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EXHIBIT 10.44
CONSENT AND AMENDMENT TO FORBEARANCE AGREEMENT
This CONSENT AND AMENDMENT TO FORBEARANCE AGREEMENT, dated as of June
25, 2001 (this "Agreement"), is by and among (a) TransTechnology Corporation
("TransTechnology"), TransTechnology Xxxxxx-Orbis GmbH ("GmbH") and
TransTechnology (GB) Limited ("Limited", together with TransTechnology and GmbH,
the "Borrowers"), (b) Fleet National Bank ("FNB") and the other lending
institutions listed on Schedule 1 to the Credit Agreement (as hereinafter
defined) (collectively, the "Lenders"), (c) FNB, acting through its London
Branch, as Sterling Fronting Bank (the "Sterling Fronting Bank"), (d) BHF-BANK
Aktiengesellschaft, as DM Fronting Bank (the "DM Fronting Bank"; together with
the Sterling Fronting Bank, the "Fronting Banks"), (e) FNB, as issuing bank for
Letters of Credit (in such capacity, the "Issuing Bank"), and (f) FNB as
Administrative Agent for the Lenders, the Fronting Banks and the Issuing Bank
(in such capacity, the "Administrative Agent").
WHEREAS, the Borrowers, the Lenders, the Fronting Banks, the Issuing
Bank, ABN AMRO Bank N.V., as Syndication Agent, Bank One, NA, as Documentation
Agent, and the Administrative Agent are parties to that certain Second Amended
and Restated Credit Agreement dated as of June 30, 1995, and amended and
restated as of July 24, 1998, as further amended and restated as of August 31,
1999, as amended by that certain Consent and Amendment Agreement No. 1 dated as
of August 21, 2000, as further amended by that certain Amendment Agreement No. 2
dated as of December 29, 2000, and as further amended by that certain Amendment
Agreement Xx. 0 ("Xxxxxxxxx Xx. 0") dated as of January 31, 2001 (as so amended
and restated, the "Credit Agreement"). Capitalized terms used herein unless
otherwise defined shall have the respective meanings set forth in the Credit
Agreement;
WHEREAS, pursuant to that certain Forbearance and Waiver Agreement (the
"Forbearance Agreement") dated as of March 29, 2001, by and among the Borrowers,
the Lenders, the Fronting Banks, and the Administrative Agent, the Lenders and
the Administrative Agent agreed to forbear from (a) exercising their rights and
remedies under the Credit Agreement and the other Loan Documents to collect the
indebtedness of the Borrowers to the Administrative Agent and the Lenders under
the Credit Agreement and the other Loan Documents and (b) ceasing to make
Revolving Credit Loans or International Facility Loans or to issue, extend or
renew Letters of Credit;
WHEREAS, in accordance with Section2 of the Forbearance Agreement, the
Borrowers have requested that the Lenders consent to the sale (the "Sale") of
the (i) Breeze Industrial Products Division of TransTechnology to Breeze
Industrial Products Corporation (a new entity being formed by a management group
led by Xxx Xxxxx with Industrial Growth Partners), and (ii) Pebra Division of
GmbH to Breeze Pebra GmbH (a new entity being formed by a management group led
by Xxx Xxxxx with Industrial Growth Partners) (the "Breeze Assets"); and
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WHEREAS, the Lenders and the Administrative Agent are willing to
consent to the Sale, but only on the terms and subject to the conditions set
forth herein;
NOW, THEREFORE, in consideration of the foregoing premises, the parties
hereto hereby agree as follows:
SECTION 1. CONSENT TO SALE. Subject to the satisfaction of the
conditions contained in Section3 hereof, the Lenders, the Fronting Banks, and
the Administrative Agent consent to the Sale and to release the Administrative
Agent's liens on the Breeze Assets so long as (a) the Net Cash Proceeds received
by the Borrowers in connection with the Sale (the "Sale Proceeds") are not less
than $45,000,000, (b) all documents (the "Sale Documents") relating to the Sale,
including, but not limited to any fairness opinions issued in connection with
the Sale, shall be in form and substance satisfactory to the Administrative
Agent, (c) all Sale Proceeds shall be applied immediately upon receipt first, to
pay in full the principal of the Term Loan and second, to prepay the Revolving
Credit Loans, DM Eurocurrency Loans or DM Overdraft Advances, and (d) the Sale
Proceeds are received not later than July 11, 2001. The Borrowers, the Lenders,
the Fronting Banks, and the Administrative Agent hereby agree that upon the
consummation of the Sale the Total Revolving Credit Commitment shall be reduced
to $161,000,000 whereupon the Revolving Credit Commitments of the Lenders shall
be reduced pro rata on such date in accordance with their respective Commitment
Percentages. The Lenders and the Fronting Banks authorize the Administrative
Agent to enter into appropriate release documents necessary in order to release
the Administrative Agent's liens on the Breeze Assets.
SECTION 2. AMENDMENT TO FORBEARANCE AGREEMENT. (a) The Forbearance
Agreement is hereby amended with effect from the Effective Date of this
Agreement as follows:
(i) Section 3(e) of the Forbearance Agreement is amended by
deleting the date "June 27, 2001" contained therein and substituting
the date "July 11, 2001".
(ii) Schedule 6(a) of the Forbearance Agreement is deleted in
its entirety and replaced with Schedule 6(a) attached hereto.
(iii) Section 10(b) and (c) of the Forbearance Agreement is
amended by deleting each paragraph in its entirety and replacing them
with the following new paragraphs:
"(b) An additional forbearance fee equal to one-half of
one percent (1/2%) of the Revolving Credit Commitment
and the then outstanding principal amount of the Term
Loan (after giving effect to the payment of the Loans
if the payment is due in connection with the closing
of the Sale) on June 27, 2001;
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(c) Intentionally Omitted; and"
(iv) The Forbearance Agreement shall be deemed amended to
include capitalized defined terms used in this Agreement to the extent
not defined in the Forbearance Agreement.
(b) The Forbearance Agreement is hereby amended with effect from the
closing date of the Sale (so long as the Sale occurs on or prior to July 11,
2001) as follows:
(i) Section 1 of the Forbearance Agreement is hereby amended
by replacing the existing (iii) contained therein in its entirety with
the phrase "(iii) intentionally omitted".
(ii) Schedule 3(a) of the Forbearance Agreement is deleted in
its entirety and replaced with Schedule 3(a) attached hereto.
(iii) Section 3(a) of the Forbearance Agreement is amended by
inserting at the end of the second sentence contained therein the
following new proviso: ";provided, however, Modified Consolidated
EBITDA for periods after June 1, 2001 shall not include any amounts
relating to or otherwise attributed to the Breeze Assets."
(iv) Section 3(b) of the Forbearance Agreement is amended by
(A) deleting the dollar amount "$162,500,000" contained in the first
sentence thereof and replacing it with the dollar amount "$154,000,000"
and (B) inserting at the end of thereof the following new sentence:
"Notwithstanding anything to the contrary stated in Section 3 of the
Credit Agreement, Total DM Facility Usage shall not exceed the DM
Equivalent at such time of $10,000,000 minus the amount of the DM
Eurocurrency Loans and DM Overdraft Advances prepaid in connection with
the Sale."
(v) Section 3(e) of the Forbearance Agreement is amended by
deleting the phrase "(i) July 11, 2001 unless the $50,000,000
Prepayment has occurred, and (ii) September 27, 2001 even if the
$50,000,000 Prepayment has occurred" contained in the first sentence
therein and replacing it with the phrase "September 27, 2001".
SECTION 3. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Agreement shall be conditioned upon the satisfaction of the following conditions
precedent:
SECTION 3.1. DELIVERY OF DOCUMENTS, PAYOFF OF LOANS.
(a) This Agreement shall have been executed and delivered to the
Administrative Agent by each of the Borrowers, each of the Guarantors, and the
requisite Lenders.
(b) No later than the close of business on June 29, 2001, the
Administrative Agent shall have received from the Borrowers the signed purchase
and sale agreements related to the Breeze Assets located in the United
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States which shall be in form and substance satisfactory to the Administrative
Agent.
SECTION 3.2. LEGALITY OF TRANSACTION. No change in applicable law shall
have occurred as a consequence of which it shall have become and continue to be
unlawful on the date this Agreement is to become effective (a) for the
Administrative Agent or any Lender to perform any of its obligations under any
of the Loan Documents or (b) for any of the Borrowers to perform any of its
agreements or obligations under any of the Loan Documents.
SECTION 3.3. PERFORMANCE. Each of the Borrowers shall have duly and
properly performed, complied with and observed in all material respects its
covenants, agreements and obligations contained in the Loan Documents required
to be performed, complied with or observed by it on or prior to the date this
Agreement is to become effective. Except for the Specified Defaults (as defined
in the Forbearance Agreement), no event shall have occurred on or prior to the
Effective Date, and be continuing, and no condition shall exist on the Effective
Date, which constitutes a Default or Event of Default.
SECTION 3.4. PROCEEDINGS AND DOCUMENTS. All corporate, governmental and
other proceedings in connection with the transactions contemplated by this
Agreement and all instruments and documents incidental thereto shall be in form
and substance reasonably satisfactory to the Administrative Agent and the
Administrative Agent shall have received all such counterpart originals or
certified or other copies of all such instruments and documents as the
Administrative Agent shall have reasonably requested.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers hereby
represents and warrants to the Lenders as follows:
(a) Except as set forth on Schedule 6(a) to the Forbearance Agreement,
the representations and warranties of such Borrower and of each Guarantor
contained in the Credit Agreement, the Forbearance Agreement and the other Loan
Documents to which such Borrower or Guarantor, as the case may be, is a party
were true and correct in all material respects when made and continue to be true
and correct in all material respects on the date hereof, except that the
financial statements and projections referred to in the representations and
warranties contained in the Credit Agreement shall be the financial statements
and projections of TransTechnology and its Subsidiaries most recently delivered
to the Administrative Agent, and except as such representations and warranties
are affected by the transactions contemplated hereby;
(b) The execution, delivery and performance by such Borrower of this
Agreement and the consummation of the transactions contemplated hereby: (i) are
within the corporate powers of such Borrower and have been duly authorized by
all necessary corporate action on the part of such Borrower, (ii) do not require
any approval or consent of, or filing with, any governmental agency or
authority, or any other person, association or entity, which bears on the
validity or enforceability of this Agreement and which is required by law or any
regulation or rule of any agency or authority, or other person, association
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or entity, (iii) do not violate any provisions of any order, writ, judgment,
injunction, decree, determination or award presently in effect in which such
Borrower is named, any law, regulation or rule binding on or applicable to such
Borrower or any provision of the charter documents or by-laws of such Borrower,
(iv) do not result in any breach of or constitute a default under any agreement
or instrument to which such Borrower is a party or to which it or any of its
properties are bound, including without limitation any indenture, credit or loan
agreement, lease, debt instrument or mortgage, except for such breaches and
defaults which would not have a material adverse effect on such Borrower and its
Subsidiaries taken as a whole, and (v) do not result in or require the creation
or imposition of any mortgage, deed of trust, pledge or encumbrance of any
nature upon any of the assets or properties of such Borrower;
(c) This Agreement and the Credit Agreement constitute the legal, valid
and binding obligations of such Borrower, enforceable against such Borrower in
accordance with their respective terms, provided that (i) enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws of general application affecting the rights and remedies of
creditors, and (ii) enforcement may be subject to general principles of equity,
and the availability of the remedies of specific performance and injunctive
relief may be subject to the discretion of the court before which any proceeding
for such remedies may be brought; and
(d) As of the date hereof, no "Event of Default" under and as defined
in any instrument evidencing any Subordinated Debt has occurred.
SECTION 5. REAFFIRMATION. Except as modified hereby, the Borrowers
hereby reaffirm in all respects all the covenants, agreements, terms and
conditions of the Credit Agreement, the Forbearance Agreement and the other Loan
Documents which are incorporated in full herein by reference, and all terms,
conditions and provisions thereof shall remain in full force and effect.
SECTION 6. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Agreement, it shall
not be necessary to produce or account for more than one such counterpart signed
by the party against whom enforcement is sought.
SECTION 7. RELEASE. In order to induce the Administrative Agent and the
Lenders to enter into this Agreement, each Borrower acknowledges and agrees
that: (i) no Borrower has any claim or cause of action against the
Administrative Agent or any Lender (or any of its respective directors,
officers, employees or agents); (ii) no Borrower has any offset right,
counterclaim or defense of any kind against any of their respective obligations,
indebtedness or liabilities to the Administrative Agent or any Lender; and (iii)
each of the Administrative Agent and the Lenders has heretofore properly
performed and satisfied in a timely manner all of its obligations to each
Borrower. The Borrowers wish to eliminate any possibility that any past
conditions, acts, omissions, events, circumstances
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or matters would impair or otherwise adversely affect any of the Administrative
Agent's and the Lenders' rights, interests, contracts, collateral security or
remedies. Therefore, each Borrower unconditionally releases, waives and forever
discharges (A) any and all liabilities, obligations, duties, promises or
indebtedness of any kind of the Administrative Agent or any Lender to any
Borrower, except the obligations to be performed by the Administrative Agent or
any Lender on or after the date hereof as expressly stated in this Agreement,
the Credit Agreement, the Forbearance Agreement and the other Loan Documents,
and (B) all claims, offsets, causes of action, suits or defenses of any kind
whatsoever (if any), whether arising at law or in equity, whether known or
unknown, which any Borrower might otherwise have against the Administrative
Agent, any Lender or any of its directors, officers, employees or agents, in
either case (A) or (B), on account of any condition, act, omission, event,
contract, liability, obligation, indebtedness, claim, cause of action, defense,
circumstance or matter of any kind existing as of the date hereof, or occurring
prior to the date hereof.
SECTION 8. EFFECTIVE DATE. This Agreement shall be deemed to be
effective as of the date of satisfaction of the last conditions precedent set
forth inSection3 hereof (the "Effective Date").
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have duly executed this Consent and
Amendment to Forbearance Agreement as a sealed instrument as of the date first
set forth above.
TRANSTECHNOLOGY CORPORATION
By: /s/Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Treasurer & CFO
TRANSTECHNOLOGY XXXXXX-ORBIS GmbH
By: /s/Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
TRANSTECHNOLOGY (GB) LIMITED
By: /s/Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
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FLEET NATIONAL BANK,
individually, as Administrative Agent and
as Sterling Fronting Bank
By: /s/Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
BHF-BANK AKTIENGESELLSCHAFT,
as DM Fronting Bank
By: /s/Xxxxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: Treasurer
By: /s/Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Treasurer
ABN AMRO BANK N.V.,
individually and as Syndication Agent
By: /s/Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Group Vice President
By: /s/Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
BANK ONE, NA, individually
and as Documentation Agent
By: /s/Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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THE BANK OF NEW YORK
By: /s/Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
KEY CORPORATE CAPITAL INC.
By: /s/Xxxx Xxxxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
COMERICA BANK
By: /s/Xxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
DRESDNER BANK, AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By: /s/Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: First Vice President
By: /s/Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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FLEET NATIONAL BANK, (successor by
merger to Summit Bank)
By: /s/Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
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The Guarantors under (and as defined in) the Subsidiary Guaranty hereby
acknowledge that they have read and are aware of the provisions of this
Agreement and hereby reaffirm their absolute and unconditional guaranty of the
Borrowers' payment and performance of their obligations to the Lenders and the
Administrative Agent under the Credit Agreement as affected hereby.
TRANSTECHNOLOGY ACQUISITION CORPORATION
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
PALNUT FASTENERS, INC.
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
INDUSTRIAL RETAINING RING COMPANY
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
RETAINERS, INC.
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
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RANCHO TRANSTECHNOLOGY CORPORATION
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
TRANSTECHNOLOGY SYSTEMS & SERVICES, INC.
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
ELECTRONIC CONNECTIONS AND ASSEMBLIES,INC.
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
SSP INDUSTRIES
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
SSP INTERNATIONAL SALES, INC.
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
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TRANSTECHNOLOGY XXXXXX INC.
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
XXXXXX INC.
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
TCR CORPORATION
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
AEROSPACE RIVET MANUFACTURERS CORPORATION
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
NORCO, INC.
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
XXXXXXX RING & WASHER INC.
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
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TRANSTECHNOLOGY ENGINEERED COMPONENTS, LLC
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
TRANSTECHNOLOGY CANADA CORPORATION
By: /s/Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Secretary
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Schedule 3(a)
Financial Covenant
Period Modified Consolidated EBITDA
------ ----------------------------
April 1, 2001 through May 31, 2001 $6,700,000
April 1, 2001 through June 30, 2001 $10,400,000
April 1, 2001 through July 31, 2001 $12,300,000
April 1, 2001 through August 31, 2001 $15,500,000
April 1, 2001 through September 30, 2001 $20,000,000
