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FORBEARANCE AGREEMENT
This FORBEARANCE AGREEMENT (the "Agreement") dated as of October 29,
1999 by and among FLEET NATIONAL BANK F/K/A FLEET NATIONAL BANK OF CONNECTICUT
F/K/A SHAWMUT BANK CONNECTICUT, N.A., a national banking association with a
place of business at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("LENDER"),
EDAC TECHNOLOGIES CORPORATION, a Wisconsin corporation with a principal place of
business at 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 ("BORROWER"),
APEX MACHINE TOOL COMPANY, INC., a Connecticut corporation with a mailing
address c/o Borrower at 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000
("APEX") and GROS-ITE INDUSTRIES, INC., a Connecticut corporation with a mailing
address c/o Borrower at 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000
("GROS-ITE" and collectively with Apex, "GUARANTOR").
RECITALS
On October 3, 1985, Lender and Borrower entered into a certain
Revolving Loan and Security Agreement which has been amended and restated in its
entirety by a certain Fifth Amended and Restated Revolving Loan, Term Loan,
Equipment Loan and Security Agreement dated February 28, 1995, as amended by a
certain Sixth Amendment to Revolving Loan, Term Loan, Equipment Loan and
Security Agreement dated July 31, 1995, as further amended by a certain Seventh
Amendment to Revolving Loan, Term Loan, Equipment Loan and Security Agreement
and Reaffirmation of Guaranties dated as of January 26, 1996, as further amended
by a certain Eighth Amendment to Revolving Loan, Term Loan, Equipment Loan and
Security Agreement and Reaffirmation of Guaranties dated as of April 10, 1996,
as further amended by a certain Ninth Amendment to Revolving Loan, Term Loan,
Equipment Loan, Security Agreement, Modification of Notes and Reaffirmation of
Guaranties dated May 27, 1997 between Borrower and Lender, as further amended by
a certain Tenth Amendment to Revolving Loan, Term Loan, Equipment Loan and
Security Agreement and Reaffirmation of Guaranties dated May 22, 1998, as
further amended by a certain Eleventh Amendment to Loan and Security Agreement,
Modification of Notes and Reaffirmation of Guaranties dated as of June 30, 1998
and as further amended by a certain Twelfth Amendment to Loans and Security
Agreement, Modification of Notes and Reaffirmation of Guaranties dated as of
November 25, 1998 (as amended and in effect from time to time, the "LOAN
AGREEMENT").
Pursuant to the Loan Agreement, the Lender has made: (i) a
$13,000,000.00 revolving loan (the "REVOLVING LOAN") as evidenced by a certain
Second Amended and Restated Revolving Promissory Note dated as of June 30, 1998
(the "REVOLVING NOTE"), (ii) a $14,000,000.00 term loan (the "ACQUISITION TERM
LOAN") as evidenced by a certain Term Promissory Note dated June 30, 1998 (the
"ACQUISITION TERM NOTE"), (iii) a $541,153.34 term loan (the "CONSOLIDATED
EQUIPMENT LOAN") as evidenced by a certain Amended and Restated Promissory Note
dated March 27, 1997 (the "CONSOLIDATED EQUIPMENT NOTE"), (iv) a $4,000,000.00
term loan (the "TERM LOAN") as evidenced by a certain Term Promissory Note dated
March 22, 1993 (the "TERM NOTE"), (v) a
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$1,000,000.00 construction to permanent loan (the "CONSTRUCTION LOAN") as
evidenced by a certain Construction to Permanent Loan Promissory Note dated July
31, 1995 (the "CONSTRUCTION NOTE"), (vi) a $3,000,000.00 equipment loan (the
"THIRD EQUIPMENT LOAN") as evidenced by a certain Equipment Promissory Note III
dated as of March 27, 1997 (the "THIRD EQUIPMENT NOTE") and (vii) a $3,000,000
equipment loan (the "FOURTH EQUIPMENT LOAN") as evidenced by a certain Equipment
Promissory Note IV dated as of May 22, 1998 (the "FOURTH EQUIPMENT NOTE" and
collectively with the Revolving Note, Acquisition Term Note, Consolidation
Equipment Note, Term Note, Construction Note and Third Equipment Note, the
"NOTES").
Each Guarantor has guaranteed the obligations of Borrower under the
Loan Agreement and Notes, pursuant to their respective Guaranties (collectively,
"GUARANTY").
The Borrower acknowledges that it is unconditionally indebted to Lender
with respect to its respective debts more particularly described on Exhibit A
attached hereto (the "INDEBTEDNESS"), plus interest accrued and accruing thereon
and costs and expenses of collection, including without limitation, reasonable
attorneys' fees. Additionally, the Borrower acknowledges that it has no defense,
offset or counterclaim to its obligations in respect of the Indebtedness and
further that it has no other claim whatsoever against Lender (whether arising in
contract, tort or otherwise) with respect to, or arising out of, the
Indebtedness. The outstanding principal amount of the Indebtedness as of
September 30, 1999 is $27,008,204.17.
Hereinafter, this Agreement, the Loan Agreement, the Notes, the
Guaranty and all other documents evidencing, relating or securing the
Indebtedness (as defined below) (collectively, the "LOAN DOCUMENTS") all
instruments, documents and agreements executed by the Borrower, Guarantor or any
other party in connection herewith, and all amendments and modifications to any
of the foregoing, including without limitation those contained in paragraph C
hereof, are sometimes collectively referred to hereinafter as the "LOAN AND
FORBEARANCE DOCUMENTS". Capitalized terms used in this Agreement but not
otherwise defined shall have the meanings given to such terms in the Loan
Agreement.
The Borrower and Guarantor acknowledges and affirms that (a) Borrower
is in default in the performance of its obligations under the Loan Agreement,
the Notes and the Loan Documents by virtue of Borrower's past and continuing
failure to comply with the financial covenants set forth in Sections 10 and 13
of Exhibit A of the Loan Agreement, and (b) as a result of the aforesaid
defaults, Lender has the full and unrestricted right to declare all of the
Indebtedness to be immediately due and payable and to commence proceedings for
its collection.
The Borrower and Guarantor have requested, and Lender has agreed,
subject to the terms and conditions set forth herein: (a) to forbear from
acceleration and collection of the Indebtedness until December 31, 1999 (the
"FORBEARANCE TERMINATION DATE") (the period from the date of this Agreement
through and including the Forbearance Termination Date is referred to herein as
the "FORBEARANCE PERIOD"); and (b) to make certain other changes to the terms
and conditions of the Loan Agreement. Lender has agreed to grant the requested
accommodations subject to the express agreements and conditions set forth below
and provided further that: (i) there is no further material
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adverse change in the business or financial condition of the Borrower or
Guarantor after the date hereof; (ii) there is no material adverse change in the
value, extent or condition of any of the collateral or other property granted to
Lender to secure any or all of the Indebtedness after the date hereof; (iii) the
Borrower and Guarantor shall perform and comply with, as and when required, time
being of the essence in all respects, all of the respective agreements,
covenants and obligations set forth in the Loan and Forbearance Documents; (iv)
except for the defaults described above, no default or event of default
(howsoever defined) under any of the other Loan and Forbearance Documents, shall
occur or exist under any of the Loan and Forbearance Documents, it being further
agreed and understood that from and after the date hereof all cure and grace
periods and/or requirements for prior notice or demand, if any, which are
currently allowed or must be satisfied prior to an event being deemed a default
or event of default (howsoever defined) under any of the Loan and Forbearance
Documents are hereby waived by the Borrower and Guarantor and are of no further
force and effect; (v) no other party takes any action against the Borrower and
Guarantor or against any of the collateral or other property granted to Lender
to secure any or all of the Indebtedness which in Lender's sole judgment will
have a material adverse impact upon Lender's right or ability to repossess,
attach or execute upon any of such collateral or other property; (vi) the
Borrower and Guarantor shall not make any assignment for the benefit of
creditors or similar action or be the subject, voluntarily or involuntarily, of
any bankruptcy, insolvency, reorganization or other similar proceeding; (vii)
the Borrower and Guarantor shall not have misrepresented any material fact to,
or committed any fraud upon, Lender; (viii) all information and documents
delivered by or on behalf of the Borrower and Guarantor to Lender shall be true
and complete in all material respects; and (ix) Borrower and Guarantor shall
have paid all outstanding legal fees and expenses of its counsel incurred in
connection with the Loan Documents ((i), (ii), (iii), (iv), (v), (vi), (vii),
(viii), and (ix) being hereafter referred to individually as a "FORBEARANCE
CONDITION" and collectively as the "FORBEARANCE CONDITIONS").
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree, represent and warrant as follows:
A. If Borrower meets all of the terms and conditions of this
Agreement and the Loan Documents as revised, and no Event of Default shall have
occurred, Lender shall consider entering into a second Forbearance Agreement,
upon terms and conditions satisfactory to Lender in its sole discretion, with
Borrower.
B. The Borrower and each Guarantor (i) represents and warrants to
Lender that: (1) it has the requisite corporate power to enter into this
Agreement and the transactions contemplated herein, and has taken all necessary
corporate action to authorize this Agreement and the transactions contemplated
herein; and (2) the Loan and Forbearance Documents to which it is a party
constitute the legal, valid and binding obligations of the Borrower, enforceable
against it in accordance with their respective terms and (ii) confirms that all
of its representations and warranties contained in the Loan Agreement are true
and correct as of the date hereof, except to the extent that any of the same
relate to a prior specific date or event.
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C. So long as the Forbearance Conditions are and continue to be
satisfied, Lender agrees (1) to forbear from acceleration and collection of the
Indebtedness during the Forbearance Period, and (2) subject to the terms and
conditions set forth in the Loan Agreement and to the additional conditions set
forth in this Agreement, to continue to make advances under the Revolving Credit
Loan available for borrowing by the Borrower during the Forbearance Period,
EXCEPT that notwithstanding anything to the contrary contained in the Loan
Agreement or any of the other Loan and Forbearance Documents, the Borrower and
Guarantor acknowledge and agree that commencing on the date hereof and
continuing until Lender otherwise agrees in writing: (i) upon (A) the failure of
any of the Forbearance Conditions to be satisfied or to continue to be
satisfied, or (B) the expiration of the Forbearance Period, all Indebtedness and
other sums due from the Borrower and Guarantor to Lender under the Loan and
Forbearance Documents shall automatically and immediately be due and payable
without further notice or demand and Lender shall have the right to exercise,
without further notice or demand, any and all rights and remedies available to
it under the Loan and Forbearance Documents and at law or equity; and (ii)
Lender shall have no obligation to enter into or consider any restructuring of,
or any other accommodation with respect to any of the Indebtedness upon the
failure of any Forbearance Condition to be satisfied or upon the expiration of
the Forbearance Period.
D. The Borrower shall pay monthly in arrears additional interest on
all of the outstanding Indebtedness on the first day of each month to Lender at
a per annum rate equal to one hundred twenty-five (125) basis points. Such
interest shall be charged separately by Lender to Borrower.
E. The Loan Agreement shall be deemed to be amended as follows:
(i) The definition of "Cost of Funds" in Section 1.20 is hereby
deleted and replaced with the following:
"Section 1.20. "COST OF FUNDS" means the per annum rate of
interest which Lender is required to pay, or is offering to
pay, for wholesale liabilities, adjusted for reserve
requirements and such other requirements as may be imposed
by federal, state or local government and regulatory
agencies, as determined by Fleet National Bank's Treasury
Group."
(ii) The definition of "LIBOR Base Rate" in Section 1.29 is
hereby deleted and replaced with the following:
"Section 1.29 "LIBOR BASE RATE" shall mean, as applicable to
any LIBOR Advance, the rate per annum rounded upward, if
necessary, to the nearest 1/32 of one percent) as determined
on the basis of the offered rates for deposits in U.S.
dollars, for a period of time comparable to such LIBOR
Advance which appears on the Telerate page 3750 as of 11:00
a.m. London time on the day that is two London Banking Days
preceding the first of such LIBOR Advance; provided,
however, if the rate described above does not appear on the
Telerate System on any applicable interest determination
date,
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the LIBOR rate shall be the rate (rounded upwards as
described above, if necessary) for deposits in dollars for a
period substantially equal to the interest period on the
Reuters Page "LIBO" (or such other page as may replace the
LIBO Page on that service for the purpose of displaying such
rates), as of 11:00 a.m. (London Time), on the day that is
two (2) London Banking Days prior to the beg inning of such
interest period. "Banking Day" shall mean, in respect of any
city, any date on which commercial banks are open for
business in that city.
If both the Telerate and Reuters system are
unavailable, then the rate for that date will be determined
on the basis of the offered rates for deposits in U.S.
dollars for a period of time comparable to such LIBOR
Advance which are offered by four major banks in the London
interbank market at approximately 11:00 a.m. London time, on
the day that is two (2) London Banking Days preceding the
first day of such LIBOR Advance as selected by the
calculation agent. The principal London office of each of
the four major London banks will be requested to provide a
quotation of its U.S. dollar deposit offered rate. If at
least two such quotations are provided, the rate for that
date will be the arithmetic mean of the quotations. If fewer
than two quotations are provided as requested, the rate for
that date will be determined on the basis of the rates
quoted for loans in U.S. dollars to leading European banks
for a period of time comparable to such LIBOR Advance
offered by major banks in New York City at approximately
11:00 a.m. New York City time, on the day that is two London
Banking Days preceding the first day of such LIBOR Advance.
In the event that Bank is unable to obtain any such
quotation as provided above, it will be deemed that LIBOR
pursuant to a LIBOR Advance cannot be determined.
In the event that the Board of Governors of the Federal
Reserve System shall impose a Reserve Percentage with
respect to LIBOR deposits to Bank then for any period during
which such Reserve Percentage shall apply, LIBOR shall be
equal to the amount determined above divided by an amount
equal to 1 minus the Reserve Percentage."
(iii) The following is hereby inserted after Section 1.40 of the
Loan Agreement:
"Section 1.41 "THE MODIFIED FOLLOWING BUSINESS DAY CONVENTION" shall
mean the convention for adjusting any relevant date if it would
otherwise fall on a day that is not a Business Day. The following
terms, when used in conjunction with the term "Modified Following
Business Day Convention", and a date, shall mean that an adjustment
will be made if that date would otherwise fall on a day that is not a
Business Day so that the date will be the first following day that is a
Business Date. For purposes of the Modified Business Day Convention,
"BUSINESS DAY" means, in respect of any date that is specified in this
agreement to be subject to adjustment in accordance with applicable
Modified Business Day
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Convention, a day on which commercial banks settle payments in New York
or London if the payment obligation is calculated by reference to any
(i) LIBOR Bate Rate, or (ii) New York, if the payment obligation is
calculated by reference to any Prime Rate or Cost of Funds Rate."
(iv) Amendment to Section 2.1 of the Loan Agreement. The Loan
Agreement is hereby amended by deleting Section 2.1 in its entirety and
substituting the following in lieu thereof:
2.1 Revolving Loan. The Lender may loan to the Borrower, at
is discretion, and the Borrower may borrow from the Lender,
from time to time (each an "ADVANCE" and collectively, the
"REVOLVING LOAN"), up to that amount (hereinafter referred
to as the "BORROWING BASE") which is the lesser of:
a. The sum of:
(1) EIGHTY PERCENT (80%) of the Borrower's Eligible
Receivables;
(2) SIXTY PERCENT (60%) of the Borrower's Eligible
Inventory, but in any event not to exceed FIVE
MILLION FIVE HUNDRED THOUSAND DOLLARS
($5,500,000.00);
which sum shall be reduced by the aggregate amount
committed under any letter or letters of credit issued
by the Lender on behalf of the Borrower; OR
b. TEN MILLION DOLLARS ($10,000,000.00), reduced by the
aggregate amount committed under any letter or letters
of credit issued by the Lender on behalf of the
Borrower.
Nothing herein shall be construed to require the Lender
to lend up to the Borrowing Base, and nothing shall
prohibit the Lender from lending in excess of the
Borrowing Base, all loans to be at the discretion of
the Lender.
The Revolving Loan shall be evidenced by the Amended
and Restated Revolving Promissory Note annexed hereto
and made a part hereof as EXHIBIT "B".
(v) The language "three percent (3%) in Section 2.16, Default
Interest is hereby deleted and replaced with "four percent (4%)".
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(vi) Section 2.22 of the Loan Agreement is hereby deleted and
replaced with the following:
Section 2.22 Fees. The Borrower shall pay Lender the
following fees: (i) $40,000.00 waiver fee, (ii) a $40,000
servicing charge, (iii) a $30,000 restructuring fee and
(iv) a $10,000 success fee. All fees shall be due and
payable on October 29, 1999 except for the $10,000.00
success fee which shall be payable on the earlier of (a)
June 30, 2000 or (b) on the date the Loans are refinanced
either in whole or in part with borrowed money.
(vii) The following are hereby inserted after Section 2.22 of the
Loan Agreement:
"Section 2.23 Cross-Termination: In the event that the
Revolving Loan terminates while any other Loans and/or the
Construction Loan are outstanding, all of the Loans and the
Construction Loan shall simultaneously terminate and
Borrower shall simultaneously prepay all of the Loans and
the Construction Loan in full together with all accrued but
unpaid interest thereon to the date of such prepayment
together with any applicable prepayment or make-whole
premium."
Section 2.24 Fixed Rate Penalty: If, at any time (i) the
interest rate of the loan is a fixed rate, and (ii) Lender
in its sole discretion should determine that current market
conditions can accommodate a prepayment request, Borrower
shall have the right at any time and from time to time to
prepay any of the Loans in whole (but not in part), and
Borrower shall pay to Lender a yield maintenance fee in an
amount computed as follows: The current rate for United
States Treasury securities (bills on a discounted basis
shall be converted to a bond equivalent) with a maturity
date closest to the maturity date of the Interest Period
chosen pursuant to the Fixed Rate Election as to which the
prepayment is made, shall be subtracted from the "cost of
funds" component of the fixed rate in effect at the time of
prepayment. If the result is zero or a negative number,
there shall be no yield maintenance fee. If the result is a
positive number, then the resulting percentage shall be
multiplied by the amount of the principal balance being
prepaid. The resulting amount shall be divided by 360 and
multiplied by the number of days remaining in the Interest
Rate chosen pursuant to the Fixed Rate Election as to which
the prepayment is made. Said amount shall be reduced to
present value calculated by using the number of days
remaining in the designated Interest Period and using the
above-referenced United States Treasury security rate and
the number of days remaining in the Interest Rate chosen
pursuant to the fixed rate election as to which the
prepayment is made. The resulting amount shall be the yield
maintenance fee due to Lender upon prepayment of the fixed
rate loan. Each reference in this paragraph to "Fixed Rate
Election"
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shall mean the election by Borrower pursuant to paragraph
2.14 of this Agreement.
If by reason of an event of default Lender elects to
declare any of the Loans to be immediately due and payable,
then any yield maintenance fee with respect to the Loans
shall become due and payable in the same manner as though
Borrower had exercised such right of prepayment."
Section 2.25 Lost/Destroyed Documents: Upon receipt of an
affidavit of an officer of Lender as to the loss, theft,
destruction or mutilation of any Note or any other security
document which is not of public record, and, in the case of
any such loss, theft, destruction or mutilation, upon
surrender and cancellation of such Note or other security
document, Borrower will issue, in lieu thereof, a
replacement Note or other security document in the same
principal amount thereof and otherwise of like tenor.
Section 2.26 Participation: Lender shall have unrestricted
right at any time and from time to time, and without the
consent of or notice to Borrower or Guarantor, to grant to
one or more banks or other financial institutions (each, a
"PARTICIPANT") participating interests in Lender's
obligation to lend hereunder and/or any or all of the loans
held by Lender hereunder. In the event of any such grant by
Lender of a participating interest to a Participant,
whether or not upon notice to Borrower, Lender shall remain
responsible for the performance of its obligations
hereunder and Borrower shall continue to deal solely and
directly with Lender in connection with Lender's rights and
obligations hereunder.
Section 2.27 Late Fee: Notwithstanding any provision in any
of the Notes, if the entire amount of any required payment
of principal and/or interest under any of the Notes is not
paid in full within ten (10) days after the same is due,
Borrower shall pay to the Lender a late fee equal to five
percent (5%) of the required payment."
(viii) Section 4.1.i of the Loan Agreement is deleted and replaced
with the following:
The Borrower at all times hereafter shall: maintain a
standard and modern system of accounting in accordance with
generally accepted accounting principles and ledger and
account cards which contain such information as may be
requested by the Lender; permit the Lender or any of its
employees, officers or agents, upon demand during the
Borrower's usual business hours, to have access to and to
examine all of the Borrower's books and records, and in
connection therewith, permit the Lender or any such
employees, officers or agents to copy and make abstracts
therefrom; deliver to the Lender (1) within
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ninety (90) days after the end of each of the Borrower's
fiscal years, a reasonably detailed balance sheet and a
reasonably detailed profit and loss statement covering the
Borrower's operations for such fiscal year audited and
certified by an independent certified public accountant
satisfactory to the Lender, along with a management letter
from such accountant; (2) within twenty-five (25) days
after the end of each calendar month and forty days (40)
days of each calendar quarter, a reasonably detailed
balance sheet and a reasonably detailed profit and loss
statement covering the Borrower's operations for such month
or quarter, as applicable, which financial information may
be internally prepared, and setting forth calculations in
reasonable detail evidencing such compliance along with a
certificate executed and certified as being true, correct
and complete, by the president or chief financial officer
of the Borrower; (3) within thirty (30) days after the end
of each month, a backlog report in form and substance
satisfactory to Lender; (4) within (a) twenty (20) days
after the end of each of the months of January, February,
April, May, July, August, October and November, and (b)
forty (40) days after the end of each of the months of
March, June, September and December, for each of such
months (i) a detailed aging of Receivables, (ii) a detailed
accounts payable aging, and (iii) inventory reports, each
in form and substance satisfactory to Lender; (5) within
three days of each calendar week end, a borrowing base
certificate in form and substance satisfactory to Lender,
and (6) deliver to the Lender any such other information
requested by Lender. Each financial report provided under
subparagraphs (1) and (2) above shall be accompanied by a
certificate signed by an authorized officer of the Borrower
to the effect that such information is complete, correct
and thoroughly presents the financial condition of the
Borrower and that there exists on the date of delivery of
said certificate to the Lender no condition or event which
constitutes an Event of Default and that no events have
occurred which, after notice by the Lender or lapse of time
or both, would constitute an Event of Default. Any
information provided to Lender shall be complete, correct
and accurate.
(ix) Section 4 of Exhibit "A" of the Loan Agreement is hereby
deleted and replaced with the following:
Lender's Audit Fee. Lender may conduct audits from time to
time of the Borrower in its sole discretion. Borrower
agrees to pay to the Lender all fees, cost and expenses
(including Lender's internal cost and expenses) incurred by
Lender in connection with such audits. So long as no Event
of Default has occurred under this Loan Agreement, the
Lender shall not conduct more than four (4) audits per
calendar year.
(x) Section 13 of Exhibit "A" of the Loan Agreement is hereby
deleted and replaced with the following:
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13. Intentionally Omitted.
(xi) The following is hereby inserted into Exhibit A of the Loan
Agreement:
21. Operating Profit. Maintain an operating profit
(excluding (a) extraordinary expenses incurred in
connection with the severance of Borrower's former Chief
Executive Officer and expenses incurred in connection with
the recruitment of senior management, provided such
exclusions shall not exceed $1,100,000.00 in the aggregate
and (b) the impairment loss relating to four (4) Okuma
turning machines) for each of the periods commencing July
3, 1999 through the end of each monthly periods as set
forth below of not less than the following:
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Minimum
Periods Ending Operating Profit
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October 2, 1999 $200,000
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October 30, 1999 $450,000
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November 27, 1999 $725,000
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January 1, 2000 $725,000
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22. Minimum Availability. Borrower shall maintain a minimum
difference between the Borrowing Base and outstanding
principal balance of the Revolving Loan of (a) for the
weeks ending October 2, 1999, October 30, 1999, November
27, 1999 and January 1, 2001, $1,250,000.00 and (b) at all
other times, $500,000.
23. Unfunded Capital Expenditures. Borrower shall not make
or otherwise incur Unfunded Capital Expenditures in excess
of $375,000 for the period commencing October 2, 1999 and
ending January 1, 2000. For purposes of this section,
"Unfunded Capital Expenditures" means amounts paid or
indebtedness incurred by Borrower or any of its
subsidiaries in connection with the purchase or lease by
the Borrower or any of its subsidiaries of Capital Assets
that would be required to be capitalized and shown on
Borrower's or its subsidiaries balance sheet in accordance
with GAAP and which amounts paid or indebtedness incurred
is not funded by any of the Loans (excluding the Revolving
Loan). For purposes of this section, "Capital Assets" means
fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as
patents, copyrights,
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trademarks, franchises and good will); provided that
Capital Assets shall not include any item customarily
charged directly to expense or depreciated over a useful
life of twelve (12) months or less in accordance with GAAP.
F. Exhibit B to the Loan Agreement is hereby deleted and replaced
with Exhibit B attached hereto and made a part hereof.
G. All Exhibits to the Loan Agreement, the Notes and the other Loan
and Forbearance Documents are hereby amended in such a manner as to be
consistent with all amendments made hereby and contained herein.
H. As a further inducement to Lender to enter into this Agreement
and to grant the accommodations hereunder, Borrower agrees to pay Lender an
additional $77,500 success fee, which shall be payable upon the earlier of (a)
June 30, 2000 or (b) demand by Lender. Borrower acknowledges that the success
fee is due and payable, but that Lender, at Borrower's request, has not
requested immediate payment.
I. To induce the Lender to enter into this Amendment, each Guarantor
hereby (a) consents to this Amendment and (b) affirms and ratifies its Guaranty
and confirms that (i) each Guarantor does irrevocably and unconditionally
guarantee to the Lender the payment and performance from the Borrower of the
Obligations (as defined in each Guaranty) from the Borrower to the Lender, upon
the terms and conditions set forth in the respective Guaranty, (ii) the term
Obligations includes, without limitation, this Forbearance Agreement, the Term
Loan, the Construction Loan, the Consolidated Equipment Loan, the Third
Equipment Loan, the Fourth Equipment Loan, the Revolving Loan and the
Acquisition Term Loan, and (iii) each Guaranty remains in full force and effect.
J. As a further inducement to Lender to enter into this Agreement
and to grant the accommodations contained herein, effective on the date hereof,
the Borrower does hereby release, acquit and forever discharge Lender, its
respective representatives, parent, subsidiaries, affiliates, officers,
directors, agents, employees, servants, attorneys and representatives, as well
as the respective personal representatives, successors and assigns of any and
all of them (collectively, the "RELEASED LENDER PARTIES"), from and against any
and all claims (including without limitation, any so-called "lender liability"
claims or defenses), demands, debts, actions, causes of action, suits,
contracts, agreements, obligations, accounts, defenses, offsets against any of
the Indebtedness, and liabilities of any kind or character whatsoever, known or
unknown, suspected or unsuspected, in contract or in tort, at law or in equity,
including without implied limitation, such claims and defenses as fraud,
mistake, failure of consideration and duress, which the Borrower and/or anyone
claiming by or through any of them ever had, now has, or might hereafter have
against any of the Released Lender Parties for or by reason of any matter, cause
or thing whatsoever occurring from the beginning of time through and including
the date hereof which relates to, in whole or in part, directly or indirectly:
(a) any of the Indebtedness, (b) any of the Loan and Forbearance Documents; (c)
any of the collateral or other property granted to Lender as security for any of
the Indebtedness; or (4) the administration of any of the Indebtedness or
conduct of Lender or of any of the other Released
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Lender Parties. In addition, the Borrower agrees not to commence, join in,
assist, prosecute or participate in any suit or other proceeding against any of
the Released Lender Parties relating directly or indirectly to any of the
foregoing matters (including without limitation the Loan and Forbearance
Documents) or otherwise contrary to the provisions set forth above.
K. The Borrower acknowledges and agrees that a default under any of
the Loan and Forbearance Documents shall constitute a default under the other
Loan and Forbearance Documents.
L. LENDER AND THE BORROWER EXPRESSLY WAIVE TRIAL BY JURY IN ANY COURT
AND IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH
OR IN ANY WAY RELATED TO THE FINANCING TRANSACTIONS OF WHICH THE LOAN AND
FORBEARANCE DOCUMENTS ARE A PART AND/OR THE ENFORCEMENT OF ANY OF LENDER'S
RIGHTS AND REMEDIES THEREUNDER, INCLUDING WITHOUT LIMITATION, TORT CLAIMS.
M. THE BORROWER ACKNOWLEDGES THAT THE TRANSACTIONS EVIDENCED BY THE
LOAN AND FORBEARANCE DOCUMENTS AND AS CONTEMPLATED BY THIS AGREEMENT ARE
COMMERCIAL TRANSACTIONS AND WAIVES ITS RIGHTS TO NOTICE AND HEARING UNDER
CHAPTER 903A OF THE CONNECTICUT GENERAL STATUES, OR AS OTHERWISE ALLOWED BY THE
LAW OF ANY STATE OR FEDERAL LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH
LENDER MAY DESIRE TO USE, AND FURTHER WAIVES ITS RIGHT TO REQUEST THAT LENDER
POST A BOND, WITH OR WITHOUT SURETY, TO PROTECT THE BORROWER AGAINST DAMAGES
THAT MAY BE CAUSED BY ANY PREJUDGMENT REMEDY SOUGHT OR OBTAINED BY LENDER BY
VIRTUE OF ANY DEFAULT OR PROVISION OF THIS AGREEMENT OR ANY OF THE OTHER LOAN
AND FORBEARANCE DOCUMENTS.
N. THE BORROWER ACKNOWLEDGES THAT IT MAKES THE WAIVERS SET FORTH
HEREIN KNOWINGLY, VOLUNTARILY AND WITHOUT DURESS AND ONLY AFTER EXTENSIVE
CONSIDERATION OF THE RAMIFICATIONS OF THOSE WAIVERS WITH ITS ATTORNEYS. THE
BORROWER FURTHER ACKNOWLEDGES THAT LENDER HAS NOT AGREED WITH OR REPRESENTED TO
THE BORROWER OR ANY OTHER PARTY HERETO THAT THE PROVISIONS HEREIN WILL NOT BE
FULLY ENFORCED IN ALL INSTANCES.
O. The Borrower agrees to pay all costs and expenses incurred by
Lender, including without limitation, attorneys' fees, in connection with the
preparation, negotiation, administration and enforcement of this Agreement and
the transactions contemplated herein. Nothing herein shall be construed to limit
the Borrower' obligation to pay fees, costs and expenses pursuant to the terms
of the Loan and Forbearance Documents.
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P. The Borrower shall from time to time execute and deliver such
additional documents and take such additional actions and shall provide such
additional information as Lender may reasonably require to carry out the terms
and conditions of this Agreement.
Q. This Agreement and the other Loan and Forbearance Documents
constitute the entire understanding and agreement among the parties hereto and
supersede any prior or contemporaneous written or oral understanding with
respect to the subject matter hereof. Except as expressly modified herein, the
Loan and Forbearance Documents remain unmodified and in full force and effect in
accordance with their terms.
R. This Agreement and the other Loan and Forbearance Documents, and
all transactions, assignments and transfers hereunder and thereunder, and all
the rights of the parties, shall be governed as to validity, construction,
enforcement and in all other respects by the laws of the State of Connecticut
(but not its conflicts of law provisions).
S. This Agreement may be executed in any number of counterparts, each
of which shall constitute an original and all of which, when taken together,
shall constitute one instrument.
T. Nothing therein shall be construed to be a waiver of any
requirements of the Loan Agreement or the other Loan and Forbearance Documents.
Guarantor hereby ratifies and confirms his obligations under his Guaranty with
respect to the Loans, the Loan Agreement and the other Loan and Forbearance
Documents as amended hereby.
[The remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
LENDER:
FLEET NATIONAL BANK
By: /s/ Edacr Ezerins
------------------------------
Xxxxx Xxxxxxx
Its Vice President
(Duly Authorized)
BORROWER:
EDAC TECHNOLOGIES CORPORATION
By /s/ Xxxxxx X.Xxxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxxx
Its Vice President
(Duly Authorized)
GUARANTORS:
GROS-ITE INDUSTRIES, INC.
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxxx
Its V.P.
APEX MACHINE TOOL COMPANY, INC.
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxxx
Its V.P.
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EXHIBIT A
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NAME OF LOAN OUTSTANDING
BALANCE AS OF
9/30/99
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Revolving Credit Loan $ 5,000,000.00
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Acquisition Term Loan $13,750,000.00
--------------------------------------------------------------------------------
Term Loan $ 2,795,297.62
--------------------------------------------------------------------------------
Construction Loan $ 749,999.80
--------------------------------------------------------------------------------
Third Equipment Loan $ 2,100,000.00
--------------------------------------------------------------------------------
Consolidated Equipment Loan $ 279,573.34
--------------------------------------------------------------------------------
Fourth Equipment Loan $ 2,333,333.41
--------------------------------------------------------------------------------
