreement and Section 4 of the Forbearance
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 (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they were true and correct as of such earlier date), and (b) other than the
Existing Defaults, no Event of Default or Default exists or has occurred and is
continuing on the date hereof.
The Company agrees that the Forbearance Agreement, the Note Agreement (as
amended) and all other Note Documents are ratified, confirmed and shall remain
in full force and effect and that it has no set off, counterclaim, defense or
other claim or dispute with respect to any of the foregoing.
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This letter may be executed in any number of counterparts, and facsimile
signatures shall be treated as original signatures for all purposes.
Very truly yours,
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
By: /s/ Xxxx Xxxxx
----------------------------------------
ACCEPTED, ACKNOWLEDGED AND
AGREED TO OCTOBER 31, 2003
CORRPRO COMPANIES, INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Title: Senior Vice President
-------------------------------
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EXECUTION COPY
EXHIBIT A
CONSENT OF GUARANTORS
Each of the undersigned is a guarantor under a subsidiary guaranty (as
amended, the "GUARANTY"), dated as of June 9, 2000, made by each guarantor in
favor of each holder of any Notes (the "NOTEHOLDERS"), and as such hereby
consents to that certain letter dated October 31, 2003, by and between Corrpro
Companies, Inc. and The Prudential Insurance Company of America (the
"MODIFICATION") and the amendments, forbearance and agreements contained
therein, and agrees to all agreements of the Guarantors set forth therein, and
confirms and agrees that, notwithstanding the Modification and the effectiveness
of the amendments, forbearance and agreements contained therein, the Guaranty
is, and shall continue to be, in full force and effect and is hereby confirmed
and ratified in all respects. Nothing herein is intended or shall be deemed to
limit any Noteholder's rights under the Guaranty to take actions without the
consent of the undersigned.
Dated as of October 31, 2003
GOOD-ALL ELECTRIC, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Title: Vice President
---------------------------------
BASS SOFTWARE, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Title: Vice President
---------------------------------
OCEAN CITY RESEARCH CORP.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Title: Vice President
---------------------------------
CCFC, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Title: Vice President
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