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FIRST AMENDMENT TO 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 First
Amendment to Amendment and Forbearance Agreement (this "first Amendment"), on
March ____, 1999. 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. The Parties and NBD are parties to an Amendment and Forbearance
Agreement dated December 14, 1998 (the "Forbearance Agreement"). Capitalized
terms used but not defined in this First Amendment have the same meanings as in
the Forbearance Agreement.
B. On March 4, 1999, (i) there was $9,025,000 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 $80,978 in principal owing by Medar to NBD under the Equipment Loan
Note, (iv) there was $1,125,000 in principal owing by Medar to NBD under the
1997 Mortgage Note (v), there was $1,975,560 in principal owing by Medar to NBD
under the 1995 Mortgage Note, (vi) there was $35,632.35 in principal owing by
Medar to NBD under the Instaloans, and (vii) there was $34,493.60 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 First Amendment, together with all other present and future
obligations of Borrowers to NBD, are referred to herein, collectively, as the
"Obligations."
C. 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 First Amendment 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)
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will be extended beyond the expiration thereof.
D. 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.
E. 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 direct and substantial economic benefit from such
Obligations, and from any other loans made or which may be made in the future to
Borrowers.
F. Over the past several weeks, the Parties have been attempting to
reach an agreement with the Junior Creditors with respect to resolving defaults
under the Subordinated Debt, and the Parties are also attempting to resolve the
Existing Defaults under the Loan Documents. The Forbearance Period expired March
5, 1999, and the Parties have requested that NBD agree to extend the Forbearance
Period with respect to the Existing Defaults to allow the Parties additional
time to reach an agreement with the Junior Creditors and to address the Existing
Defaults.
G. Subject to the terms and conditions of this First Amendment, and in
reliance on the Parties' agreements, acknowledgments, representations, and
warranties in this First Amendment, NBD has agreed to amend the Loan Documents
and forbear from enforcing its right with respect to 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. Paragraph 1 of the Forbearance Agreement is amended in
its entirety to read 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 Monday, June 7, 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
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each Party fully complies with all the terms and conditions of
this Agreement and the other Loan Documents; and
(b) NBD receives, on Monday, March 15, 1999 (the "Effective
Date"), by facsimile, a fully-executed copy of the First
Amendment to Amendment and Forbearance 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, with all originals to follow by overnight courier.
2. AGREEMENT WITH JUNIOR CREDITORS. No later than the close of business
on Friday, March 26, 1999, Borrowers shall provide to NBD a copy of the written
agreement reached with the Junior Creditors regarding resolution of defaults
with respect to the Subordinated Debt acceptable to NBD in its sole discretion.
In the interim, the Parties will continue to advise NBD on a regular basis of
their progress with respect to reaching an agreement with the Junior Creditors.
3. NEW DEFAULTS. Borrowers have defaulted under the Forbearance
Agreement for the following reasons:
(a) Borrowers' Tangible Net Worth at December 31, 1998 was
less than $3,900,000, as required by Paragraph 3(a) of the
Forbearance Agreement (As of December 31, 1998, Borrowers'
Tangible Net Worth was $3,130,631.); and
(b) Borrowers' Total Liabilities to Tangible Net Worth
exceeded 7.25 to 1.0 at December 31, 1998, in violation of
Paragraph 3(b) of the Forbearance Agreement (As of December
31, 1998, Borrowers' Total Liabilities to Tangible Net Worth
was 9.25 to 1.0).
For convenience, the above-referenced defaults are referred to
herein as the "New Defaults." As an accommodation to Borrowers, and subject to
the terms and conditions of this First Amendment, NBD agrees to forbear from
exercising its rights and remedies with respect to the New Defaults under the
same terms and conditions under which it has agreed to forbear from exercising
its rights and remedies with respect to the Existing Defaults and, in that
regard, the term "Existing Defaults" as used in the Forbearance Agreement, as
amended by this First Amendment, shall include the New Defaults.
4. REVISED PROJECTIONS; PERMITTED DEVIATIONS. Attached hereto as
Exhibit A are updated projections (the "Projections") delivered by Borrowers to
NBD. The Projections indicate that the New Defaults set forth above may worsen
during the Forbearance Period and Borrowers have requested that NBD make an
allowance for this. Thus, as an accommodation to Borrowers, Paragraph 3 of the
Forbearance Agreement is hereby amended in its entirety to read as follows:
3. PERMITTED DEVIATIONS. 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
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this Agreement so long as the following financial covenants
are met during the Forbearance Period (the "Permitted
Deviations"):
(a) Tangible Net Worth shall be not less than $2,130,631 at
January 31, 1999, not less than $1,830,631 at February 28,
1999, not less than $2,830,631 at March 31, 1999, not less
than $2,230,631 at April 30, 1999, and not less than
$2,330,631 at May 31, 1999 and thereafter;
(b) Total Liabilities to Tangible Net Worth shall not exceed
14.85 to 1 at January 31, 1999, 17.49 to 1 at February 28,
1999, 11.03 to 1 at March 31, 1999, 13.95 to 1 at April 30,
1999, and 13.03 to 1 at May 31, 1999 and thereafter; and
(c) Earnings Before Interest Taxes Depreciation and
Amortization (EBITDA) shall not be less than ($586,000) for
the month ended January 31, 1999, not less than $117,000 for
the month ended February 28, 1999, not less than $1,391,000
for the month ending March 31, 1999, not less than ($210,000)
for the month ending April 30, 1999, and not less than
$490,000 for the month ending May 31, 1999 and thereafter; and
(d) Current Ratio shall not be less than 1.0 to 1.0 at any
time during the Forbearance Period or thereafter.
5. DEFAULTS. In addition to any other Events of Default or defaults
provided for in the Loan Documents and the Forbearance Agreement, 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 First Amendment (and each Loan Document, including the Forbearance
Agreement):
(a) If Borrowers fail to reach a written agreement with the
Junior Creditors regarding resolution of defaults with respect to Subordinated
Debt acceptable to NBD in its sole discretion and provide a copy of such
agreement to NBD on or before March 26,1999; and
(b) If the field examination to be conducted by NBD during the
month of March, 1999 is unsatisfactory to NBD in its sole discretion.
6. FEES. In consideration for NBD agreeing to extend the Forbearance
Period and 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 an extension fee in the amount of $75,000 simultaneously with
the execution of this First Amendment (the "Extension Fee"). In addition,
Borrowers shall continue to pay NBD the Forbearance Fee of $25,000 per month on
the first day of each month until all Obligations are paid in full. In addition,
simultaneously with the execution of this First Amendment, Borrowers shall
reimburse NBD for legal fees and expenses totaling $26,037.57 incurred by NBD
through January 31, 1999.
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7. SPECIAL ACCOMMODATIONS. The Parties acknowledge and agree that NBD
has entered into foreign exchange contracts with Borrowers and has allowed
Borrowers the use of a Controlled Disbursement Account. The Parties further
acknowledge and agree that NBD may, in its sole discretion, require Borrowers to
close their Controlled Disbursement Account and refuse to enter into further
foreign exchange contracts with Borrowers. Notwithstanding the foregoing and not
in any way affecting NBD's sole discretion in this regard, it is NBD's current
intention to continue to allow Borrowers to enter into foreign exchange
contracts with NBD and to maintain a Controlled Disbursement Account, but it is
also NBD's current intention to immediately terminate these accommodations to
Borrowers if there is a default or Event of Default (other than the Existing
Defaults) under the Loan Documents, including the Forbearance Agreement as
amended hereby.
8. ENTIRE AGREEMENT, ETC.
(a) This First Amendment and the Exhibits hereto constitute
the Parties' and NBD's entire understanding with respect to the subject matter
hereof. Modifications or amendments to this First Amendment must be in writing
and signed by the party to be charged in order to be effective. This First
Amendment is governed by the internal laws of the State of Michigan (without
regard to conflicts of law principles). This First Amendment 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 First Amendment 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 First Amendment.
(b) This First Amendment 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
First Amendment will not necessarily be construed against any particular party
as the drafter of such language.
(c) This First Amendment 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
First Amendment.
(e) The term "including" means including, without limitation,
and the term "includes" means includes, without limitation.
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(f) All headings are inserted for convenience only and do not
affect the construction or interpretation of this First Amendment.
9. ADDITIONAL REPRESENTATIONS. Each Party represents and warrants to
NBD that:
(a) Each Borrower's execution, delivery, and performance of
this First Amendment 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 First Amendment and all agreements and documents delivered in connection
with this First Amendment.
(c) This First Amendment 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) No Party has assigned any claim, set off or defense to any
individual or entity.
(g) This First Amendment 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
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business prospects.
(h) All Parties executing this First Amendment in a
representative capacity warrant that they have authority to execute this First
Amendment and legally bind the entity they represent.
10. SURVIVAL; RELIANCE. All agreements, representations and warranties
made in this First Amendment (and all agreements referred to or incorporated
herein) survive the execution of this First Amendment (and all documents and
agreements referred to or incorporated herein). Notwithstanding anything in this
First Amendment (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.
11. IMPAIRMENT OF COLLATERAL. The execution and delivery of this First
Amendment (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 First
Amendment (or any agreement or document referred to herein). All present and
future additional security is to be considered as cumulative security.
12. 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 First
Amendment and each Loan Document.
13. 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
First Amendment 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 First
Amendment 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.
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14. 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 First Amendment other than those which are set forth in this
First Amendment.
15. EFFECT OF FIRST AMENDMENT. All references to the Loan Documents
include the Forbearance Agreement as amended by this First Amendment and all
security agreements, pledge agreements, notes, mortgages, assignments and other
documents and instruments executed by any Party in connection with or in
furtherance of the Forbearance Agreement as amended by this First Amendment.
Each Party agrees that this First Amendment supplements the Forbearance
Agreement, but is not a novation of, and does not terminate, extinguish or
discharge any obligations evidenced by the Forbearance Agreement. Each Party
hereby ratifies, confirms and approves all the terms and conditions of the
Forbearance Agreement as supplemented hereby, and acknowledges and agrees that
such Forbearance Agreement, as supplemented hereby, remains in full force and
effect. All the terms and conditions of the Forbearance Agreement, as
supplemented hereby, including, without limitation, the Release and Waiver of
Jury Trial provisions contained therein, are hereby ratified, confirmed and
approved by each Party as if made and entered into on this date.
WITNESS NBD BANK
By:
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Name: Xxxxxx X. Xxxxx, III
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Title: Vice President
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WITNESS MEDAR, INC.
By:
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Name:
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Title:
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Subscribed and sworn to before me this day of , 1999.
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Notary Public, County, MI
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My Commission Expires:
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[Signatures continue on Page 9]
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[Signatures continue from Page 8]
WITNESS MEDAR CANADA, LTD.
By:
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Name:
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Title:
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Subscribed and sworn to before me this day of , 1999.
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Notary Public, County, MI
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My Commission Expires:
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WITNESS INTEGRAL VISION, LTD.
By:
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Name:
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Title:
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Subscribed and sworn to before me this day of , 1999.
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Notary Public, County, MI
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My Commission Expires:
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[Counsel's Acknowledgement continued on Page 10]
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[Counsel's Acknowledgement continued from Page 9]
COUNSEL'S ACKNOWLEDGMENT
I have represented Medar in negotiating and executing the foregoing
First Amendment to Amendment and Forbearance Agreement. I have explained the
legal effect and ramifications of the First Agreement to my clients. I am of the
opinion that (1) the First Amendment 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 First Amendment in representative capacities are authorized to do
so.
WARREN, CAMERON, XXXXX & XXXXXXXX, P.C.
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EXHIBIT A: PROJECTIONS
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