Exhibit 10.2
Forbearance Agreement
EXHIBIT 10.2
BRAMPTON COMMERCIAL BANKING CENTER
NATIONAL
BANK
OF CANADA
October 19, 2001
Blue Giant Equipment Corporation
Attention: Mr. Xxxxxxx Xxxxxxxx
00 Xxxxx Xxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx X0X 0X0
-and-
TBM Holdings Inc.
Attention: Mr. Xxxxxxx Xxxxxxxx
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000 X.X.X.
Dear Sirs:
RE: BLUE GIANT EQUIPMENT CORPORATION (THE "BORROWER") CREDIT FACULTIES FROM
NATIONAL BANK OF CANADA (THE "BANK"), GUARANTEED BY TBM HOLDINGS INC.
(THE "GUARANTOR")
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The Borrower, the Guarantor and the Bank entered into an Offer to Finance dated
October 26, 2000 (the "Offer"), as amended by a Revised Offer to Finance dated
March 23, 2001 (the "Second Revised Offer") to provide certain credit facilities
from the Bank to the Borrower on the terms and conditions set out therein.
Each of the Borrower and the Guarantor has executed and delivered certain
security, guarantees and other documentation to the Bank pursuant to the Offer
and the Second Revised Offer, including without limitation, promissory notes, a
general security agreement, a general assignment of book debts, Bank Act
security and a Charge/Mortgage of Land against 00 Xxxxx Xxxx Xxxx Xxxxx,
Xxxxxxxx from the Borrower, a Guarantee and a Subordination and Postponement
Agreement from the Guarantor and a Non-Merger Acknowledgment from the Borrower
and the Guarantor (collectively, the "Existing Security").
As of June 30, 2001, the Borrower has been in default at its financial covenants
under the Offer, as amended by the Second Revised Offer and the Existing
Security, and, in particular, the Senior Debt to EBITDA Ratio and Debt Service
Coverage covenants as defined therein. The Bank has notified the Borrower of
such breach and the Borrower has failed to remedy same.
The Bank has the right to declare all of the debts, liabilities and obligations
owing under the Offer immediately due and payable and has the right to demand
payment of same and/or enforce any or all of the Existing Security.
The Borrower has requested the Bank's forbearance of its rights and remedies and
the Borrower and the Guarantor have agreed to perform or fulfill, all of the
covenants, agreements, undertakings and conditions contained in this letter in
consideration of the Bank agreeing to the forbearance terms set out in this
letter.
In recognition of that agreement, the Bank is prepared to:
a. forego instituting legal proceedings against either the
Borrower or the Guarantor at this time; and
b. continue the Bank's financial support of the Borrower,
all on the following terms and conditions:
1. Each of the Borrower and the Guarantor will immediately execute and
deliver to the Bank the Revised Offer to Finance dated September 26,
2001 (the "Third Revised Offer") and take all necessary steps to comply
with the terms and conditions of the Third Revised Offer to the extent
of the covenants contained therein and to provide any additional
security, guarantees, or other documentation required thereunder (the
"Additional Security");
2. Notwithstanding the execution and delivery of the Third Revised Offer,
the Offer and the Second Revised Offer, as amended by the Third Revised
Offer shall continue to be valid, binding and enforceable and shall not
merge as a result thereof.
3. Notwithstanding the reference in the Third Revised Offer to the Revised
Offer to Finance dated February 19, 2001, said Revised Offer to Finance
dated February 19, 2001 is null and void and of no force or effect;
4. Each of the Borrower and the Guarantor acknowledges and agrees that the
Existing Security is in full force and effect and is valid and
enforceable against each of the Borrower and the Guarantor, that the
Borrower is in default and that the Bank is entitled to exercise all of
its rights and remedies;
5. The Borrower shall pay to the Bank, within 10 business days after demand
by the Bank, all of the Bank's legal fees and disbursements which have
been incurred to date and which may be incurred after the date of this
letter with respect to all of the Bank's dealings with the Borrower and
the Guarantor, including the preparation of this letter and the
enforcement of security held by the Bank. In the event that such fees
and disbursements are not paid when due, the Bank shall have the right,
but not the obligation, to debit the Borrower's account in the amount of
such fees and disbursements;
6. This agreement is without prejudice to the Bank's rights under the
Existing Security. The Bank shall be entitled to enforce any and all of
the Existing Security and/or the Additional Security in the event of any
default by the Borrower or the Guarantor in their respective obligations
as set out herein or in the Existing Security or the Additional
Security;
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7. No delay on the part of the Bank in exercising any remedy or right given
it hereunder shall operate as a waiver thereof, either hereunder or
under the Existing or Additional Security, nor shall any single or
partial exercise of any such remedy or right preclude any other or
further exercise thereof, including with respect to any other subsequent
or similar defaults, all at such times and in such order and in such
manner as the Bank in its sole and absolute discretion deems
appropriate;
8. In the event of any breach of any of the foregoing terms and conditions,
all credit arrangements, including those set out in this letter, will
immediately terminate and each of the Borrower and the Guarantor agrees
and consents to the immediate enforcement by the Bank of the Existing
Security and/or the Additional Security. Each of the Borrower and the
Guarantor further acknowledges and agrees that the Bank may exercise any
other remedy available to it under its security or at law;
9. Each of the Borrower and the Guarantor acknowledges the opportunity
being given to the Borrower and the Guarantor by the Bank by virtue of
this letter, to bring the Borrower into compliance with the Bank's
requirements pertaining to Borrower's credit. Each of the Borrower and
the Guarantor agrees not to take any proceedings under the Bankruptcy
and Insolvency Act (Canada), or any other legislation for the benefit of
debtors, which proceedings would be inconsistent with the intent of this
letter. Each of the Borrower and the Guarantor acknowledges that, in
these circumstances, it would be inequitable and in bad faith for either
or both of the Borrower and the Guarantor to file a notice of intention
to make a proposal or otherwise obtain a stay of proceedings against the
Bank, or take any other actions which would be inconsistent with the
intent of this letter. Each of the Borrower and the Guarantor
acknowledges that, in agreeing to the terms and conditions set out in
this letter, the Bank is relying on this agreement not to take any such
actions. If, however, either or both of the Borrower and the Guarantor
takes any such actions contrary to the acknowledgements and agreements
in this paragraph, each of the Borrower and the Guarantor acknowledges
that the Bank may enter this letter in evidence in any proceedings taken
by the Bank to lift any stay of proceedings against the Bank or in any
other proceedings taken by the Bank against either of the Borrower or
the Guarantor or in connection with the Borrower's indebtedness to the
Bank; and
10. In the event that any provision of this letter is held to be invalid,
illegal or unenforceable by a court of competent jurisdiction, such
provision shall not affect the validity, legality or enforceability of
any other provision of this letter and such invalid, illegal or
unenforceable provision shall be deemed to be severed from this letter
and this letter shall be construed and enforced as if such invalid,
illegal or unenforceable provision had never been included in this
letter.
This letter agreement is open for acceptance by you until October 31, 2001 at
12:00 noon. Your acceptance shall be completed by signing below and returning it
to this office by facsimile transmission. In the event your acceptance has not
been so received, the terms of this letter shall be null
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and void and the Bank shall be entitled, without further notice to you, to take
all actions available to it under the Offer and/or the Existing Security and at
law.
Yours very truly,
NATIONAL BANK OF CANADA
Per: /s/ Xxx Xxxxxxxx Per: /s/ Xxxxxx Xxxxxxxx
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Xxx Xxxxxxxx Xxxxxx X. Xxxxxxxx
Account Manager Senior Manager
ACKNOWLEDGMENTS
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(1) We acknowledge receipt of a copy of this letter and confirm that we
have read, understood and, in consideration of the Bank in its sole
discretion continuing banking relations with us in accordance with the
terms of this letter, we have agreed to the arrangements with the Bank
as set out above. We acknowledge and agree that we have been provided
with an opportunity to review this letter and to obtain legal counsel
of our own choice with respect to the execution by us of this
acknowledgment and agreement.
DATED: October 26th, 2001
BLUE GIANT EQUIPMENT CORPORATION
Per: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer
I have authority to bind the Corporation
(2) We, the Guarantor, acknowledge receipt of a copy of this letter and
confirm that we have read, understood and, in conditions of the Bank in
its sole discretion continuing banking relations with the Borrower in
accordance with the terms of this letter, we have agreed to the
arrangements with the Bank as set out above. We confirm that the security
given by us in respect of the indebtedness of the Borrower to the Bank is
in full force and effect and is valid
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and enforceable against us. We acknowledge and agree that we have been
provided with an opportunity to review this letter and to obtain legal
counsel of our own choice with respect to the execution by us of this
acknowledgment and agreement.
DATED: October 26th, 2001
TBM HOLDINGS INC.
Per:/s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: President
I have authority to bind the Corporation
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