WAIVER, CONSENT AND AMENDMENT NO. 2
TO
LOAN AND SECURITY AGREEMENT
THIS WAIVER, CONSENT AND AMENDMENT NO. 2 (this "Amendment") is entered
into as of April 1, 2003, by and between EDAC TECHNOLOGIES CORPORATION, a
Wisconsin corporation ("Leading Borrower"), APEX MACHINE TOOL COMPANY, INC, a
Connecticut corporation ("Second Borrower") (Leading Borrower and Second
Borrower being collectively referred to as "Borrowers" and each a "Borrower")
and GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation ("Lender").
BACKGROUND
Borrowers, Gros-Ite and Lender are parties to a Loan and Security
Agreement, dated as of September 29, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "Loan Agreement") pursuant to which
Lender provides Borrowers with certain financial accommodations.
Borrowers have requested that Lender (i) amend the Loan Agreement, (ii)
consent to the Modification Transactions (as defined herein) and (iii) waive
various Events of Default and Lender is willing to do so on the terms and
conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrowers by
Lender, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise defined
herein shall have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the
conditions precedent set forth in Section 5 below, the Loan Agreement is hereby
amended as follows:
(a) Schedule A is amended as follows:
(i) the following definitions are amended in
their entirety to provide as follows:
"Applicable Margin" shall mean, for each type of
Loan, the rate per annum set forth under the relevant
column heading below:
Type of Loan Rate per Annum
Revolving Credit Loans 3.75%
Term Loan A 4.00%
provided, however if no Default shall have occurred
and be continuing the Applicable Margin shall be
decreased by one-half of one percent (.50%) for each
type of Loan, ten (10) Business Days following
Lender's receipt of the audited Financial Statements
for the Fiscal Year ending December 31, 2003 showing
that Leading Borrower and its Subsidiaries on a
consolidated basis shall have a Fixed Charge Coverage
Ratio of not less than 1.0 to 1.0 for the 12-month
period then ended.
"Fleet Intercreditor and Subordination Agreement"
shall mean the Intercreditor and Subordination
Agreement dated as of the Amendment No. 2 Effective
Date among Lender, Fleet, Corsair, Borrowers and
Gros-Ite.
"Stated Expiry Date" means January 3, 2005.
(ii) the following defined terms and added in
their appropriate alphabetical order:
"Amended and Restated Note A" shall mean the Amended
and Restated Note A in the original principal amount
of $1,325,000 dated as of the Amendment No. 2
Effective Date made by EDAC in favor of Fleet which
has been assigned to Corsair pursuant to the terms of
the Assignment and Intercreditor Agreement.
"Amended and Restated Note B" shall mean the Amended
and Restated Note B in the original principal amount
of $1,000,000 dated as of the Amendment No. 2
Effective Date made by EDAC in favor of Fleet.
"Amendment No. 2" shall mean the Waiver, Consent and
Amendment No. 2 to the Loan and Security Agreement
between Borrowers and Lender dated Amendment No. 2
Effective Date.
"Amendment No. 2 Effective Date" shall have the
meaning given to the term "Effective Date" in
Amendment No. 2.
"Assignment and Intercreditor Agreement" shall mean
that certain Assignment and Intercreditor Agreement
dated as of the Amendment No. 2 Effective Date by and
between Fleet and Corsair.
"Corsair" shall mean Corsair Special Situations Fund,
L.P.
"Corsair Indebtedness" shall mean the Indebtedness of
Borrowers to Corsair evidenced by Amended and
Restated Note A.
"Fleet Indebtedness shall mean the Indebtedness of
Borrowers to Fleet evidenced by Amended and Restated
Note B.
"Projected Budget" shall meant the Projections and
Budget attached as Exhibit A to Amendment No. 2 as
Exhibit A.
(iii) the defined term "Permitted Encumbrances" is
amended by adding the following paragraph at the end thereof:
"(xii) Liens in favor of Corsair, as agent, securing
the Corsair Indebtedness and the Fleet Indebtedness."
(b) Paragraph 5(b)(vi) is amended in its entirety to
provide as follows:
"(vi) the Indebtedness evidenced by Amended and
Restated Note A and Amended and Restated Note B;"
(c) Paragraph 7.1 is amended by adding the following
paragraph at the end thereof:
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"(m) any default or event of Default shall occur
under the Fleet Intercreditor and Subordination Agreement."
(d) Paragraph (1) of Schedule G is amended in its
entirety to provide as follows:
"1. Fixed Charge Coverage Ratio.
Leading Borrower and its Subsidiaries on a
consolidated basis shall have at the end of each
Fiscal Quarter (i) during the 2003 Fiscal Year, a
Fixed Charge Coverage Ratio of not less than
eighty-five percent (85%) of the projected Fixed
Charge Coverage Ratio set forth on the Projected
Budget for the Fiscal Quarter then ended and (ii)
after the 2003 Fiscal Year, a Fixed Charge Coverage
Ratio of not less than 1.0 to 1.0 for the Fiscal
Quarter then ended."
3. Waiver of Events of Default. Subject to the satisfaction of
the conditions precedent set forth in Section 5 below, Lender hereby waives the
Events of Default arising solely out of (i) Borrowers' Financial Statements for
the Fiscal Year ending December 29, 2001 containing a going concern
qualification, (ii) Borrowers' failure to make the required payments pursuant to
the terms of the Fleet Loan Agreement and the Fleet Documents, (iii) Borrowers'
failure to maintain the required minimum Fixed Charge Coverage Ratio for the
Fiscal Quarters ended September 28, 2002, December 28, 2002 and March 29, 2003
and (iv) Second Borrower making a payment to Leading Borrower for administration
and overhead expenses in excess of $100,000 during the 2002 Fiscal Year.
4. Consent. (a) Borrowers have informed Lender that
Borrowers and Guarantor intend to enter into a Modification Agreement with Fleet
whereby the amounts owed to Fleet under the Fleet Documents shall be reduced to
the indebtedness owed pursuant to the Amended and Restated Note A and the
Amended and Restated Note B and that Fleet intends to grant, assign, sell and
transfer its rights, title and interest in Amended and Restated Note A and in
the Fleet Security Agreements to Corsair pursuant to the Assignment and
Intercreditor Agreement (all of the foregoing, collectively, the "Modification
Transactions"). The Modification Transactions are all prohibited by the terms
of the Loan Agreement and Borrowers have requested that Lender consent to the
same.
Subject to the conditions of effectiveness set forth below in
Section 5, Lender hereby consents to the Modification Transactions, including
without limitation, the payment of the Purchase Price (as defined in the
Assignment and Intercreditor Agreement), provided, that (i) Corsair and Fleet
enter into a Subordination and Intercreditor Agreement, in form and substance
satisfactory to Lender, whereby Corsair and Fleet agree to subordinate the
payment of any and all indebtedness of Borrowers to Corsair or Fleet to the
Obligations and to subordinate any Lien Corsair may have in the Collateral to
any Lien that Lender may have in the Collateral and (ii) Lender is in receipt of
all documents, instruments and agreements executed in connection with the
Modification Transactions and such documents, instruments and agreements are in
form and substance satisfactory to Lender.
5. Conditions of Effectiveness. This Amendment shall become
effective (the "Effective Date") upon satisfaction of the following conditions
precedent, each in form and substance satisfactory to Lender: (i) Lender's
receipt of four (4) copies of this Amendment executed by Borrowers and Lender
and consented and agreed to by Guarantor, (ii) Lender's receipt of documentation
relating to the Modification Transactions, (iii) Fleet and Corsair enter into a
subordination and intercreditor agreement with Lender, whereby Fleet and Corsair
agree to subordinate the payment any and all indebtedness of Borrower to Fleet
or Corsair to the Obligations and to subordinate any Lien Corsair may have in
the Collateral to any Lien that Lender may have in the Collateral, (iv) Lender's
receipt of an opinion of Borrowers' accountant that the Modification
Transactions shall not result in any tax liabilities to Borrowers, and (v)
Lender shall have received a fee in the amount of $50,000 and all attorney's
fees of Lender in connection with this Amendment, each of which shall be charged
to Borrowers' loan account as a Revolving Credit Loan on the date of this
Amendment.
6. Representations and Warranties. Borrowers hereby represent and
warrant as follows:
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(a) This Amendment and the Loan Agreement, as amended
hereby, constitute legal, valid and binding obligations of Borrowers and are
enforceable against Borrowers in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, Borrowers
hereby reaffirm all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agree that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is
continuing or would exist after giving effect to this Amendment.
(d) Borrowers have no defense, counterclaim or offset
with respect to the Loan Agreement.
7. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each
reference in the Loan Agreement to "this Agreement," "hereunder," "hereof,"
"herein" or words of like import shall mean and be a reference to the Loan
Agreement as amended hereby.
(b) Except as specifically amended herein, the Loan
Agreement, and all other documents, instruments and agreements executed and/or
delivered in connection therewith, shall remain in full force and effect, and
are hereby ratified and confirmed.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except to the extent set forth herein, operate as a waiver
of any right, power or remedy of Lender, nor constitute a waiver of any
provision of the Loan Agreement, or any other documents, instruments or
agreements executed and/or delivered under or in connection therewith.
8. Governing Law. This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
and shall be governed by and construed in accordance with the laws of the State
of New York.
9. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
10. Counterparts; Facsimile. This Amendment may be executed by the
parties hereto in one or more counterparts, each of which shall be deemed an
original and all of which when taken together shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
EDAC TECHNOLOGIES CORPORATION.
By: /s/ Xxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
APEX MACHINE TOOL COMPANY, INC.
By: /s/Xxxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Duly Authorized Signatory
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CONSENT OF GUARANTOR
The undersigned as a guarantor of the Obligations of EDAC Technologies
Corporation and Apex Machine Tool Company, Inc. to Lender hereby consents to the
foregoing Amendment No. 2 and acknowledges that its guaranty agreement remains
in full force and effect.
GROS-ITE INDUSTRIES, INC.
By: /s/Xxxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
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