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EXHIBIT 10.3
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THIRD AMENDMENT TO FORBEARANCE AGREEMENT
This THIRD AMENDMENT TO FORBEARANCE AGREEMENT (the "AGREEMENT") dated as of June
3, 2000 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 from time to time,
and 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 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 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 term loan (the "TERM
LOAN") as evidenced by a certain Term Promissory Note dated March 22, 1993 (the
"TERM NOTE"), (v) a $1,000,000 construction to permanent loan (the "CONSTRUCTION
LOAN") as evidenced by a certain Construction to Permanent Loan Promissory Note
dated July 31, 1995
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(the "CONSTRUCTION NOTE"), (vi) a $3,000,000 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").
On October 29, 1999, Lender, Borrower and Guarantors entered into a Forbearance
Agreement (as amended and in effect from time to time, the "FORBEARANCE
AGREEMENT") pursuant to which certain provisions of the Loan Documents (as
defined hereinafter) were modified during the Forbearance Period (as defined
therein) and Lender agreed to forbear from exercising its rights and remedies as
a result of the existence and continuance of certain Events of Default under the
Loan Documents.
By instrument dated as of December 30, 1999, the Lender, Borrower and Guarantors
entered into a First Amendment to Forbearance Agreement (the "First Amendment")
pursuant to which the parties agreed, among other things, to extend the
Forbearance Termination date until April 30, 2000.
By instrument dated as of April 30, 2000 the Lender, Borrower and Guarantors
entered into a Second Amendment to Forbearance Agreement (the "Second
Amendment") pursuant to which the parties agreed among other things, to extend
the Forbearance Termination date until June 3, 2000.
Each Guarantor has guaranteed the obligations of Borrower under the Loan
Agreement and Notes, pursuant to their respective Guaranties (collectively,
"GUARANTY").
The Borrower and each Guarantor acknowledge that the Borrower 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 and
each Guarantor acknowledge that they have no defense, offset or counterclaim to
their obligations in respect of the Indebtedness and further that they have 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 April 30, 2000 was not less than
$26,397,303.98.
Hereinafter, this Third Amendment, the Second Amendment, the First Amendment,
the Forbearance Agreement, the Loan Agreement, the Notes, the Guaranties and all
other documents evidencing, relating to or securing the Indebtedness (as defined
herein) (collectively, the "LOAN DOCUMENTS") all instruments, documents and
agreements executed by the Borrower, the 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 D 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.
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The Borrower and Guarantor acknowledge and affirm that (a) Borrower is in
default in the performance of its obligations under the Loan Agreement, the
Forbearance Agreement, the First Amendment, the Second Amendment, 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 Gros-Ite Industries, Inc., represent and reaffirm that Gros-Ite
Industries, Inc., a wholly owned subsidiary of the Borrower, does not now own or
hold any property of any kind, and that the Borrower has and continues to do
business from time to time under the trade name or division identification of
Gros-Ite, Gros-Ite Industries, Gros-Ite Industries, Division of EDAC
Technologies, or similar names. As a result of such trade name use or division
identification, certain EDAC assets may be designated as property of "Gros-Ite",
without in any way intending or causing such property to become the property of
Gros-Ite Industries, Inc. Any such property in the name of "Gros-Ite" has at all
times and continues to be the property of EDAC, and subject to the lien and
security interest of the Lender. The Borrower has not, at any time, transferred
or conveyed any property to Gros-Ite Industries, Inc., and any such transfer
would have been and would be in violation of the Loan Documents.
The Borrower and Guarantor have requested, and Lender has agreed, subject to the
representations, terms and conditions set forth herein: (a) to extend the
Forbearance Termination Date until July 31, 2000; (b) to make certain other
changes to the terms and conditions of the Loan and Forbearance Documents, as
set forth herein. 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 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
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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) for which it has been
presented invoices, 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, and
as a condition to this Third Amendment, the parties hereto agree, represent and
warrant as follows:
A. During the forbearance period as provided for herein, the Borrower will
maintain a minimum monthly operating profit of not less than $100,000.
B. The Borrower's maximum monthly capital expenditure for the months of
June and July 2000 shall not exceed $25,000 in each month.
C. The Borrower must use its best efforts to provide to the Lender by June
9, 2000, at least two term sheets from potential refinancing sources, for the
take-out payment of the obligations owed to the Lender.
D. The Borrower must use its best efforts to obtain a commitment letter by
June 21, 2000, from a potential refinancing source for the take-out payment of
the obligations owed to the Lender, upon such terms and conditions as are
satisfactory to the Lender in its sole discretion.
E. At the request of the Lender, and based upon its sole judgment and
discretion, the Borrower will hire an advisor to the Borrower's chief executive
officer.
F. The Borrower will consent to and cooperate with the conduct of an
updated field examination starting the week of July 3, 2000.
G. In addition to any other similar payment or fee already provided for or
agreed to, the Borrower shall pay to the Lender a Third Amendment Forbearance
Fee of $750 per day, commencing from June 4, 2000 until the earlier of the
satisfaction of the obligations owed to the Lender under the Loan Documents, or
July 31, 2000. The actual payment of such Third Amendment Forbearance Fee shall
be deferred until the earlier of July 31, 2000, or the satisfaction of the
obligations owed to the Lender.
H. Upon presentation to Borrower by lender with an appropriate statement or
statements, by no later than June 30, 2000, the Borrower shall reimburse the
Lender for all of its legal fees (including expenses incurred by the Lender's
legal counsel) incurred to date.
I. Except as provided for herein, all of the terms and conditions of the
Second Amendment to Forbearance Agreement dated as of April 30, 2000 shall
remain in full force and effect.
J. The period of forbearance as previously established in the Second
Amendment is extended to July 31, 2000, subject to the terms and conditions set
forth herein.
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K. 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.
L. To induce the Lender to enter into this Third Amendment, each Guarantor
hereby (a) consents to this Third Amendment and (b) affirms and ratifies its
Guaranty with respect to the Loans, the Loan Agreement and the other Loan and
Forbearance Documents as amended hereby, 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 Agreement, the Forbearance Agreement, the First Amendment to Forbearance
Agreement, the Second Amendment to 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.
M. 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 and each Guarantor does hereby release, acquit and forever discharge
Lender, its respective representatives, parents, 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, each Guarantor
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 Lender
Parties. In addition, the Borrower and each Guarantor 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.
N. LENDER, BORROWER AND EACH GUARANTOR 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
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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.
O. BORROWER AND EACH GUARANTOR ACKNOWLEDGE THAT THE TRANSACTIONS EVIDENCED
BY THE LOAN AND FORBEARANCE DOCUMENTS AND AS CONTEMPLATED BY THIS AGREEMENT ARE
COMMERCIAL TRANSACTIONS AND WAIVE THEIR RESPECTIVE 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 WAIVE THEIR RESPECTIVE RIGHT TO
REQUEST THAT LENDER POST A BOND, WITH OR WITHOUT SURETY, TO PROTECT BORROWER
AND/OR GUARANTOR 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.
P. EACH OF BORROWER AND GUARANTOR ACKNOWLEDGE 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 THEIR ATTORNEYS. EACH
OF BORROWER AND GUARANTOR FURTHER ACKNOWLEDGE THAT LENDER HAS NOT AGREED WITH OR
REPRESENTED TO BORROWER, GUARANTOR OR ANY OTHER PARTY HERETO THAT THE PROVISIONS
HEREIN WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
Q. The Borrower agrees to pay all costs and expenses, whenever incurred by
Lender, including without limitation, attorneys' fees, consultant's fees,
appraisal fees in connection with the Loan Documents and the Loan and
Forbearance Documents, including but not limited to the preparation,
negotiation, administration and enforcement of this Agreement and the
transactions contemplated herein. Nothing herein shall be construed to limit the
Borrower's obligation to pay fees, costs and expenses pursuant to the terms of
the Loan and Forbearance Documents.
R. Borrower and Guarantor 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.
S. 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.
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T. 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).
U. 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.
V. Except as specifically set forth herein, nothing herein shall be
construed to be a waiver of any requirements of the Loan Agreement or the other
Loan and Forbearance Documents.
W. All terms, conditions, agreements and representations contained in the
Loan and Forbearance Documents and not inconsistent with anything contained
herein shall survive and continue in accordance with their stated terms, and are
specifically restated and reaffirmed as if fully set forth herein.
X. This Agreement shall be binding upon each Borrower and Guarantor and
upon the respective heirs, successors, assigns and legal representatives of each
such Borrower and Guarantor, and shall inure to the benefit of Lender, Lender's
Affiliates and its successors, endorsees, and assigns. No right, benefit,
interest or obligation hereunder may be assigned by any Borrower or Guarantor
without the prior written consent of Lender. Lender may, in its sole discretion
and without notice to or consent of any Borrower or Guarantor, sell, assign,
grant a participation in or otherwise dispose of all or any portion of its
rights or interests in the Loan or the Loan Documents to any person or entity,
including, without limitation, any Borrower or Guarantor. In connection
therewith, Lender may disclose to a prospective purchaser, assignee, participant
or transferee, and their agents, attorneys or other consultants, any
information, confidential or otherwise, possessed by Lender relating to the Loan
Documents and the Loan and Forbearance Documents.
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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/G. Xxxxxxxxxxx Xxxxxx
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G. Xxxxxxxxxxx Xxxxxx
Its Vice President
(Duly Authorized)
BORROWER:
EDAC TECHNOLOGIES CORPORATION
By: /s/Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Its Vice President
(Duly Authorized)
GUARANTORS:
GROS-ITE INDUSTRIES, INC.
By: /s/Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Its Secretary
(Duly Authorized)
APEX MACHINE TOOL COMPANY, INC.
BY: /s/Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Its Secretary
(Duly Authorized)
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EXHIBIT A
NAME OF LOAN OUTSTANDING BALANCE
AS OF APRIL 30, 2000
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Revolving Credit Loan $6,271,897.17
Acquisition Term Loan $12,748,366.70
Term Loan $2,657,829.26
Construction Loan $711,110.88
Third Equipment Loan $1,750,000.00
Consolidated Equipment Loan $216,433.34
Fourth Equipment Loan $2,041,666.63
