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EXHIBIT 10.12A
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ESCROW AND FORBEARANCE AGREEMENT
THIS ESCROW AND FORBEARANCE AGREEMENT ("Agreement") is made as of the
29th day of September, 2000 by and among FLEET NATIONAL BANK, with an office and
place of business at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Fleet") and
EDAC TECHNOLOGIES CORPORATION, a Wisconsin corporation, with its chief executive
office located at 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (the
"EDAC"), APEX MACHINE TOOL COMPANY, INC., a Connecticut corporation, with its
chief executive office located at 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxx 00000 ("Apex"), GROS-ITE, INC., a Connecticut corporation with its
chief executive office located at 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxx 00000 ("Gros-Ite") (Gros-Ite together with Apex collectively, the
"Guarantor") and XXXXXX, XXXXX & XXXXXXXX, P.C., with an xxxxxx xx Xxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000-0000 ("UKS").
WITNESSETH:
WHEREAS, Fleet has made certain loans and advances to EDAC as described
in the Original Loan Documents ("Fleet Loans"), which Fleet Loans are in
default; and
WHEREAS, Fleet and EDAC have agreed to resolve such issues that relate
to the Fleet Loans in accordance with this Agreement; and
WHEREAS, as part of the resolution with Fleet, EDAC and Guarantors are
entering into a financing arrangement with General Electric Capital Corporation;
and
WHEREAS, in connection with such resolution of issues between Fleet and
EDAC, certain documents have been executed but will not be released or effective
until such time as the conditions in paragraph 3 of this Agreement have been
satisfied;
NOW, THEREFORE, for One Dollar ($1.00) and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties to this Agreement agree as follows:
1. Recitals. The recitals set forth above are true and correct.
2. Custody of Documents. The following documents (collectively,
"Documents") shall be executed by the necessary parties and shall be held in
escrow by UKS:
(a) One (1) original Amended and Restated Term Note made
by EDAC to the order of Fleet in the original
principal amount of $7,000,000;
(b) Four (4) Security Agreements executed by EDAC in
favor of Fleet;
(c) Four (4) Security Agreements executed by APEX in
favor of Fleet;
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(d) Four (4) Security Agreements executed by Gros-Ite in
favor of Fleet;
(e) Four (4) Guaranty Agreements executed by Apex in
favor of Fleet;
(f) Four (4) Guaranty Agreements executed by Gros-Ite in
favor of Fleet; and
(g) Four (4) Mortgage Modification Agreements executed by
and between Fleet and EDAC.
3. Conditions To Release Document.
(a) Within forty-five (45) days of the date of this Agreement
("Forbearance Period"), EDAC shall pay to Fleet $2,000,000, together with
accrued interest on such sum at the rate per annum equal to the Prime Rate plus
one percentage point (1%) ("Interest Rate") ("Mortgage Payoff"). At such time as
Fleet shall have received the Mortgage Payoff, in immediately available funds,
Fleet shall notify UKS in writing that (x) it has received the Mortgage Payoff
and (y) it has accepted the Documents ("Acceptance Notice") and UKS shall
thereafter automatically release the Documents held in escrow to Fleet. In
connection with the Mortgage Payoff, Fleet agrees to execute a subordination
agreement whereby Fleet subordinates its first mortgage position on the
Mortgaged Property to any mortgagee designated by EDAC.
At such time as Fleet delivers the Acceptance Notice, the Documents
shall to the extent and in the manner provided therein, replace and supercede
the Original Loan Documents and any forgiveness of debt as described in the
Documents shall become effective. As of this date and at all times prior to
Fleet delivering the Acceptance Notice, subject to the terms and conditions of
this Agreement during the Forbearance Period, the Original Loan Documents shall
be and remain in full force and effect.
(b) In the event Borrower fails to deliver the Mortgage Payoff
as provided in 3(a) above, EDAC may extend the Forbearance Period in thirty day
(30) increments up to a maximum of ninety (90) days by paying to Fleet on
November 14, 2000 and on each 30th day thereafter a payment in the amount of
$33,333.33, together with accrued interest at the Interest Rate (individually an
"Interim Payment" and collectively, the "Interim Payments").
(c) In the event Borrower tenders the Mortgage Payoff on or
prior to the expiration of the Forbearance Period (as same may be extended as
provided in 3(b) above) $33,333.33 of each Interim Payment shall be applied to
reduce the principal amount of the Mortgage Payoff. In the event EDAC fails to
tender the Mortgage Payoff at the time and in the manner required herein, the
Interim Payments shall be applied to the Fleet Loans in accordance with the
terms of the Original Loan Documents.
(d) The failure to make any payment at the time and in the
manner provided herein (time is of the essence with respect to all payments due
hereunder) shall constitute a default of this Agreement and Fleet may
immediately exercise any and all of the rights and
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remedies available to it under the Original Loan Documents, without further
notice or demand, all of which is expressly waived by EDAC, Apex and Gros-Ite.
(e) Definitions. All capitalized terms used in this Agreement
shall have the meaning ascribed to such terms below:
"Loan Agreement" means the Revolving Loan and Security Agreement dated
October 3, 1985, between Bank and Borrower which has been amended and restated
from time to time, and in its entirety by a certain Fifth Amended and Restated
Revolving Loan, Term Loan, Equipment Loan and Security Agreement dated February
28, 1995, as amended by a certain Sixth Amendment to Revolving Loan, Term Loan,
Equipment Loan and Security Agreement dated July 31, 1995, as further amended by
a certain Seventh Amendment to Revolving Loan, Term Loan, Equipment Loan and
Security Agreement and Reaffirmation of Guaranties dated as of January 26, 1996,
as further amended by a certain Eighth Amendment to Revolving Loan, Term Loan,
Equipment Loan and Security Agreement and Reaffirmation of Guaranties dated as
of April 10, 1996, as further amended by a certain Ninth Amendment to Revolving
Loan, Term Loan, Equipment Loan, Security Agreement, Modification of Notes and
Reaffirmation of Guaranties dated May 27, 1997 between Borrower and Bank, as
further amended by a certain Tenth Amendment to Revolving Loan, Term Loan,
Equipment Loan and Security Agreement and Reaffirmation of Guaranties dated May
22, 1998, as further amended by a certain Eleventh Amendment to Loan and
Security Agreement, Modification of Notes and Reaffirmation of Guaranties dated
as of June 30, 1998 and as further amended by a certain Twelfth Amendment to
Loans and Security Agreement Modification of Notes and Reaffirmation of
Guaranties dated as of November 25, 1998, as the same may be amended, modified
or otherwise supplemented from time to time.
"Mortgage" means the Mortgage dated May 12, 1989 executed by EDAC in
favor of Fleet covering the Mortgaged Property, as amended and modified from
time to time.
"Mortgaged Property" means the real property of EDAC located at 0000
Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx, 0000 Xxx Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxx and 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx.
"Original Loan Documents" means the Loan Agreement and the Original
Notes.
"Original Notes" means the Second Amended and Restated Revolving
Promissory Note in the original principal amount of $13,000,000 dated as of June
30, 1998, the Term Promissory Note in the original principal amount of
$14,000,000 dated June 30, 1998, the Amended and Restated Promissory Note in the
principal amount of $541,153.34 dated March 27, 1997, the Term Promissory Note
in the principal amount of $4,000,000 dated March 22, 1993, the Construction to
Permanent Loan Promissory in the original principal amount of $1,000,000 dated
July 31, 1995, the Equipment Promissory Note III in the original principal
amount of $3,000,000 dated as of March 27, 1997, the Equipment Promissory Note
IV in the original principal amount of $3,000,000 dated as of May 22, 1998, each
executed by EDAC in favor of Fleet and all other promissory notes of EDAC
outstanding from time to time pursuant to the Loan Agreement.
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"Prime Rate" means the variable per annum rate of interest so
designated from time to time by Fleet National Bank as its Prime Rate. The Prime
Rate is a reference rate and does not necessarily represent the lowest or best
rate being charged to any customer. Changes in the rate of interest resulting
from changes in the Prime Rate shall take place immediately without notice or
demand of any kind.
4. Termination of Escrow. If the Mortgage Payoff shall not have
occurred by February 14, 2001, then UKS shall automatically destroy the
Documents escrowed by them hereunder, unless otherwise instructed in a writing
joined in by all of the parties hereto.
5. Duties of Escrow Agent. UKS shall have no duties hereunder
except to release or hold the Documents in accordance with this agreement and
shall have no liability to any party except for its willful misconduct or gross
negligence. By agreeing to act as Escrow Agent, UKS has not entered into any
attorney-client relationship with EDAC, Apex and/or Gros-Ite, will not be
precluded from representing Fleet with regard to any of the transactions or
matters referenced herein nor be preclude from representing Fleet in any other
matter or from representing any client with interests adverse to EDAC, Apex
and/or Gros-Ite. Fleet acknowledges that it has been advised by UKS to seek the
advice of other counsel with respect to the limitation of UKS's liability
contained in this section.
6. Notices. All notices, requests and other communications
hereunder shall be made in writing (including telex and telecopy
communications), shall be sent by first-class mail, postage prepaid, or sent by
commercial overnight courier delivery service, charges prepaid, or sent by
telex, telecopier or hand delivery, addressed as follows:
(a) If to EDAC, Apex and Gros-Ite, at:
EDAC Technologies Corporation
0000 Xxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telecopier:860-674-2718
with a copy to:
Xxxxxxxx Xxxxxxx Van Xxxxx Xxxxxx & Xxxxxxxxxx S.C.
0000 Xxxxx Xxxxx Xxxxxx
X.X. Xxx 000000
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Telecopier: 000-000-0000
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(b) If to the Bank, at:
Fleet National Bank
000 Xxxx Xxxxxx
XX: CT EH 40223B
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Asset Manager - Managed Asset Division
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxxx, P.C.
Xxx Xxxxx Xxxxxx
X.X. Xxx 000000
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Telecopier: (000) 000-0000
(c) If to the UKS, at:
Xxxxxx, Xxxxx & Xxxxxxxx, P.C.
Xxx Xxxxx Xxxxxx
X.X. Xxx 000000
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Telecopier: (000) 000-0000
7. Further Assurances. The parties agree that they will execute
and deliver such further instruments and documents necessary to consummate the
transaction contemplated herein.
8. Fees and Expenses. EDAC, Apex and Gros-Ite will reimburse and
indemnify Fleet for all reasonable out-of-pocket expenses incurred after
September 29, 2000, either before or after obtaining judgment on or with respect
to any amounts payable hereunder, including but not limited to reasonable
attorneys' fees and disbursements, incurred or expended in connection with the
preparation, negotiation, interpretation or delivery of this Agreement or any
amendment hereof or thereof or with the enforcement or collection of any
obligations or the satisfaction of any indebtedness of EDAC, Apex and Gros-Ite
hereunder or thereunder, whether or not proceedings are instituted in any court
of competent jurisdiction, or in connection with any litigation, proceeding or
dispute hereunder or thereunder.
9. Governing Law. This Agreement shall be governed by, and shall
be construed and enforced in accordance with, the laws of the State of
Connecticut, without reference to Connecticut's choice of law rules.
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10. PREJUDGMENT REMEDIES. EDAC, APEX AND GROS-ITE HEREBY
ACKNOWLEDGE THAT THE TRANSACTION OF WHICH THIS AGREEMENT IS A PART IS A
COMMERCIAL TRANSACTION AND WAIVE THEIR RIGHTS TO NOTICE AND HEARING UNDER
CHAPTER 903a OF THE CONNECTICUT GENERAL STATUTES OR BY OTHER APPLICABLE LAW WITH
RESPECT TO ANY PREJUDGMENT REMEDY WHICH FLEET MAY DESIRE TO USE.
11. JURY TRIAL. EDAC, APEX AND GROS-ITE HEREBY WAIVES TRIAL BY
JURY IN ANY COURT IN ANY SUIT, ACTION, OR PROCEEDING OR ANY MATTER ARISING IN
CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTION OF WHICH THIS AGREEMENT
IS A PART AND/OR IN THE ENFORCEMENT BY FLEET OF ANY OF ITS RIGHTS AND REMEDIES
HEREUNDER OR UNDER APPLICABLE LAW. EDAC, APEX AND GROS-ITE ACKNOWLEDGE THAT THEY
MAKE THIS WAIVER KNOWINGLY, VOLUNTARILY AND ONLY AFTER CONSIDERATION OF THE
RAMIFICATIONS OF THIS WAIVER BY THEIR ATTORNEY.
IN WITNESS WHEREOF, the Borrower has hereunder set its hand by its duly
authorized officers on the date first above written.
BORROWER:
EDAC TECHNOLOGIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Its EVP and CFO
Duly Authorized
GUARANTORS:
APEX MACHINE TOOL COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
Duly Authorized
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GROS-ITE, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
Duly Authorized
FLEET NATIONAL BANK
By: /s/ G. Xxxxxxxxxxx Xxxxxx
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G. Xxxxxxxxxxx Xxxxxx
Its Vice President
Duly Authorized
Accepted:
XXXXXX, XXXXX & XXXXXXXX, P.C.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, Esq.
Title: Vice President
