EXHIBIT 10.49
AMENDMENT NO. 5 TO FORBEARANCE AGREEMENT
This AMENDMENT NO. 5 TO FORBEARANCE AGREEMENT, dated as of March 27, 2002
(this "Agreement"), is by and among (a) TransTechnology Corporation
("TransTechnology"), TransTechnology Xxxxxx-Orbis GmbH ("GmbH") and
TransTechnology (GB) Limited ("Limited", together with TransTechnology and GmbH,
the "Borrowers"), (b) Fleet National Bank ("FNB") and the other lending
institutions listed on Schedule 1 to the Credit Agreement (as hereinafter
defined) (collectively, the "Lenders"), (c) FNB, acting through its London
Branch, as Sterling Fronting Bank (the "Sterling Fronting Bank"), (d) FNB, as
issuing bank for Letters of Credit (in such capacity, the "Issuing Bank"), and
(e) FNB as Administrative Agent for the Lenders, the Sterling Fronting Bank and
the Issuing Bank (in such capacity, the "Administrative Agent").
WHEREAS, the Borrowers, the Lenders, the Sterling Fronting Bank, the
Issuing Bank, ABN AMRO Bank N.V., as Syndication Agent, Bank One, NA, as
Documentation Agent, and the Administrative Agent are parties to that certain
Second Amended and Restated Credit Agreement dated as of June 30, 1995, and
amended and restated as of July 24, 1998, as further amended and restated as of
August 31, 1999, as amended by that certain Consent and Amendment Agreement No.
1 dated as of August 21, 2000, as further amended by that certain Amendment
Agreement No. 2 dated as of December 29, 2000, as further amended by that
certain Amendment Agreement No. 3 dated as of January 31, 2001, as further
amended by that certain Consent, Amendment Agreement No. 4 to Credit Agreement
and Amendment No. 3 to Forbearance Agreement dated as of December 4, 2001 (the
"December 2001 Amendment"), and as further amended by that certain Consent,
Amendment Agreement No. 5 to Credit Agreement and Amendment No. 4 to Forbearance
Agreement dated as of January 31, 2002 (the "January 2002 Amendment") (as so
amended and restated, the "Credit Agreement"). Capitalized terms used herein
unless otherwise defined shall have the respective meanings set forth in the
Credit Agreement;
WHEREAS, pursuant to that certain Forbearance and Waiver Agreement dated
as of March 29, 2001, as amended by that certain Consent and Amendment to
Forbearance Agreement dated as of June 25, 2001, as further amended by that
certain Consent and Amendment No. 2 to Forbearance Agreement dated as of
September 27, 2001, as further amended by the December 2001 Amendment, and as
further amended by the January 2002 Amendment (as so amended, the "Forbearance
Agreement"), by and among the Borrowers, the Lenders, the Sterling Fronting
Bank, and the Administrative Agent, the Lenders and the Administrative Agent
agreed to forbear from (a) exercising their rights and remedies under the Credit
Agreement and the other Loan Documents to collect the indebtedness of the
Borrowers to the Administrative Agent and the Lenders under the Credit Agreement
and the other Loan Documents and (b) ceasing to make Revolving Credit Loans or
International Facility Loans or to issue, extend or renew Letters of Credit;
WHEREAS; pursuant to the terms of the Forbearance Agreement the
forbearance period will end on March 27, 2002;
WHEREAS, the Borrowers have requested that the Lenders and the
Administrative Agent extend such forbearance period;
WHEREAS, the Lenders and the Administrative Agent are willing to extend
the forbearance period, but only on the terms and subject to the conditions set
forth herein;
NOW, THEREFORE, in consideration of the foregoing premises, the parties
hereto hereby agree as follows:
SECTION 1. EXTENSION OF FORBEARANCE PERIOD. Section 1 of the Forbearance
Agreement is amended by deleting the date "March 27, 2002" in the two (2) places
where such date is contained therein and substituting the date "April 3, 2002".
SECTION 2. CONDITIONS TO EFFECTIVENESS. The effectiveness of the amendment
to the Forbearance Agreement contained in Section 1 of this Agreement shall be
conditioned upon the satisfaction of the following conditions precedent:
SECTION 2.1. DELIVERY OF DOCUMENTS. This Agreement shall have been
executed and delivered to the Administrative Agent by each of the Borrowers,
each of the Guarantors, and the requisite number of the Lenders.
SECTION 2.2. LEGALITY OF TRANSACTION. No change in applicable law shall
have occurred as a consequence of which it shall have become and continue to be
unlawful on the date this Agreement is to become effective (a) for the
Administrative Agent or any Lender to perform any of its obligations under any
of the Loan Documents or (b) for any of the Borrowers to perform any of its
agreements or obligations under any of the Loan Documents.
SECTION 2.3. PERFORMANCE. Each of the Borrowers shall have duly and
properly performed, complied with and observed in all material respects its
covenants, agreements and obligations contained in the Loan Documents required
to be performed, complied with or observed by it on or prior to the date this
Agreement is to become effective. Except for the Specified Defaults (as defined
in the Forbearance Agreement), no event shall have occurred on or prior to the
Effective Date, and be continuing, and no condition shall exist on the Effective
Date, which constitutes a Default or Event of Default.
SECTION 2.4. PROCEEDINGS AND DOCUMENTS. All corporate, governmental and
other proceedings in connection with the transactions contemplated by this
Agreement and all instruments and documents incidental thereto shall be in form
and substance reasonably satisfactory to the Administrative Agent and the
Administrative Agent shall have received all such counterpart originals or
certified or other copies of all such instruments and documents as the
Administrative Agent shall have reasonably requested.
SECTION 2.5. EXTENSION OF SUBDEBT FORBEARANCE. The holders of the Senior
Subordinated Loans shall have agreed, on terms and conditions satisfactory to
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the Administrative Agent and the Lenders, to extend the term of the current
forbearance under the Senior Subordinated Loan Agreement through April 5, 2002.
SECTION 2.6. PAYMENT OF LEGAL EXPENSES. The Administrative Agent shall
have received the payment in cash of all outstanding legal fees incurred by the
Administrative Agent.
SECTION 3. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers hereby
represents and warrants to the Lenders as follows:
(a) Except as set forth on Schedule 6(a) to the Forbearance Agreement, the
representations and warranties of such Borrower and of each Guarantor contained
in the Credit Agreement, the Forbearance Agreement and the other Loan Documents
to which such Borrower or Guarantor, as the case may be, is a party were true
and correct in all material respects when made and continue to be true and
correct in all material respects on the date hereof, except that the financial
statements and projections referred to in the representations and warranties
contained in the Credit Agreement shall be the financial statements and
projections of TransTechnology and its Subsidiaries most recently delivered to
the Administrative Agent, and except as such representations and warranties are
affected by the transactions contemplated hereby;
(b) The execution, delivery and performance by such Borrower of this
Agreement and the consummation of the transactions contemplated hereby: (i) are
within the corporate powers of such Borrower and have been duly authorized by
all necessary corporate action on the part of such Borrower, (ii) do not require
any approval or consent of, or filing with, any governmental agency or
authority, or any other person, association or entity, which bears on the
validity or enforceability of this Agreement and which is required by law or any
regulation or rule of any agency or authority, or other person, association or
entity, (iii) do not violate any provisions of any order, writ, judgment,
injunction, decree, determination or award presently in effect in which such
Borrower is named, any law, regulation or rule binding on or applicable to such
Borrower or any provision of the charter documents or by-laws of such Borrower,
(iv) do not result in any breach of or constitute a default under any agreement
or instrument to which such Borrower is a party or to which it or any of its
properties are bound, including without limitation any indenture, credit or loan
agreement, lease, debt instrument or mortgage, except for such breaches and
defaults which would not have a material adverse effect on such Borrower and its
Subsidiaries taken as a whole, and (v) do not result in or require the creation
or imposition of any mortgage, deed of trust, pledge or encumbrance of any
nature upon any of the assets or properties of such Borrower;
(c) This Agreement, the Credit Agreement and the Forbearance Agreement (as
amended hereby) constitute the legal, valid and binding obligations of such
Borrower, enforceable against such Borrower in accordance with their respective
terms, provided that (i) enforcement may be limited by
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applicable bankruptcy, insolvency, reorganization, moratorium or similar laws of
general application affecting the rights and remedies of creditors, and (ii)
enforcement may be subject to general principles of equity, and the availability
of the remedies of specific performance and injunctive relief may be subject to
the discretion of the court before which any proceeding for such remedies may be
brought; and
(d) As of the date hereof, no "Event of Default" under and as defined in
any instrument evidencing any Subordinated Debt has occurred.
SECTION 4. PAYMENT OF INTEREST UNDER SUBORDINATED LOAN AGREEMENT. The
Borrowers hereby agree that they will not make any payments to the holders of
the Senior Subordinated Loans prior to April 5, 2002 and any payments made on or
after such date will be made in accordance with the provisions of the
Intercreditor and Subordination Agreement dated as of August 29, 2000 related
thereto.
SECTION 5. REAFFIRMATION. Except as modified hereby, the Borrowers hereby
reaffirm in all respects all the covenants, agreements, terms and conditions of
the Credit Agreement, the Forbearance Agreement and the other Loan Documents
which are incorporated in full herein by reference, and all terms, conditions
and provisions thereof shall remain in full force and effect.
SECTION 6. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Agreement, it shall
not be necessary to produce or account for more than one such counterpart signed
by the party against whom enforcement is sought.
SECTION 7. RELEASE. In order to induce the Administrative Agent and the
Lenders to enter into this Agreement, each Borrower acknowledges and agrees
that: (i) no Borrower has any claim or cause of action against the
Administrative Agent or any Lender (or any of its respective directors,
officers, employees or agents); (ii) no Borrower has any offset right,
counterclaim or defense of any kind against any of their respective obligations,
indebtedness or liabilities to the Administrative Agent or any Lender; and (iii)
each of the Administrative Agent and the Lenders has heretofore properly
performed and satisfied in a timely manner all of its obligations to each
Borrower. The Borrowers wish to eliminate any possibility that any past
conditions, acts, omissions, events, circumstances or matters would impair or
otherwise adversely affect any of the Administrative Agent's and the Lenders'
rights, interests, contracts, collateral security or remedies. Therefore, each
Borrower unconditionally releases, waives and forever discharges (A) any and all
liabilities, obligations, duties, promises or indebtedness of any kind of the
Administrative Agent or any Lender to any Borrower, except the obligations to be
performed by the Administrative Agent or any Lender on or after the date hereof
as expressly stated in this Agreement, the Credit Agreement, the Forbearance
Agreement (as amended hereby) and the other Loan Documents, and (B) all claims,
offsets, causes of action, suits or defenses of any kind whatsoever (if any),
whether arising at law or in equity,
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whether known or unknown, which any Borrower might otherwise have against the
Administrative Agent, any Lender or any of its directors, officers, employees or
agents, in either case (A) or (B), on account of any condition, act, omission,
event, contract, liability, obligation, indebtedness, claim, cause of action,
defense, circumstance or matter of any kind existing as of the date hereof, or
occurring prior to the date hereof.
SECTION 8. EFFECTIVE DATE. This Agreement shall be deemed to be effective
as of the date set forth above upon the satisfaction of the conditions precedent
set forth in Section 2 hereof (the "Effective Date").
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment No.
5 to Forbearance Agreement as a sealed instrument as of the date first set forth
above.
TRANSTECHNOLOGY CORPORATION
By: /s/Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Chief
Financial Officer and Treasurer
TRANSTECHNOLOGY XXXXXX-ORBIS GmbH
By: /s/Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Managing Director
TRANSTECHNOLOGY (GB) LIMITED
By: /s/Xxxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Director
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
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FLEET NATIONAL BANK,
individually, as Administrative Agent and
as Sterling Fronting Bank
By: /s/Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Workout Officer
ABN AMRO BANK N.V., individually and as
Syndication Agent
By: /s/Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Group Senior Vice President
By: /s/Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Group Vice President
BANK ONE, NA, individually and as
Documentation Agent
By: /s/Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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KEY CORPORATE CAPITAL INC.
By:
-------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By: /s/Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
COMERICA BANK
By: /s/Xxxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Assistant Vice President
DRESDNER BANK, AG, NEW YORK
AND GRAND CAYMAN BRANCHES
By: /s/Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By: /s/Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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The Guarantors under (and as defined in) the Subsidiary Guaranty hereby
acknowledge that they have read and are aware of the provisions of this
Agreement and hereby reaffirm their absolute and unconditional guaranty of the
Borrowers' payment and performance of their obligations to the Lenders and the
Administrative Agent under the Credit Agreement as affected hereby.
TRANSTECHNOLOGY ENGINEERED RINGS USA, INC.
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Secretary
RETAINERS, INC.
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Secretary
RANCHO TRANSTECHNOLOGY CORPORATION
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Secretary
TRANSTECHNOLOGY SYSTEMS & SERVICES, INC.
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Secretary
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SSP INDUSTRIES
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Secretary
SSP INTERNATIONAL SALES, INC.
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Secretary
TRANSTECHNOLOGY INTERNATIONAL INC.
(F/K/A TRANSTECHNOLOGY XXXXXX INC.)
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Secretary
XXXXXX INC.
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Secretary
TCR CORPORATION
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Secretary
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AEROSPACE RIVET MANUFACTURERS CORPORATION
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Secretary
NORCO, INC.
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Secretary
XXXXXXX RING & WASHER INC.
By: /s/Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President & Secretary
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