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EXHIBIT 10.1
THIRTEENTH AMENDMENT AND
FORBEARANCE AGREEMENT
THIS THIRTEENTH AMENDMENT AND FORBEARANCE AGREEMENT (this "Agreement")
is made and entered into as of the 15th day of August, 2001, by and among the
Lenders (as defined below) party hereto (the "Approving Lenders"), BANK OF
AMERICA, N.A., formerly NATIONSBANK, N.A., as agent for the Lenders (the
"Agent"), XXXXXXXXX INDUSTRIES, INC. ("Xxxxxxxxx"), and certain Subsidiaries of
Xxxxxxxxx (together with Xxxxxxxxx, the "Borrowers").
W I T N E S S E T H :
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WHEREAS, the Agent, the financial institutions from time to time party
thereto (the "Lenders"), Banc of America Securities LLC, formerly NationsBanc
Xxxxxxxxxx Securities LLC, as Syndication Agent, and the Borrowers entered into
that certain Amended and Restated Loan and Security Agreement, dated as of
December 14, 1998 (as amended, the "Loan Agreement"), pursuant to which the
Lenders agreed to extend certain financial accommodations to the Borrowers; and
WHEREAS, pursuant to the Loan Agreement, the Borrowers agreed, among
other things, to comply with certain financial covenants; and
WHEREAS, the Borrowers have violated and continue to violate certain of
the financial covenants set forth in the Loan Agreement; and
WHEREAS, the financial covenants described above were material
inducements to the Agent's and Lenders' agreement to enter into the Loan
Agreement, and the Agent and Lenders would not have agreed to make loans
available to the Borrowers without the assurance that the Borrowers would comply
with such covenants; and
WHEREAS, as a result of such material defaults, the Agent and Lenders
have the right, as set forth in the Loan Agreement and the other Loan Documents,
to immediately accelerate all of the Secured Obligations and exercise all of
their rights and remedies with respect to the Collateral, all without notice to
the Borrowers; and
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WHEREAS, the Borrowers have asked the Agent and Lenders to temporarily
forbear from exercising certain of their rights and remedies with respect to the
continuing defaults described above; and
WHEREAS, the Agent and Lenders are willing to grant such temporary
forbearance, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration, the receipt and legal sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
1. All capitalized terms used herein and not otherwise expressly
defined herein shall have the respective meanings given to such terms in the
Loan Agreement.
2. The Borrowers acknowledge that they are in default under SECTIONS
11.1(A), (B), (C) and (D) of the Loan Agreement for the Borrowers' fiscal
quarter ending June 30, 2001 (the "Specified Defaults"), and that the Agent and
Lenders have not waived nor agreed to waive such Specified Defaults. The
Borrowers acknowledge that, because of the Specified Defaults, the Agent and
Lenders have the right, among other things, to declare all of the Secured
Obligations to be immediately due, payable and performable, and to enforce
collection of the Secured Obligations by repossessing and disposing of any
interest in the Collateral thereunder.
3. In consideration of the Borrowers' timely and strict compliance with
the agreements set forth in the Loan Agreement, and in reliance upon the
representations, warranties, agreements and covenants of the Borrowers set forth
herein, the Agent and Lenders agree to forbear until October 15, 2001 (the
"Forbearance Termination Date") from exercising their rights and remedies under
the Loan Agreement and the related Loan Documents as a result of the Specified
Defaults; provided, however, that (a) upon written notice from the Agent to
Xxxxxxxxx at any time to such effect, at the discretion of the Required Lenders,
the Forbearance Termination Date shall be amended to October 1, 2001, and (b)
the Agent and the Lenders reserve their right, at any time before or after the
Forbearance Termination Date, to (i) institute one or more payment blockages or
to invoke one or more "standstill" periods with respect to any Subordinated
Indebtedness, and to exercise any other rights against the holders of any
Subordinated Indebtedness, and (ii) draw upon the AVS Investor Letters of
Credit. The Agent and the Lenders reserve their rights and remedies at all times
with respect to any Default or Event of Default under the Loan Agreement, any
other Loan Document or this Agreement other than the Specified Defaults, whether
presently existing or occurring hereafter. At any time on or after the
Forbearance Termination Date, the Agent and the Lenders may exercise any of
their rights and remedies under or with respect to the Loan Agreement, the
related Loan Documents or this Agreement, whether relating to the Specified
Defaults or otherwise.
4. The Borrowers acknowledge and agree that, as of the date hereof, a
$25,000 reserve (the "Collateral Reserve") shall be instituted against the
Borrowing Base, and such Collateral Reserve shall increase by $25,000 on each
Business Day following the date hereof until the Forbearance Termination Date.
The Agent may, and at the discretion of the Required Lenders, shall, increase
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such Collateral Reserve in the event the Borrowers fail to timely deliver any
cash flow forecast as required by SECTION 10.1(F) of the Loan Agreement.
5. The Loan Agreement is amended by inserting a new SECTION 8.12(I) as
follows:
(i) The Borrowers shall deliver to the Agent and to each
Lender not later than the 15th day of each calendar month a list of all
Receivables which are (i) in excess of $75,000 and (ii) in excess of
ninety days past due, such list to set forth the name, address and
balance due for each Account Debtor obligated on a Receivable so listed
and the status of each Receivable so listed.
6. The Loan Agreement is amended by deleting SECTION 8.12(D) and
replacing it with the following in lieu thereof:
(d) BORROWING BASE CERTIFICATE. The Borrowers shall deliver to
the Agent and to each Lender, by the third Business Day of each week, a
Borrowing Base Certificate prepared as of the close of business on the
last Business Day of the immediately preceding week.
7. The Loan Agreement is amended by adding the following as SECTION
10.1(F):
(f) CASH FLOW FORECAST. Not later than August 16, 2001, a
twelve week cash flow forecast for the Borrowers and their Consolidated
Subsidiaries. The Borrowers shall also furnish to the Agent on the 1st
and 15th day of each month, commencing September 1, 2001, a revised
rolling twelve week cash flow forecast, including a reconciliation and
update to the previous cash flow forecast. Each such cash flow forecast
shall be in a form reasonably acceptable to the Agent and the Required
Lenders. Should the Borrowers fail to deliver to the Agent a cash flow
forecast within two Business Days after the required date, in addition
to the remedies set forth in SECTION 12.2, the Agent, in its sole
discretion may, and at the direction of the Required Lenders, shall,
establish a $1,500,000 reserve against the Borrowing Base, such reserve
to be released upon the delivery of such cash flow forecast.
8. The Loan Agreement is amended by deleting SCHEDULE 6.1(V) and
SCHEDULE 6.1(EE) and replacing such Schedules with new SCHEDULES 6.1(V) and (EE)
in the form attached hereto. Without limiting any other obligation or
eligibility standard under the Loan Agreement or any other Loan Document, no
Inventory (or any Receivables arising therefrom) shall be included in the
Borrowing Base unless the Security Interest with respect thereto is perfected
(or, with respect to foreign Inventory and Receivables, the Security Interest is
perfected to the extent the Agent determines that such perfection is
commercially reasonable).
9. The Borrowers acknowledge and agree that they shall have no right to
(a) request a Eurodollar Rate Loan as set forth in SECTION 2.2(A)(II) of the
Loan Agreement, or (b) continue or convert a Loan into a Eurodollar Rate Loan as
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set forth in SECTION 4.13 of the Loan Agreement, until such time as the Agent
and the Required Lenders otherwise agree in writing.
10. The Borrowers acknowledge and agree that, notwithstanding the
Agent's and Lenders' agreement to forbear set forth in SECTION 3 above, due to
the Specified Defaults, the Loans and other Secured Obligations shall bear
interest as set forth in SECTION 4.1(D) of the Loan Agreement unless and until
the Agent and the Required Lenders elect, in their sole discretion, to waive all
such Specified Defaults, with any such waiver to be in writing.
11. The Borrowers agree not to terminate the services of Phoenix
Management Services without the prior written consent of the Agent and the
Required Lenders (it being understood that the Borrowers may replace Phoenix
Management Services with another similar consultant reasonably acceptable to the
Agent and the Required Lenders with the prior written approval of the Agent and
the Required Lenders). The Borrowers also acknowledge and agree that they shall
be responsible for all costs and expenses of an additional consultant should the
Agent and the Lenders elect to hire such a consultant in connection with the
transactions evidenced by the Loan Agreement. Any violation of the terms and
conditions of this paragraph by the Borrowers shall constitute an Event of
Default.
12. The Borrowers acknowledge and agree that (a) the Agent may hire
local counsel in various foreign countries in which Collateral is located in
order to take such actions as the Agent may deem necessary or appropriate to
perfect its Security Interest in such Collateral and/or establish the Agent's
Security Interest therein as a first-priority Security Interest, (b) the
Borrowers shall be responsible for the payment of all reasonable fees and
expenses incurred in connection therewith, and (c) based on the advice of such
local counsel, the Agent may, in its discretion, remove any Collateral from the
Borrowing Base to the extent the Security Interest with respect thereto is not a
perfected, first-priority Security Interest. Any failure by the Borrowers to pay
any such reasonable fees and/or expenses following demand by the Agent therefor
shall constitute an Event of Default.
13. As consideration for the accommodations set forth herein, the
Borrowers agree to provide the Agent and Lenders a business plan, in form
acceptable to the Agent in its sole discretion, no later than August 16, 2001.
Such plan shall be in a form, and contain such detail, as may be reasonably
acceptable to the Agent and the Required Lenders. Any failure by the Borrowers
to deliver such a plan by August 16, 2001 shall constitute an Event of Default.
14. To induce the Agent and Approving Lenders to enter into this
Agreement and grant the accommodations set forth herein, the Borrowers hereby
represent and warrant that, as of the date hereof, except for the Specified
Defaults, there exists no Default or Event of Default.
15. The Borrowers hereby restate, ratify, and reaffirm each and every
term, condition, representation and warranty heretofore made by them under or in
connection with the execution and delivery of the Loan Agreement and the other
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Loan Documents, as fully as though such representations and warranties had been
made on the date hereof and with specific reference to this Agreement, except to
the extent that any such representation or warranty relates solely to a prior
date.
16. Except as expressly set forth herein, the Loan Agreement and the
other Loan Documents shall be and remain in full force and effect as originally
written, and shall constitute the legal, valid, binding and enforceable
obligations of the Borrowers to the Agent and Lenders.
17. The Borrowers agree to pay on demand all costs and expenses of the
Agent in connection with the preparation, execution, delivery and enforcement of
this Agreement and all other Loan Documents and any other transactions
contemplated hereby, including, without limitation, the fees and out-of-pocket
expenses of legal counsel to the Agent.
18. The Borrowers acknowledge that (a) except as expressly set forth
herein, neither the Agent nor any Lender has agreed to (and has no obligation
whatsoever to discuss, negotiate or agree to) any other restructuring,
modification, amendment, waiver or forbearance with respect to the Secured
Obligations, the Loan Agreement or any other Loan Document, (b) no understanding
with respect to any other restructuring, modification, amendment, waiver or
forbearance with respect to the Secured Obligations, the Loan Agreement or any
other Loan Document shall constitute a legally binding agreement or contract, or
have any force or effect whatsoever, unless and until reduced to writing and
signed by authorized representatives of each party hereto, and (c) the execution
and delivery of this Agreement has not established any course of dealing between
the parties hereto or created any obligation or agreement of the Agent or any
Lender with respect to any future restructuring, modification, amendment, waiver
or forbearance with respect to the Secured Obligations, the Loan Agreement or
any other Loan Document.
19. To induce the Agent and Approving Lenders to enter into this
Agreement and grant the accommodations set forth herein, the Borrowers (a)
acknowledge and agree that no right of offset, defense, counterclaim, claim or
objection exists in favor of the Borrowers against the Agent or any Lender
arising out of or with respect to the Loan Agreement, the other Loan Documents,
the Secured Obligations, or any other arrangement or relationship between the
Agent, the Lenders and the Borrowers, and (b) release, acquit, remise and
forever discharge the Agent, the Lenders, and each of the Agent's and Lenders'
affiliates and all of their past, present and future officers, directors,
employees, agents, attorneys, representatives, successors and assigns from any
and all claims, demands, actions and causes of action, whether at law or in
equity, whether now accrued or hereafter maturing, and whether known or unknown,
which the Borrowers now or hereafter may have by reason of any manner, cause or
things to and including the date of this Agreement with respect to matters
arising out of or with respect to the Loan Agreement, the other Loan Documents,
the Secured Obligations, or any other arrangement or relationship between the
Agent, the Lenders and the Borrowers.
20. The Borrowers agree to take such further action as the Agent and
Approving Lenders shall reasonably request in connection herewith to evidence
the agreements herein contained.
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21. This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
22. This Agreement shall be binding upon and inure to the benefit of
the successors and permitted assigns, and legal representatives and heirs, of
the parties hereto.
23. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Georgia.
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IN WITNESS WHEREOF, the below referenced parties have caused this
Agreement to be duly executed as of the date first above written.
BORROWERS:
Xxxxxxxxx Industries, Inc.
By:
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Name:
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Title:
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Xxxxxxxxx Commercial Aircraft, Inc.
By:
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Name:
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Title:
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XXXXXXXXX XXXXXX, INC.
By:
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Name:
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Title:
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CERTIFIED AIRCRAFT PARTS, INC.
By:
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Name:
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Title:
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AIRCRAFT 21801, INC.
By:
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Name:
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Title:
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AIRCRAFT 21805, INC.
By:
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Name:
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Title:
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AGENT:
BANK OF AMERICA, N.A., formerly
NationsBank, N.A., as Agent
By:
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Xxxxxx X. Xxxxxx
Senior Vice President
APPROVING LENDERS:
BANK OF AMERICA, N.A., formerly
NationsBank, N.A.
By:
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Xxxxxx X. Xxxxxx
Senior Vice President
UNION PLANTERS BANK, N.A.
By:
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Name:
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Title:
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BANK LEUMI LE-ISRAEL B.M., Miami Agency
By:
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Name:
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Title:
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IBJ WHITEHALL FINANCIAL GROUP
By:
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Name:
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Title:
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COMERICA BANK
By:
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Name:
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Title:
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MICHIGAN NATIONAL BANK, as successor in
interest to MELLON BANK, N.A.
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK
By:
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Name:
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Title:
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THE CIT GROUP/BUSINESS CREDIT, INC.
By:
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Name:
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Title:
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GENERAL ELECTRIC CAPITAL CORPORATION
By:
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Name:
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Title:
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NATIONAL BANK OF CANADA, a Canadian chartered
bank
By:
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Name:
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Title:
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BANKATLANTIC, a Federal Savings Bank
By:
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Name:
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Title:
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NATIONAL CITY COMMERCIAL FINANCE, INC.
By:
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Name:
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Title:
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PNC BANK, N.A.
By:
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Name:
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Title:
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SOUTHTRUST BANK
By:
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Name:
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Title:
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SUNTRUST BANK, ATLANTA
By:
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Name:
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Title:
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By:
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Name:
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Title:
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CONSENTED AND AGREED TO:
KEY PRINCIPAL PARTNERS, L.L.C.
By:
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Name:
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Title:
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