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AMENDMENT AND FORBEARANCE AGREEMENT
NBD Bank ("NBD" or "Lender"), Medar, Inc. ("Medar"), Integral Vision,
Ltd. ("Integral") and Medar Canada, Ltd. ("Medar Canada"), enter into this
Amendment and Forbearance Agreement (this "Agreement"), on December ____, 1998.
For convenience (i) Medar and Integral are referred to herein, collectively, as
"Borrowers" and, individually, as a "Borrower," (ii) Medar Canada in its
capacity as guarantor of Borrowers' debt to NBD, and Integral, in its capacity
as guarantor of Medar's debt to NBD, and any other person or entity who
guaranteed the obligations of one or both of Borrowers to NBD are referred to
herein, collectively, as "Guarantors", and, individually, as a "Guarantor," and
(iii) Borrowers and Guarantors are referred to herein, collectively, as the
"Parties" and, individually, as a "Party."
RECITALS
A. NBD, as lender and secured party, and Borrowers, as borrowers and
debtors, are parties to a certain Amended and Restated Revolving Credit and Loan
Agreement dated as of July 31, 1998 (as may be amended and with all supplements
thereto, the "Credit Agreement"). The Credit Agreement amended and restated a
Revolving Credit and Loan Agreement by and among NBD, the Parties and Integral
Vision-Aid, Inc. (formerly known as Automatic Inspection Devices) dated August
10, 1995, as amended by agreements dated October 12, 1995, October 31, 1995,
March 29, 1996, August 11, 1996, February 27, 1997, March 28, 1997, June 27,
1997, July 15, 1997 and March 16, 1998 (the "Former Loan Agreement"). Integral
Vision-Aid, Inc. was merged with and into Medar prior to the execution of the
Credit Agreement. Capitalized terms used herein but not defined shall have the
meanings given to them in the Credit Agreement.
B. In furtherance of, and in accordance with, the Credit Agreement, NBD
agreed, among other things, to make available to Borrowers (i) a secured
committed revolving credit facility in an aggregate principal amount not to
exceed $10,000,000 (the "Revolving Credit Facility"), against the security of
accounts receivable and inventory described in the Credit Agreement, subject to
certain limitations; and (ii) letters of credit in an aggregate amount
outstanding not to exceed $500,000 subject to availability under the Revolving
Credit Facility.
C. The Revolving Credit Facility is evidenced by a Revolving Note dated
as of July 31, 1998, in the original principal amount of $10,000,000 (the
"Revolving Note").
D. Under the Former Loan Agreement, NBD granted to Medar a loan to
purchase equipment (the "Equipment Loan"), which loan is evidenced by an
Installment Business Loan Note dated March 20, 1997 in the original principal
amount of $131,315.80 (the "Equipment Note").
E. NBD also extended a term loan to Medar in the original principal
amount of $1,500,000 (the "1997 Mortgage Loan"), which loan is evidenced by an
Amended and Restated Term Note, dated July 15, 1997, in the original principal
amount of $1,500,000 (the "1997
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Mortgage Note"), which amended and restated a Term Note dated June 29, 1993 in
the original principal amount of $2,500,000. Proceeds of the 1997 Mortgage Note
were used to finance property commonly known as 00000 Xxxxx Xxxxx, Xxxxxxxxxx
Xxxxx, Xxxxxxxx (the "Grand River Premises").
F. In addition, NBD extended a term loan to Medar in the original
principal amount of $2,540,000 (the "1995 Mortgage Loan") evidenced by an
Installment Business Loan Note dated October 31, 1995 in the original principal
amount of $2,540,000 (the "1995 Mortgage Note"). The proceeds of the 1995
Mortgage Note were used to finance property commonly known as 00000 Xxxxxxxxx
Xxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx (the "Crestview Court Premises").
G. In addition, NBD made available to Medar a business credit card
authorization (the "Charge Card Authorization") in the aggregate maximum amount
of $60,000 and Instaloans with current amounts outstanding equal to $8,100.30,
$68,895.59, $11,865.35 and $12,719.47, respectively (the "Instaloan").
H. Among other mortgages and security agreements, Medar executed and
delivered to NBD (A) General Security Agreement dated March 29, 1996 (as may be
amended and with all supplements thereto, the "Medar Security Agreement"), and
(B) a Collateral Assignment of Proprietary Rights and Security Agreement, dated
July 15, 1997 (the "Proprietary Rights Agreement"). For convenience, the Medar
Security Agreement and the Proprietary Rights Agreement are referred to herein,
collectively, as the "Security Agreements."
I. In addition to the Medar Security Agreement and the Proprietary
Rights Agreement, Medar also executed and delivered to NBD (i) an Amended and
Restated Mortgage and Security Agreement, dated June 29, 1993, and recorded on
August 20, 1993, in Liber 13885, Page 040 of the Oakland County Records (as may
be amended and with all supplements thereto, the "1993 Mortgage"), which 1993
Mortgage relates to the Grand River Premises; and (ii) a Future Advance Mortgage
dated October 31, 1995, and recorded in Liber 15799, Page 151 of the Oakland
County Records (as may be amended and with all supplements thereto, the "1995
Mortgage"), which 1995 Mortgage relates to the Crestview Premises. For
convenience, the 1993 Mortgage and the 1995 Mortgage are referred to herein,
collectively, as the "Mortgages."
J. All of the obligations of Borrowers to NBD, whether then existing or
thereafter created or arising, are guaranteed by Medar Canada, pursuant to that
certain Guaranty and Postponement of Claim dated August 10, 1995 (as may be
amended and with all supplements thereto, the "Medar Canada Guaranty"). In
connection with the Medar Canada Guaranty, Medar Canada executed and delivered
to NBD a General Security Agreement dated May 1, 1996 (the "Medar Canada
Security Agreement").
K. All of the obligations of Medar to NBD, whether then existing or
thereafter created or arising, are guaranteed by Integral and secured by
Integral's assets pursuant to that
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certain Composite Guaranty and Debenture dated as of June 7, 1996 (as may be
amended and with all supplements thereto, the "Integral Guaranty").
L. For convenience, the Medar Canada Guaranty and the Integral Guaranty
are referred to herein, collectively, as the "Guaranties," and such Guaranties,
the Medar Security Agreement and all other documents and instruments executed by
any Guarantor in connection therewith are referred to herein, collectively, as
the "Guarantor Loan Documents."
M. For convenience, all of the foregoing documents, mortgages,
agreements, assignments and promissory notes set forth in Recitals A through L
above, together with any other documents, instruments, agreements or promissory
notes executed in connection with, or in furtherance of, any of the foregoing,
as amended from time to time, including as amended by this Agreement, but
exclusive of all present or future oral agreements between NBD and any one or
more of the Parties, are referred to herein, collectively, as the "Loan
Documents."
N. On July 15, 0000, Xxxxxxxx Xxxxxx Capital Advisors, L.L.C.
("Xxxxxxxx") and several creditors, including:
(a) Ohio National Fund, Inc./Omni Portfolio;
(b) Maxco, Inc.;
(c) Ohio National Fund, Inc./Social Awareness Portfolio;
(d) Ohio National Fund, Inc./Equity Portfolio;
(e) Industrial Boxboard Corporation Profit-Sharing Plan
and Trust;
(f) Xxxxxx X. Xxxx XXX Rollover; and
(g) State Street Bank and Trust Company, as Trust for The
Textron Master Trust
(collectively, the "Junior Creditors"), executed a Subordination Agreement (the
"Textron Subordination Agreement"), whereby the above-referenced creditors and
Xxxxxxxx subordinated all present and future indebtedness of Medar, Medar Canada
and Integral to such creditors (the "Subordinated Debt") in favor of all present
and future obligations to NBD (collectively, the "NBD Obligations"), provided,
however, that the NBD Obligations shall not exceed $23,000,000 in the aggregate
outstanding at any one time, including interest, costs and expenses.
O. On November 10, 1998 (i) there was $8,837,500.00 in principal owing
by Borrowers to NBD under the Revolving Credit Facility, (ii) there was $0 in
principal owing by Borrowers to NBD under the Letter of Credit Facility, (iii)
there was $89,732.40 in principal
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owing by Medar to NBD under the Equipment Loan Note, (iv) there was $
1,187,500.00 in principal owing by Medar to NBD under the 1997 Mortgage Note
(v), there was $2,032,004.00 in principal owing by Medar to NBD under the 1995
Mortgage Note, (vi) there was $41,580.71 in principal owing by Medar to NBD
under the Instaloans, and (vii) as of November 15, 1998, there was $34,965.18 in
principal owing by Medar to NBD under the Charge Card Authorization, in each
case, plus accrued but unpaid interest, costs and expenses (including attorneys'
fees) called for by the Credit Agreement or other Loan Documents. For
convenience, all of the obligations referred to in the immediately preceding
sentence, together with all other principal and interest due or becoming due to
NBD, together with the payment of all other sums, indebtedness and liabilities
of any and every kind now or hereafter owing and to become due from Borrowers to
NBD however created, incurred, evidenced, acquired or arising, and whether
direct or indirect, primary, secondary, fixed or contingent, matured or
unmatured, joint, several, or joint and several, and whether for principal,
interest, reimbursement obligations, indemnity obligations, obligations under
guaranty agreements, fees, costs, expenses, or otherwise, all of Borrowers'
obligations under this Agreement, together with all other present and future
obligations of Borrowers to NBD, are referred to herein, collectively, as the
"Obligations."
P. Each Party, jointly and severally, acknowledges and agrees that (i)
the Obligations, Guarantors' obligations under the Guarantor Loan Documents, and
all other obligations of any one or more of the Parties to NBD are owing to NBD
without setoff, recoupment, defense or counterclaim, in law or in equity, of any
nature or kind; (ii) the Obligations are secured by valid, perfected,
indefeasible, enforceable, first priority liens and security interests in favor
of NBD in, among other things all of each Borrowers' instruments, documents,
chattel paper, contracts, accounts, contract rights, general intangibles
(including patents, trademarks and copyrights), equipment and inventory as more
fully described in the Security Agreements. The Obligations are also secured by
a first priority lien, security interest and mortgage in favor of NBD with
respect to the Grand River Premises and the Crestview Premises, as more fully
described in the Mortgages. In addition, Medar Canada's Obligations under the
Medar Canada Guaranty are secured by a valid, perfected, indefeasible,
enforceable first lien and security interest in, among other things, all of
Medar Canada's contracts, contract rights, general intangibles, equipment and
inventory, as more fully described in the Medar Canada Security Agreement. For
convenience all collateral referred to above, together with all other collateral
described in the Loan Documents and all collateral heretofore, simultaneously
herewith or hereafter granted to NBD by any one or more of the Parties to secure
any of the Obligations or any one or more of the Parties' other obligations to
NBD, including, without limitation, the obligations of any one or more of the
Guarantors under the Guarantor Loan Documents, is referred to, collectively, as
the "Collateral."
Q. Each Party reaffirms, ratifies, confirms and approves its
obligations and duties under the Loan Documents, as modified by this Agreement.
Without limiting the generality of the immediately preceding sentence,
Guarantors hereby reaffirm, ratify, confirm and approve their obligations and
duties under the Guarantor Loan Documents, and the provisions herein, and
acknowledge and agree that the Guarantor Loan Documents extend to, and cover,
all of the Obligations, including the sums described in Paragraph M above. Each
Party, jointly and
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severally, reaffirms, ratifies and confirms the liens, mortgages, assignments
and security interests granted to NBD in the Collateral under the Loan Documents
or otherwise.
R. Borrowers are in default under the Loan Documents for the following
reasons:
(i) Based on Borrowers' financial statements for the quarter
ended September 30, 1998 (the "Third Quarter Financials"), Borrowers'
Tangible Net Worth is less than $4,250,000. (The Third Quarter
Financials indicate that Borrowers' Tangible Net Worth was $3,857,762);
(ii) Based on the Third Quarter Financials, Borrowers' Debt to
Tangible Net Worth Ratio exceeds 6.25 to 1.0. (The Third Quarter
Financials indicate that Borrowers' Debt to Tangible Net Worth Ratio
was 6.74 to 1.0); and
(iii) Medar is in default under the Note and Warrant Purchase
Agreement dated as of July 15, 1997 by and among Medar and the Junior
Creditors.
For convenience, the above-described defaults are referred to
collectively as the "Existing Defaults." Each Party represents and warrants,
after due inquiry and investigation, that none of them is aware of any other
Events of Default or defaults, or of any event which, with the passage of time,
notice, or both, would become an Event of Default or a default under the Loan
Documents or this Agreement.
S. Each Party also acknowledges that based on the Existing Defaults,
NBD has the right, without further notice, to enforce its rights under the Loan
Documents (including the Guarantor Loan Documents) and applicable law. Further,
if NBD took such action, each Party acknowledges that NBD's actions would be
within NBD's rights under the Loan Documents (including the Guarantor Loan
Documents) and applicable law, and would be reasonable and appropriate under the
circumstances.
T. Each Party acknowledges and agrees that (i) NBD has fully performed
all of its obligations under the Loan Documents; (ii) NBD has no obligation to
continue to lend to Borrowers, or to forbear from enforcing its rights and
remedies beyond the Forbearance Period (as hereinafter defined); (iii) any loans
made after the date of this Agreement will be made in NBD's sole discretion; and
(iv) NBD has made no representations of any nature or kind that funding in any
amount will continue, or that the Forbearance Period (as hereinafter defined)
will be extended beyond the expiration thereof.
U. Each Party further acknowledges and agrees that the actions taken by
NBD to date in furtherance of the Loan Documents are reasonable and appropriate
under the circumstances and are within NBD's rights under the Loan Documents and
applicable law.
V. Each Party represents and warrants to NBD that it has received
direct and substantial economic benefit from all of the Obligations and that it
will continue to receive
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direct and substantial economic benefit from such Obligations, and from any
other loans made or which may be made in the future to Borrowers.
W. The Parties have informed NBD that they are in the process of
seeking alternative sources of financing for Borrowers. The Parties have
requested that NBD agree to forbear from exercising its rights and remedies
under the Loan Documents and applicable law in connection with the Existing
Defaults until March 5, 1999 to allow the Parties time to obtain alternative
sources of financing and consummate transactions with respect thereto.
X. Subject to the terms and conditions of this Agreement, and in
reliance on the Parties' agreements, acknowledgments, representations, and
warranties in this Agreement, NBD has agreed to amend the Loan Documents and
waive the Existing Defaults under the Loan Documents (including the Guarantor
Loan Documents), as set forth below.
AGREEMENT
Based on the foregoing Recitals (which are incorporated herein as
agreements, representations, warranties, and covenants of the respective
Parties, as the case may be), and for other good and valuable consideration, the
adequacy and receipt of which are acknowledged by each Party hereto, NBD and
each Party agree as follows:
1. FORBEARANCE. Subject to the following conditions and those set forth
below, NBD agrees to forbear from enforcing its rights and remedies with respect
to the Existing Defaults through March 5, 1999 (the "Forbearance Period"):
(a) There are no further Events of Default or defaults under
the Loan Documents (including a worsening of the Existing Defaults beyond the
Permitted Deviations, as defined below) and each Party fully complies with all
the terms and conditions of this Agreement and the other Loan Documents; and
(b) NBD receives, on or before December 11, 1998 (the
"Effective Date"), a fully-executed copy of this Agreement, acknowledged by
counsel for each of the Parties as provided below, together with fully-executed
copies of all of the Exhibits that require signature.
2. DEMAND DISCRETIONARY FACILITY. The Credit Agreement is hereby
amended to convert the Revolving Credit Facility to a demand discretionary
facility. Under this facility (the "Demand Discretionary Facility"), NBD, in its
sole and absolute discretion, may decide whether or not to make any future loans
to Borrowers. NBD may refuse to advance for any reason or for no reason at any
time, even if Borrowers have collateral availability to borrow under the Loan
Documents and no Event of Default or default has occurred under such Loan
Documents. UPON THE EARLIER OF (A) DEMAND (B) A DEFAULT OR EVENT OF DEFAULT
UNDER THE LOAN DOCUMENTS OR THE FORBEARANCE AGREEMENT (OTHER THAN THE EXISTING
DEFAULTS), OR (C) THE EXPIRATION OF THE FORBEARANCE PERIOD, THE DEMAND
DISCRETIONARY FACILITY SHALL, AT
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NBD'S OPTION AND WITHOUT FURTHER NOTICE, TERMINATE AND ALL OBLIGATIONS OF
BORROWERS UNDER SUCH DEMAND DISCRETIONARY FACILITY SHALL BE DUE AND PAYABLE IN
FULL. Any reference in any document or instrument (including the Credit
Agreement) to the Revolving Credit Facility shall constitute a reference to the
Demand Discretionary Facility and any reference in any document or instrument
(including the Credit Agreement) to Revolving Loans shall constitute a reference
to loans made under the Demand Discretionary Facility. The Credit Agreement is
further amended to eliminate the requirement to pay any Commitment Fees (as
defined in the Credit Agreement) which would have been due and payable after the
Effective Date. Anything to the contrary in the Loan Documents notwithstanding,
the fact that NBD in its sole and absolute discretion makes one or more Loans
after the date of this Agreement does not in any way obligate NBD to make any
other Loans under the Demand Discretionary Facility or otherwise.
3. PERMITTED DEVIATIONS. Borrowers have informed NBD that the Existing
Defaults set forth in Recitals (R)(i) and (ii) above may worsen during the
Forbearance Period and Borrowers have requested that NBD make an allowance for
this. Thus, as an accommodation to Borrowers, NBD agrees that it shall not be a
worsening of the Existing Defaults or a new default under the Loan Documents or
this Agreement so long as the following financial covenants are met during the
Forbearance Period (the "Permitted Deviations"):
(a) Tangible Net Worth shall be no less than $3,000,000 at
November 30, 1998; and no less than $3,900,000 at December 31, 1998 and
thereafter; and
(b) Total Liabilities to Tangible Net Worth shall not exceed
8.80 to 1.0 at November 30, 1998; or 7.25 to 1.0 at December 31, 1998
and thereafter.
If Borrowers violate these covenant requirements, then such violation
shall be a new default under the Loan Documents and this Forbearance Agreement
and, therefore, a breach of this Forbearance Agreement.
4. INTEREST. The Credit Agreement is hereby amended to provide that,
notwithstanding anything to the contrary in the Loan Documents, prior to the
occurrence of a default or Event of Default under this Agreement or any of the
other Loan Documents (excluding the Existing Defaults during the Forbearance
Period, but including a worsening of such Existing Defaults) (a) all Obligations
(other than the Obligations under the Charge Card Authorization the Instaloans,
and the 1995 Mortgage Note) shall bear interest computed on the basis of the
actual number of days elapsed in a year of 360 days at the rate of 1% per annum
above the rate announced from time to time by NBD as its prime rate, which may
not be the lowest rate charged by NBD to any of its customers and (b) the 1995
Mortgage Note shall bear interest at the rate of 8.7% per annum (each, the
"Applicable Rate"). After the occurrence of an Event of Default or default under
this Agreement or the Loan Documents (excluding the Existing Defaults during the
Forbearance Period, but including a worsening of such Existing Defaults), all of
such Obligations at NBD's sole discretion shall bear interest at the rate of 3%
per annum above the Applicable Rate (the "Default Rate"). Notwithstanding the
foregoing, in
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no event whatsoever shall the rate of interest charged under this Agreement or
any agreement or note executed in connection herewith or referred to or
incorporated herein exceed the highest rate permitted by applicable law. The
fact that NBD is entitled to receive a higher rate of interest upon default is
to compensate NBD for increased administrative and monitoring costs and shall
not in any manner be deemed to have waived or modified any of NBD's rights in
connection with the occurrence of a default or any Event of Default under this
Agreement or any other Loan Document.
5. AMENDED AND RESTATED NOTES. The Revolving Note is hereby amended,
restated and replaced in its entirety by a Master Demand Business Loan Note, in
the form of Exhibit A attached hereto (the "Amended Line of Credit Note"). The
Equipment Note is amended and restated and replaced in its entirety by an
Amended and Restated Equipment Note in the form of Exhibit B attached hereto
(the "Amended Equipment Note"). The 1997 Mortgage Note is amended, restated and
replaced in its entirety by a Second Amended and Restated Mortgage Note in the
form of Exhibit C attached hereto (the "Amended 1997 Mortgage Note"). The 1995
Mortgage Note is hereby amended, restated and replaced in its entirety by an
Amended and Restated Mortgage Note in the form of Exhibit D attached hereto (the
"Amended 1995 Mortgage Note"). For convenience, the Amended Line of Credit Note,
the Amended Equipment Note, the Amended 1997 Mortgage Note, and the Amended 1995
Mortgage Note are referred to herein, collectively, as the "Amended Notes." Any
reference in any other document or instrument (including, but not limited to,
the Credit Agreement) to the Revolving Note, the Equipment Note, the 1997
Mortgage Note, and the 1995 Mortgage Note shall constitute a reference to the
Amended Notes. The Amended Notes are in substitution and exchange for the Notes
and shall not in any circumstances be deemed a novation or to have paid,
terminated, extinguished or discharged Borrowers' indebtedness evidenced by such
Notes, all of which indebtedness shall continue under, and be evidenced and
governed by, the Amended Notes.
ANYTHING TO THE CONTRARY NOTWITHSTANDING IN ANY NOTE OR ANY
OTHER LOAN DOCUMENT, ALL OBLIGATIONS OF BORROWERS TO NBD, INCLUDING ALL
OBLIGATIONS UNDER THE AMENDED NOTES, BORROWERS' OBLIGATIONS TO NBD UNDER THE
INSTALOAN, AND BORROWER'S OBLIGATIONS TO NBD UNDER THE CHARGE CARD AUTHORIZATION
SHALL BE DUE AND PAYABLE IN FULL UPON THE EARLIER OF (A) DEMAND (B) A DEFAULT OR
EVENT OF DEFAULT UNDER THE LOAN DOCUMENTS OR THE FORBEARANCE AGREEMENT (OTHER
THAN THE EXISTING DEFAULTS), OR (C) THE EXPIRATION OF THE FORBEARANCE PERIOD.
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6. BORROWING BASE.
(a) The Parties acknowledge and agree that in the past, certain
accounts receivable and inventory have been included in the Borrowing Base
Formula which accounts receivable and inventory did not qualify as "Eligible
Accounts Receivable" or "Eligible Inventory Receivable" under the Credit
Agreement as described on Exhibit E-1. For convenience, all accounts receivable
and inventory that do not meet the definition of "Eligible Accounts Receivable"
and "Eligible Inventory" under the Credit Agreement, as amended hereby,
including, without limitations, those categories of receivables and inventory
described in Exhibit E-2, are referred to herein, respectively, as "Ineligible
Receivables" and "Ineligible Inventory." Without limiting the discretion granted
to NBD under the Credit Agreement to reasonably deem at any time for any reason
that certain inventory or accounts receivable are ineligible, the Parties
acknowledge and agree that the items set forth on Exhibit E-2 shall be
Ineligible Accounts Receivable and Ineligible Inventory, notwithstanding that
certain of such receivables or inventory may have been included in the Borrowing
Base in the past.
(b) The Parties acknowledge and agree that in the past, certain
advances may have been made to Borrowers, even though Borrowers did not have
availability under the Borrowing Base Formula set forth in the Loan Agreement
("Out-of-Formula Advances"). The Parties acknowledge and agree that
notwithstanding that certain Out-of-Formula Advances may have been made in the
past, NBD had and continues to have no obligation to make any Out-of-Formula
Advances and any Out-of-Formula Advance permitted by NBD in the future shall be
in NBD's sole and absolute discretion and shall not give rise to a right or
expectation on the part of the Parties' to similar Out-of-Formula Advances at
any time in the future. The Parties acknowledge and agree that it is NBD's
current intention not to make any Out-of-Formula Advances.
7. YEAR 2000 ISSUES. Borrowers will take all actions reasonably
necessary to assure that Year 2000 Issues will not have a material adverse
effect on the business, operations or financial condition of Borrowers. Upon
NBD's request, Borrowers will provide NBD with a description of their plan to
address Year 2000 Issues, including updates and progress reports. Borrowers will
advise NBD of any reasonably anticipated material adverse effect on the
business, operations or financial condition of Borrowers as a result of Year
2000 Issues.
8. COMPENSATION. So long as any of the Obligations remain outstanding,
no loans, distributions, advances or other payments of any kind or nature shall
be made by any Borrower to any officers or any member of their immediate
families, other than the following:
(i) Reasonable cash compensation in an amount no
greater than the amount currently being paid to each such individual as
of the date hereof, provided that such cash compensation is paid for
services actually rendered by the applicable individual to Borrower;
(ii) Reasonable reimbursement for business expenses
incurred in the ordinary course of business; and
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(iii) Employee benefits provided in the ordinary
course of business to other employees of Borrower consistent with past
practices.
9. TRANSACTIONS WITH AFFILIATES. Without NBD's prior written consent,
which consent may be withheld at NBD's sole discretion, until all of the
Obligations are paid in full, no advances will be made by any Borrower to any
entity or individual affiliated with any Borrower, whether now existing or
formed in the future, except with respect to inter-company transactions
consistent with practice, and except for amounts to shareholders and members of
their immediate families specifically permitted by Paragraph 8 above.
10. NBD'S CONSULTANT. The Parties acknowledge that counsel to NBD may
hire a financial consultant (the "Consultant") to assist such counsel in its
evaluation of Borrowers' financial condition and Borrowers' relationship with
NBD. The Parties shall provide the Consultant access to Borrowers' facilities,
books and records and shall cooperate in good faith with the Consultant and
shall request Borrowers' outside accountant (the "CPA") to cooperate in good
faith in connection with the provision of all information requested by the
Consultant (including copies of all information in the CPA's possession relating
to the Parties). All information provided to the Consultant shall be held in
confidence and used only by NBD and its agents in connection with transactions
with the Parties.
11. ADDITIONAL COVENANTS. In addition to the covenants already
contained in the Loan Documents or elsewhere in this Agreement, Borrowers agree
that the Loan Documents are hereby amended to include the following covenants:
(a) Except as specifically provided herein, Borrowers shall
not make any loan or advance to any of their respective shareholders or
affiliates without the prior written consent of NBD;
(b) Borrowers shall not incur any obligations for loans or
leases without the prior written consent of NBD;
(c) Borrowers shall permit NBD or its agents to perform audits
of the Collateral whenever deemed necessary by NBD. Notwithstanding the
foregoing, NBD's current intention is to conduct audits no more frequently than
quarterly. Borrowers shall compensate NBD for those audits in accordance with
NBD's schedule of fees, as may be amended from time to time;
(d) Borrowers shall not permit any tax or other liens to be
placed on any of their property;
(e) The Parties shall immediately notify NBD in writing of any
legal proceeding brought by or against any Borrower or any Guarantor.
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(f) Borrowers shall not permit their EBITD to be less than
$350,000 for the month ended November 30, 1998, and $1,100,000 for the month
ended December 31, 1998 and for each month thereafter.
12. ADDITIONAL REPORTING. In addition to any reports or information
required by the Loan Documents or this Agreement (which must be provided
timely), or that NBD may hereafter request, each Party must provide NBD with:
(a) Within one day of receipt, copies of written notices of
default received from other creditors;
(b) Within one day of gaining knowledge thereof, any adverse
information regarding any Party;
(c) Daily, a Borrowing Base Certificate in a form and detail
reasonably acceptable to NBD, executed by an authorized agent of the Loan
Parties and completed and sent by facsimile with the originals to follow by U.S.
Mail. The current form utilized by Borrowers is acceptable so long as Borrowers
add sections detailing the prior day's loan balance, requested advance or
paydown, the resulting loan balance and the excess availability.
(d) As soon as available and in any event within 20 days after
the end of each calendar month, a report listing the accounts receivable aging,
accounts payable aging and a perpetual inventory report summarized by commodity
code of Borrowers, in a form and detail reasonably acceptable to Bank, executed
by an authorized agent of Borrowers and completed as of the end of the most
recently ended month;
(e) Within 20 days after the end of the first eleven months of
each year and by January 31 for the month of December, a balance sheet as of the
end of such month and statements of income, retained earnings and cash flows
from the beginning of the fiscal year to the end of such month, certified as
correct by one of Borrowers' authorized agents, together with a calculation
showing the actual cash flows for such month as compared to the cash flows for
such month set forth in the Projections;
(f) Monthly by the 15th of each month, an updated list of all
patents, patent applications, copyrights, trademarks, or trade names of
Borrowers; and
(g) Such other documents, certificates, financial reports or
statements as Bank may reasonably request.
13. DEFAULTS. In addition to any other Events of Default or defaults
provided for in the Loan Documents, and without waiver of the demand and
discretionary provisions of the Loan Documents, the occurrence of any of the
following constitutes an Event of Default and a default under this Agreement
(and each Loan Document):
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(a) If any Party fails to comply with any term or condition in
this Agreement (or any agreement referred to or incorporated herein) or the Loan
Documents (other than the Existing Defaults);
(b) If any material adverse change occurs in any Borrower's
financial condition or business prospects;
(c) If any lender, supplier, creditor, lessor, bond holder or
representative thereof (collectively, "Creditor") of any Party shall (i) obtain
a judgment against any Party or (ii) receives from any Borrower any prepayments
of obligations;
(d) If any representation or warranty made by any Party in
this Agreement or in connection with the negotiation hereof is untrue as of the
date made;
(e) If attachment by way of seizure, xxxx, xxxx or otherwise
of any assets of any one or more of the Parties;
(f) If the filing of any notice of lien, levy or assessment by
any government, department or agency or the fact that any taxes or debts owing
(including the Unpaid Taxes) become a lien or encumbrance upon any assets of any
of the Parties; and
(g) If any Borrower fails to pay or cause to be paid when due
any and all taxes with respect to such Borrower's business, including, without
limitation, payroll taxes and real property taxes, other than the Unpaid Taxes.
(h) If any Borrower defaults under any agreement, document or
instrument by and among such Borrower and NBD or any of its affiliates, or by
and among such Borrower and any other bank, financial institution, lending
agency, or leasing agency who has provided financing of any nature to such
Borrower, including without limitation, any Junior Creditor, except for those
defaults listed on Exhibit F attached hereto (the "Textron Existing Defaults")
under the Borrowers' loan documents with such Junior Creditors.
(i) If any Junior Creditor accelerates the obligations owing
to it by any of the Parties, or otherwise attempt to enforce its rights under
any of their loan documents with any of the Parties, on account of the Textron
Existing Defaults, or otherwise.
14. WRITTEN DOCUMENTS CONTROL. The Parties acknowledge and agree that
in the past, certain terms and provisions of the Loan Documents may not have
been complied with and may have been temporarily waived or modified through
certain temporary oral agreements or waivers among the Parties and NBD. Each
Party acknowledges and agrees that any and all of such oral agreements or
waivers are hereby terminated and each Party's duties, obligations, rights and
responsibilities with respect to the Loan Documents and this Agreement shall be
governed solely in accordance with the terms and conditions of the written Loan
Documents between the Parties and NBD, and this Agreement, together with all
written supplements or
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amendments, thereto or hereto, but exclusive of all present or future oral
agreements between NBD and any one or more of the Parties.
15. BANK ACCOUNTS. The Parties represent and warrant to NBD that all of
the financial and bank accounts of Borrowers of any nature, including, without
limitation, checking and savings accounts, time deposit accounts and operating
and other deposit accounts and money market and other investment accounts
(collectively, the "Bank Accounts"), other than those listed on Exhibit G
attached hereto (the "Excluded Accounts") are maintained with NBD, and Borrowers
maintain no such accounts with any other bank, financial institution or other
third party (other than the Excluded Accounts). The Parties acknowledge and
agree that Borrowers shall continue to maintain all of such Bank Accounts (other
than the Excluded Accounts) with NBD, and all revenues of Borrowers will be
deposited in an NBD Bank Account immediately upon receipt.
16. NO OVERDRAFTS. The Parties acknowledge that, notwithstanding that
NBD may have honored overdrafts in the past, hereafter, neither NBD nor any of
its affiliates are obligated, under any circumstances, to honor any checks or
other items presented to NBD or such affiliates for payment for which there are
insufficient available funds in any Borrower's accounts and NBD or such
affiliates, as the case may be, may return any such items so presented.
17. AUTHORITY TO DEBIT ACCOUNTS. If any payment called for by the Loan
Documents, this Agreement or any other agreement referred to or incorporated
herein, or any other present or future agreements between NBD or any of its
affiliates on the one hand, or any party on the other hand, is not paid when and
as called for under the terms of such agreement, then NBD or any of its
affiliates may debit any one or more of any Party's accounts at NBD or any of
its affiliates for such amount. The fact that NBD or any of its affiliates has
debited any such account will in no way waive or diminish any default for the
failure to make such payment when and as due.
18. NO FURTHER FORBEARANCE IMPLIED. Each Party acknowledges that NBD
has no obligation to continue making Loans or extend the term of the Forbearance
Period or forbear from enforcing its rights and remedies after the Forbearance
Period, and nothing contained herein or otherwise is intended to be or is a
promise or agreement to continue making Loans, or to extend the term of the
Forbearance Period beyond the expiration thereof. Furthermore, no future
agreement by NBD to continue making Loans, or to extend the term of the
Forbearance Period beyond the expiration thereof, or any other agreement, is
valid or enforceable unless it is contained in a written agreement signed by
NBD.
19. FORBEARANCE FEE. In consideration for NBD agreeing to forbear from
exercising its rights and remedies under the Loan Documents with respect to the
Existing Defaults as provided herein, Borrowers shall pay to NBD a forbearance
fee in the amount of $75,000 simultaneously with the execution of this
Agreement, plus $25,000 the first day of each month until all Obligations are
paid in full, collectively, the "Forbearance Fee."
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20. EXPENSES, FEES AND COSTS; INDEMNIFICATION
(a) Each Party, jointly and severally, shall be responsible
for the payment of all fees and out-of-pocket disbursements incurred by NBD,
including fees of counsel and court costs, in any way arising from or in
connection with this Agreement, any Collateral, any Loan Document, any
Obligations, or the business relationship between NBD on the one hand and any
one or more of the Parties on the other hand, including, without limitation: (1)
Audit Fees (as defined in Paragraph 21 below); (2) all fees and expenses
(including recording fees and insurance policy fees) of NBD and counsel for NBD
for the preparation, examination, approval, negotiation, execution and delivery
of, or the closing of any of the transactions contemplated by, this Agreement or
any of the Loan Documents; (3) all fees and out-of-pocket disbursements incurred
by NBD, including attorneys' fees, in any way arising from or in connection with
any action taken by NBD to monitor, advise, administer, enforce or collect any
of the Obligations (including under this Agreement, the Guarantor Loan
Documents, and any other Loan Document, or otherwise), or any other obligations
of any one or more of the Parties, whether joint, joint and several, or several,
under this Agreement, any Loan Document, any other existing or future document
or agreement, or arising from or relating to the business relationship between
NBD, on the one hand, and any one or more of the Parties, on the other hand, or
otherwise securing any of the Obligations, including any actions to lift the
automatic stay or to otherwise in any way monitor or participate in any
bankruptcy, reorganization or insolvency proceeding of any one or more of the
Parties; (4) all expenses and fees (including attorneys' fees) incurred in
relation to, in connection with, in defense of or in prosecution of any
litigation instituted by any one or more of the Parties, NBD, or any third
party, against or involving NBD arising from, relating to, or in connection with
any of the Obligations, or any one or more of the Parties' other obligations,
this Agreement, any Collateral, any Loan Document, or the business relationship
between NBD, on the one hand, and any one or more of the Parties, on the other
hand, including any so-called "lender liability" action, any claim and delivery
or other action for possession of, or foreclosure on, any of the Collateral,
post-judgment enforcement of any rights or remedies including enforcement of any
judgments, and prosecution of any appeals (whether discretionary or as of right
and whether in connection with pre-judgment or post-judgment matters); (5) all
costs, expenses, and fees incurred by NBD or its agents in connection with
appraisals and reappraisals of all or any of the Collateral (and each Party must
fully cooperate with such appraisers and make its property available for
appraisal in connection with as many appraisals as NBD may request); (6) all
costs, expenses, and fees incurred by NBD or its counsel in connection with
consultants, including, without limitation, the Consultant, expert witnesses, or
other professionals retained by NBD or its counsel, to assist, advise, or give
testimony with respect to any matter relating to the Collateral, the
Obligations, the Loan Documents, the Guaranty, or the business relationship
between NBD, on the one hand, and any one or more of the Parties, on the other
hand (and each Party must fully cooperate with such Consultant, expert witness
or other professional and shall make its premises, books and records, accounting
systems, computer systems and other media for the recordation of information
available to such persons); and (7) all costs, expenses and fees incurred by NBD
in connection with any environmental investigations including, but not limited
to, Xxxxx X, Xxxxx XX xxx
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Xxxxx XXX environmental audits (and each Party agrees that NBD or its agents may
enter on its premises at any time to conduct such environmental investigations).
Each Party's agreement, jointly and severally, to be responsible for NBD's
attorneys' fees and costs applies regardless of whether or not NBD prevails in
whole or in part in any action, proceeding, litigation, or otherwise, and
regardless of the nature of any action or litigation or the theories or bases of
recovery or defense. Each Party, jointly and severally, agrees to indemnify NBD
for all Claims (as hereinafter defined) which may be imposed on, incurred by, or
asserted against NBD in connection with this Agreement, any Loan Document, or
the transactions contemplated hereby or thereby, or the business relationship
between NBD, on the one hand, and any one or more of the Parties, on the other
hand.
(b) All of the foregoing costs, expenses, reimbursement
obligations, and indemnification obligations are part of the Obligations and are
secured by all of the Collateral.
(c) "Claims" means any demand, claim, action or cause of
action, damage, liability, loss, cost, debt, expense, obligation, tax,
assessment, charge, lawsuit, contract, agreement, undertaking or deficiency, of
any kind or nature, whether known or unknown, fixed, actual, accrued or
contingent, liquidated or unliquidated (including interest, penalties,
attorneys' fees and other costs and expenses incident to proceedings or
investigations relating to any of the foregoing or the defense of any of the
foregoing), whether or not litigation has commenced.
21. VERIFICATION OF ACCOUNTS/AUDITS. Attached hereto as Exhibit H is a
true and complete list, including accurate addresses and contact persons of all
of each Borrower's customers and account debtors. The Parties agree that, NBD,
through its employees or authorized agents, is permitted to send a letter to and
otherwise contact each Borrower's customers and account debtors to verify
account receivable balances. In addition, NBD shall be permitted full and
complete access to each Borrower's facilities, and books and records to conduct
audits as often as NBD reasonably desires. Notwithstanding the foregoing, NBD's
current intention is to conduct audits no more frequently than quarterly. The
cost of such audits is part of the Obligations, is secured by all Collateral,
and must be paid by Borrowers within ten (10) days of receipt of an invoice
therefor (the "Audit Fees"). The Audit Fees are in addition to all other
interest, fees, costs, and expenses provided for in the Loan Documents or this
Agreement.
22. OTHER DOCUMENTS. Each Party must execute, or cause to be executed,
any documents requested by NBD to carry out the intent of or to implement this
Agreement, the Guarantor Loan Documents, or any other Loan Document.
23. CROSS DEFAULT/CROSS COLLATERALIZATION/REMEDIES. An Event of Default
or a default under this Agreement (or any agreement referred to or incorporated
herein) is an Event of Default or a default under each document and agreement
comprising the Loan Documents (including the Guarantor Loan Documents), and an
Event of Default or a default under any document or agreement comprising the
Loan Documents (including the Guarantor Loan Documents) is an Event of Default
or a default under the terms of this Agreement (and all
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agreements referred to or incorporated herein). Immediately upon the occurrence
of an Event of Default or a default under this Agreement, any Loan Document or
any document executed in connection herewith or referenced herein, and without
notice or an opportunity to cure such Event of Default or default, NBD has the
right to exercise any remedies provided in this Agreement, the Loan Documents,
and under applicable law, and the Forbearance Period will automatically expire
at NBD's election, without further notice and, at NBD's election but without
notice, all of each Party's obligations to NBD (including the Obligations and
the Guarantors' obligations under the Guarantor Loan Documents) will be
immediately due and payable. In any event, from and after the earlier of
expiration of the Forbearance Period or the occurrence of an Event of Default or
a default under this Agreement or any Loan Document, NBD may immediately take
action to enforce its rights and remedies under the Loan Documents (including
enforcement action on account of the Existing Defaults), this Agreement, and
applicable law, including collecting the Obligations and foreclosing on the
Collateral. Each of the Parties acknowledges and agrees that it was and remains
each Party's intent that a default by any Party under any of its Obligations to
NBD shall be deemed to be a default under each document or agreement evidencing
all of the other Parties' Obligations to NBD, and all Collateral pledged by a
Party to secure that Party's Obligations to NBD also secures all of the other
Parties' Obligations to NBD. Each Party agrees to execute and deliver to NBD any
security agreements, financing statements or other documents NBD may deem
necessary or desirable to effectuate the above-referenced provisions. ABSENT THE
PRIOR OCCURRENCE OF AN EVENT OF DEFAULT, DEFAULT OR PRIOR DEMAND FOR PAYMENT,
ALL OBLIGATIONS, AND GUARANTORS' OBLIGATIONS UNDER THE GUARANTOR LOAN DOCUMENTS
ARE DUE AND PAYABLE IN FULL AT THE EXPIRATION OF THE FORBEARANCE PERIOD.
24. LOAN DOCUMENTS, GUARANTIES AND MORTGAGES CONTINUE. Except as
expressly modified and amended by the terms of this Agreement, all other terms
and conditions of the Loan Documents (including the Guarantor Loan Documents and
the Mortgages) remain in full force and effect and are hereby ratified,
confirmed, and approved. If there is an express conflict between the terms of
this Agreement and the terms of the Loan Documents, the terms of this Agreement
govern and control. Without limiting the generality of the foregoing, (a) each
Guarantor acknowledges and agrees that the Guaranties extend to cover all of the
Obligations of Borrowers to NBD, including without limitation, all of such
Obligations under this Agreement and under the Loan Documents, and (b) each
Party acknowledges and agrees that the Mortgages extend to cover all of
Borrowers' Obligations to NBD, including without limitation, all of such
Obligations under this Agreement and under the Loan Documents.
25. RESERVATION OF RIGHTS/NO WAIVERS. This Agreement grants a limited
forbearance until the expiration of the Forbearance Period on the terms and
conditions set forth in this Agreement. Except for such forbearance through the
expiration of the Forbearance Period, all of NBD's rights and remedies against
each Party and the Collateral are expressly reserved, including all rights and
remedies resulting from, or arising in connection with, the Existing Defaults.
Likewise, nothing herein is a waiver of any Existing Defaults, or other defaults
existing as of the date hereof, or an agreement to consent to further worsening
of such
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Existing Defaults, or new Events of Default or defaults, or in any way
prejudices NBD's rights and remedies under the Loan Documents (including the
Guarantor Loan Documents), or applicable law. Further, NBD has the right to
waive any terms, provisions, or conditions in this Agreement or the Loan
Documents in its sole discretion, and any such waiver does not prejudice, waive,
or reduce any other right or remedy which NBD may have against any one or more
of the Parties. No waiver of rights or any condition of this Agreement, the Loan
Documents, or any other agreement by NBD is effective unless the same is
contained in a writing signed by an authorized agent of NBD.
26. CREDIT INQUIRIES. In the event customers, buyers, investors,
potential alternative financing sources, or other parties ask NBD about the
current lending relationship among NBD and any one or more of the Parties, each
Party agrees that NBD may refer such inquiries to Medar.
27. ENTIRE AGREEMENT, ETC.
(a) This Agreement and the Exhibits hereto constitute the
Parties' and NBD's entire understanding with respect to the subject matter
hereof. Modifications or amendments to this Agreement must be in writing and
signed by the party to be charged in order to be effective. This Agreement is
governed by the internal laws of the State of Michigan (without regard to
conflicts of law principles). This Agreement is binding on each Party and its
respective successors, assigns, heirs, and personal representatives and shall
inure to NBD's benefit and its successors and assigns. If any provision of this
Agreement conflicts with any applicable statute or law, or is otherwise
unenforceable, such offending provision is null and void only to the extent of
such conflict or unenforceability, and is deemed separate from and does not
invalidate any other provision of this Agreement.
(b) This Agreement is being entered into among competent
persons who are experienced in business and represented by counsel (or who have
had the opportunity to be represented by counsel), and has been reviewed by the
Parties and their counsel, if any. Therefore, any ambiguous language in this
Agreement will not necessarily be construed against any particular party as the
drafter of such language.
(c) This Agreement may be executed in any number of
counterparts with the same effect as if all signatories had signed the same
document. All counterparts must be construed together to constitute one
instrument. Facsimile copies of signatures are to be treated as original
signatures for all purposes.
(d) References in the Loan Documents and all other documents
executed in connection with the Loan Documents (as each of the foregoing is
amended hereby) to the Loan Documents mean the Loan Documents as amended by this
Agreement.
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(e) The term "including" means including, without limitation,
and the term "includes" means includes, without limitation.
(f) All headings are inserted for convenience only and do not
affect the construction or interpretation of this Agreement.
28. ADDITIONAL REPRESENTATIONS. Each Party represents and warrants to
NBD that:
(a) Each Borrower's execution, delivery, and performance of
this Agreement and all agreements and documents delivered in connection herewith
by such Borrower, have been duly authorized by all necessary corporate action
and do not and will not require any consent or approval of such Borrower's
stockholders, violate any provision of any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award presently in effect having
applicability to such Borrower or it articles of incorporation or bylaws, or
result in a breach of or constitute a default under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which such
Borrower is a party or by which it or its properties may be bound or affected.
(b) No authorization, consent, approval, license, exemption of
or filing a registration with any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, is or will be
necessary to the valid execution, delivery or performance by any Borrower of
this Agreement and all agreements and documents delivered in connection with
this Agreement.
(c) This Agreement and all agreements and documents delivered
pursuant hereto by any one or more of the Parties are the legal, valid and
binding obligations of each such Party enforceable against each such Party in
accordance with the terms thereof.
(d) After giving effect to the amendments contained herein and
effected pursuant hereto, all representations and warranties contained in the
Loan Documents are true and correct on and as of the date hereof with the same
force and effect as if made on and as of the date hereof.
(e) Except for the Existing Defaults, each Party has duly and
properly performed, complied with and observed each of its covenants,
agreements, and obligations contained in the Loan Documents.
(f) Borrowers' compiled financial statement for the fiscal
year ended December 31, 1997, and Borrowers' interim financial statements for
the nine-month period ended September 30, 1998, copies of which have been
furnished to NBD, fairly present Borrowers' financial condition at such dates
and the results of Borrowers' operations for the periods indicated, all
substantially in accordance with generally accepted accounting principles
applied on a consistent basis (except for absence of footnotes in interim
statements).
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(g) No Party has assigned any claim, set off or defense to any
individual or entity.
(h) This Agreement and all of the Exhibits and other written
material delivered by any one or more of the Parties to NBD in connection with
the transactions contemplated hereby do not contain any statement that is false
or misleading with respect to any material fact and do not omit to state a
material fact necessary in order to make the statements therein not false or
misleading. There is no additional fact of which any Party is aware that has not
been disclosed in writing to NBD that materially affects adversely or, so far as
each Party can reasonably foresee, will materially affect adversely, any Party's
financial condition or business prospects.
(i) All Parties executing this Agreement in a representative
capacity warrant that they have authority to execute this Agreement and legally
bind the entity they represent.
29. SURVIVAL; RELIANCE. All agreements, representations and warranties
made in this Agreement (and all agreements referred to or incorporated herein)
survive the execution of this Agreement (and all documents and agreements
referred to or incorporated herein). Notwithstanding anything in this Agreement
(or any documents or agreements referred to or incorporated herein) to the
contrary, no investigation or inquiry by NBD (including by its agents) with
respect to any matter which is the subject of any representation, warranty,
covenant or other agreement set forth herein or therein is intended, nor shall
it be interpreted, to limit, diminish or otherwise affect the full scope and
effect of any such representation, warranty, covenant or other agreement. All
terms, covenants, agreements, representations and warranties of each Party made
herein (or in any documents or agreements referred to or incorporated herein),
or in any certificate or other document delivered or to be delivered pursuant
hereto, are deemed to be material and to have been relied upon by NBD,
notwithstanding any investigation heretofore or hereafter made by NBD or its
agents.
30. NOTICES. Any notice or other communication required or permitted to
be given under this Agreement or any of the Loan Documents must be in writing
and delivered personally, telegraphed, telecopied or telexed, or mailed (by
certified or registered mail or by recognized overnight courier), postage
prepaid, and is deemed given when so delivered personally, telegraphed or
telexed, or if mailed, one day after the date of mailing, addressed as follows
(or to any another address as to which any party so advises the other parties in
writing):
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(a) If to Borrowers
or Guarantors: Medar, Inc.
00000 Xxxxx Xxxxx Xxx.
Xxxxxxxxxx Xxxxx, XX 00000-0000
Telecopy (000) 000-0000
Attn: Xxxxxxx X. Current
With a copy to: Warren, Cameron, Xxxxx & Xxxxxxxx, P.C.
0000 Xxxxxxx Xxxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxxxxxxx X. Xxxxxxx
(c) If to NBD: NBD Bank
000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, III
With a copy to: Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attn: Xxxxx X. Xxxxx
31. DISCRETIONARY LOANS; DEMAND OBLIGATIONS. Notwithstanding any
provisions of this Agreement, it is understood and agreed that NBD is at no time
obligated to make any Loan, despite compliance with any express conditions
precedent thereto, and NBD may at any time make demand for payment of the
Obligations, notwithstanding that there may then exist no Event of Default or
default. ABSENT PRIOR DEMAND BY NBD, OR A WRITTEN AGREEMENT SIGNED BY NBD TO THE
CONTRARY, ALL OF THE OBLIGATIONS SHALL BE DUE AND PAYABLE IN FULL ON THE EARLIER
OF (A) A DEFAULT UNDER THE LOAN DOCUMENTS, INCLUDING THIS AGREEMENT, OR (B) THE
EXPIRATION OF THE FORBEARANCE PERIOD.
32. IMPAIRMENT OF COLLATERAL. The execution and delivery of this
Agreement (and all agreements and documents referred to herein) does not impair
or affect any other security (by endorsement or otherwise) for the Obligations,
or any one or more of the Parties' other obligations to NBD. No security taken
before or after as security for the Obligations impairs or affects this
Agreement (or any agreement or document referred to herein). All present and
future additional security is to be considered as cumulative security.
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33. TIME IS OF THE ESSENCE. Each Party acknowledges and agrees that
time is of the essence as to each and every term and provision of this Agreement
and each Loan Document.
34. ADVERSE EVENTS. Promptly upon gaining knowledge thereof or at such
time as any Party should have known thereof, each Party must inform NBD of the
occurrence of any Event of Default, or default, or any event which with the
lapse of time or service of notice or both would constitute an Event of Default
or default under this Agreement or any of the Loan Documents, or of any other
occurrence which has or could reasonably be expected to have a materially
adverse effect on any Party's business, properties, or financial condition or
upon any Party's ability to comply with its obligations under this Agreement or
the Loan Documents (including the Guarantor Loan Documents).
35. NON-WAIVER. No failure or delay on the part of NBD in the exercise
of any power or right, and no course of dealing between any one or more of the
Parties or any Personal Guarantor and NBD, operates as a waiver of such power or
right, nor shall any single or partial exercise of any power or right preclude
other or further exercise thereof or the exercise of any other power or right.
The remedies provided for herein are cumulative and not exclusive of any
remedies which may be available to NBD at law or in equity. No notice to or
demand on any Party not required hereunder or under the Loan Documents entitles
any such Party to any other or further notice or demand in similar or other
circumstances, or waives NBD's right to any other or further action in any
circumstances without notice or demand. Any waiver of any provision of this
Agreement or the Loan Documents and any consent to any departure by any one or
more of the Parties from the terms of any provision of this Agreement or the
Loan Documents, is effective only if in writing signed by an authorized officer
of NBD, and only in the specific instance and for the specific purpose for which
given.
36. NO OTHER PROMISES OR INDUCEMENTS. There are no promises or
inducements which have been made to any signatory hereto to cause such signatory
to enter into this Agreement other than those which are set forth in this
Agreement.
37. ADDITIONAL AGREEMENTS. Prior to or simultaneously with the
execution and delivery of this Agreement (or such other date as is indicated
below), the Parties shall cause to be executed and delivered to NBD the
following documents:
(a) The Amended Notes executed by Borrowers or Medar as
applicable, (Exhibits A-D);
(b) The description of Eligible Receivables and Eligible
Inventory attached hereto as Exhibit E-1;
(c) Borrowers' Ineligible Receivables and Inventory attached
hereto as Exhibit E-2;
(d) Textron Existing Defaults (Exhibit F);
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(e) Excluded Accounts of Borrowers (Exhibit G);
(f) List of Borrowers' Customers and Account Debtors attached
hereto as Exhibit H;
(g) Certificate of Resolutions in the form attached as Exhibit
I hereto, executed by Borrowers;
(h) A UCC Financing Statement and UCC Fixture Filing in the
forms of Exhibit J attached hereto;
(i) An amendment to the Patent Assignment in the form of
Exhibit L updating the list of patents attached hereto;
(j) Written evidence of insurance coverage with respect to
foreign accounts receivables;
(k) A First Amendment to Mortgage for the Premises in the
Forms of Exhibits M-1 and M-2 attached hereto; and
(l) Such other financing statements, resolutions, searches and
other documents and agreements reasonably required by NBD, to effectuate the
transactions contemplated by this Agreement.
38. SUBORDINATION AGREEMENTS. ANYTHING CONTAINED IN THIS AGREEMENT OR
IN ANY OTHER AGREEMENT TO THE CONTRARY NOTWITHSTANDING, NOTHING CONTAINED IN
THIS AGREEMENT OR IN ANY OTHER AGREEMENT RESTRICTS OR PROHIBITS NBD'S RIGHT TO
BLOCK, STOP OR PROHIBIT PAYMENTS TO ANY SUBORDINATED CREDITOR(S) ON ACCOUNT OF
THE EXISTING DEFAULTS OR OTHERWISE. Without limiting the generality of the
previous sentence and notwithstanding any provision of any Subordination
Agreement to the contrary, Guarantors agree jointly and severally that all
amounts owing by any Borrower to any of them, however evidenced, present or
future (the "Subordinated Indebtedness") are subordinated to all of the
Obligations, AND HEREBY WAIVE ALL RIGHTS TO RECEIVE PAYMENTS ON OR RELATED TO
THE SUBORDINATED INDEBTEDNESS UNTIL SUCH TIME AS NBD HAS RECEIVED PAYMENT IN
FULL WITH RESPECT TO THE OBLIGATIONS.
39. PAYMENTS TO OFFICERS. Effective immediately, all dividends,
distributions and other payments to officers, present or future, whether by way
of stock redemption, payments on preferred stock, or deferred compensation,
principal or interest, shall cease in their entirety, except for those payments
specifically permitted by this Agreement, other than in connection with a 401K
Plan.
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40. STATUTE OF FRAUDS. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. ALL PRIOR AND
CONTEMPORANEOUS ORAL AGREEMENTS, IF ANY, BETWEEN NBD, ON THE ONE HAND, AND ANY
ONE OR MORE OF THE PARTIES, ON THE OTHER HAND, ARE MERGED INTO THIS AGREEMENT
AND DO NOT SURVIVE THE EXECUTION OF THIS AGREEMENT.
41. RELEASE. AS OF THE DATE HEREOF EACH PARTY REPRESENTS AND WARRANTS
THAT HE, SHE OR IT IS AWARE OF, AND POSSESSES, NO CLAIMS OR CAUSES OF ACTION
AGAINST NBD. NOTWITHSTANDING THIS REPRESENTATION AND AS FURTHER CONSIDERATION
FOR THE AGREEMENTS AND UNDERSTANDINGS HEREIN, EACH PARTY INDIVIDUALLY, JOINTLY,
SEVERALLY, AND JOINTLY AND SEVERALLY, IN EVERY CAPACITY, INCLUDING BUT NOT
LIMITED TO, AS SHAREHOLDERS, OFFICERS, PARTNERS, DIRECTORS, INVESTORS, OR
CREDITORS OF ANY ONE OR MORE OF THE PARTIES, EACH OF THEIR AGENTS, EXECUTORS,
SUCCESSORS AND ASSIGNS, HEREBY RELEASES NBD, ITS OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, ATTORNEYS, AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS FROM ANY
LIABILITY, CLAIM, RIGHT OR CAUSE OF ACTION WHICH NOW EXISTS, OR HEREAFTER
ARISES, WHETHER KNOWN OR UNKNOWN, ARISING FROM OR IN ANY WAY RELATED TO FACTS IN
EXISTENCE AS OF THE DATE HEREOF. BY WAY OF EXAMPLE AND NOT LIMITATION, THE
FOREGOING INCLUDES ANY CLAIMS IN ANY WAY RELATED TO ACTIONS TAKEN OR OMITTED TO
BE TAKEN BY NBD UNDER THE LOAN DOCUMENTS, THE BUSINESS RELATIONSHIP WITH NBD AND
ALL OTHER OBLIGATIONS OF ANY NATURE OR KIND OF ANY ONE OR MORE OF THE PARTIES,
ANY ORAL AGREEMENTS OR UNDERSTANDINGS (ACTUAL OR ALLEGED), ANY BANKING
RELATIONSHIPS THAT ANY ONE OR MORE OF THE PARTIES HAS OR MAY HAVE HAD WITH NBD
AT ANY TIME AND FOR ANY REASON INCLUDING, BUT NOT LIMITED TO, DEMAND DEPOSIT
ACCOUNTS, OR OTHERWISE.
42. WAIVER OF JURY TRIAL AND BOND; SUBMISSION
TO JURISDICTION; AND ACKNOWLEDGMENT.
(A) ANY JUDICIAL PROCEEDING AGAINST ANY ONE OR MORE OF THE
PARTIES BROUGHT BY NBD WITH RESPECT TO ANY TERM OR CONDITION OF THIS AGREEMENT,
THE LOAN DOCUMENTS OR ANY OTHER PRESENT OR FUTURE AGREEMENT BETWEEN ANY ONE OR
MORE OF THE PARTIES AND NBD MAY BE BROUGHT BY NBD IN A COURT OF COMPETENT
JURISDICTION IN THE STATE OF MICHIGAN, UNITED STATES OF AMERICA, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY AND NBD ACCEPT FOR
THEMSELVES AND IN CONNECTION WITH THEIR
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RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY
FINAL JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT, THE LOAN
DOCUMENTS OR ANY OTHER PRESENT AND FUTURE AGREEMENT BETWEEN ANY ONE OR MORE OF
THE PARTIES AND NBD. EACH PARTY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS
UPON THEM, AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY MAIL OR
MESSENGER DIRECTED TO THEM AT THEIR ADDRESSES SET FORTH IN THIS AGREEMENT. EACH
OF THE PARTIES WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH BOND OR SURETY
WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF NBD. NOTHING CONTAINED IN THIS
SECTION AFFECTS NBD'S RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR AFFECTS NBD'S RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST ANY ONE
OR MORE OF THE PARTIES OR ANY ONE OR MORE OF THEIR PROPERTIES IN THE COURTS OF
ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY PARTY AGAINST NBD
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER OR CLAIM IN ANY WAY ARISING OUT
OF, RELATED TO OR CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY
PRESENT OR FUTURE AGREEMENT BETWEEN ANY ONE OR MORE OF THE PARTIES AND NBD, MUST
BE BROUGHT ONLY IN A COURT LOCATED IN THE STATE OF MICHIGAN. EACH PARTY WAIVES
ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED HEREUNDER OR IN
CONNECTION HEREWITH AND MAY NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION
OR VENUE OR BASED UPON FORUM NONCONVENIENS.
(B) EACH PARTY ACKNOWLEDGES THAT (1) HE, SHE OR IT HAS FULLY
READ ALL OF THIS AGREEMENT AND HAS BEEN GIVEN THE OPPORTUNITY TO CONSULT WITH
COUNSEL AND OTHER ADVISORS OF HIS, HER OR ITS CHOICE, AND AFTER CONSULTING WITH
SUCH COUNSEL OR ADVISORS, KNOWINGLY, VOLUNTARILY AND WITHOUT DURESS, COERCION,
UNLAWFUL RESTRAINT, INTIMIDATION OR COMPULSION, ENTERS INTO THIS AGREEMENT,
BASED UPON SUCH ADVICE AND COUNSEL AND IN THE EXERCISE OF HIS, HER OR ITS
BUSINESS JUDGMENT, (2) THIS AGREEMENT HAS BEEN ENTERED INTO IN EXCHANGE FOR GOOD
AND VALUABLE CONSIDERATION, RECEIPT OF WHICH THE PARTIES HERETO ACKNOWLEDGE, (3)
HE, SHE OR IT HAS CAREFULLY AND COMPLETELY READ ALL OF THE TERMS AND PROVISIONS
OF THIS AGREEMENT AND IS NOT RELYING ON THE OPINIONS OR ADVICE OF NBD OR HIS,
HER OR ITS AGENTS OR REPRESENTATIVES IN ENTERING INTO THIS AGREEMENT.
(C) THE PARTIES HERETO ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY
JURY IS A CONSTITUTIONAL RIGHT, BUT THAT THIS RIGHT
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MAY BE WAIVED. NBD AND EACH PARTY EACH HEREBY KNOWINGLY, VOLUNTARILY AND WITHOUT
COERCION, WAIVE ALL RIGHTS TO A TRIAL BY JURY OF ALL DISPUTES ARISING OUT OF OR
IN RELATION TO THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENTS
BETWEEN ANY OF THE PARTIES. NO PARTY WILL BE DEEMED TO HAVE RELINQUISHED THE
BENEFIT OF THIS WAIVER OF JURY TRIAL UNLESS SUCH RELINQUISHMENT IS IN A WRITTEN
INSTRUMENT SIGNED BY THE PARTY TO WHICH SUCH RELINQUISHMENT WILL BE CHARGED.
EACH PARTY AND NBD AGREE THAT ANY OF THEM MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THEIR CONSENT TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY AND THE OTHER AGREEMENTS SET FORTH IN
THIS AGREEMENT.
WITNESS NBD BANK
By:
-------------------------------------
Name: Xxxxxx X. Xxxxx, III
---------------------------------- --------------------------
Title: Vice President
--------------------
WITNESS MEDAR, INC.
By:
-------------------------------------
Name:
---------------------------------- --------------------------
Title:
--------------------
Subscribed and sworn to before me this day of , 1998.
---- --------------
----------------------------------------
Notary Public, County, MI
---------------
My Commission Expires:
------------------
[Signatures continued on Page 26]
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[Signatures continued from Page 25]
WITNESS MEDAR CANADA, LTD.
By:
-------------------------------------
Name:
---------------------------------- --------------------------
Title:
--------------------
Subscribed and sworn to before me this day of , 1998.
---- --------------
----------------------------------------
Notary Public, County, MI
---------------
My Commission Expires:
------------------
WITNESS INTEGRAL VISION, LTD.
By:
-------------------------------------
Name:
---------------------------------- --------------------------
Title:
--------------------
Subscribed and sworn to before me this day of , 1998.
---- --------------
----------------------------------------
Notary Public, County, MI
---------------
My Commission Expires:
------------------
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COUNSEL'S ACKNOWLEDGMENT
I have represented Medar in negotiating and executing the foregoing
Amendment and Forbearance Agreement. I have explained the legal effect and
ramifications of the Agreement to my clients. I am of the opinion that (1) the
Agreement is valid, enforceable and binding according to its terms, subject to
the effect of any applicable bankruptcy, insolvency, moratorium, reorganization,
or other similar laws affecting creditors' rights generally, and to general
principals of equity, and (2) the parties I represent executing this agreement
in representative capacities are authorized to do so.
WARREN, CAMERON, XXXXX & XXXXXXXX, P.C.
---------------------------------------
Xxxxxxxxx X. Xxxxxxx
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