Exhibit 10.104
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FORBEARANCE AGREEMENT
AND
FIRST AMENDMENT TO LOAN DOCUMENTS
FORBEARANCE AGREEMENT AND FIRST AMENDMENT TO LOAN DOCUMENTS, dated as
of May 13, 2002 (this "Agreement"), made by and among Commodore Applied
Technologies, Inc. (the "Borrower"), Commodore Advanced Sciences, Inc. ("CASI"),
and The Shaar Fund, Ltd. (the "Lender").
PRELIMINARY STATEMENT
WHEREAS, on June 13, 2001, Lender made a loan (the "Loan") to the
Borrower in the original principal amount of $500,000, as evidenced by a certain
Secured Promissory Note dated as of June 13, 2001 in the original principal
amount of $500,000 (the "Note") executed and delivered to the Lender by the
Borrower; capitalized terms used herein but not defined herein having the
meaning specified in the Note;
WHEREAS, CASI executed and delivered to the Lender a certain Guaranty
and Suretyship Agreement dated as of June 13, 2001 (the "Guaranty") whereby
inter alia, CASI unconditionally guaranteed the payment and performance, inter
alia, of all of Borrower's obligations under the Note;
WHEREAS, the Note is secured, inter alia, by (a) a certain Security
Agreement dated as of June 13, 2001 executed and delivered by Borrower and CASI
(collectively, the "Obligors") to the Lender (the "Security Agreement"), and (b)
a certain Patent Collateral Assignment dated as of June 13, 2001 executed by
Borrower to the Lender (the "Patent Assignment");
WHEREAS, the Borrower has granted to Lender a certain Warrant to
Purchase Common Stock of Commodore Applied Technologies, Inc. dated as of June
13, 2001, whereby inter alia, the Lender has the option of purchasing up to
166,667 shares of the Common Stock of the Borrower at an exercise price of $.21
per share (the "Warrant") and the Borrower and the Lender entered into that
certain Registration Rights Agreement dated as of June 13, 2001 (the
"Registration Agreement");
WHEREAS, the Borrower has failed to make the scheduled payment of
principal and interest due on December 13, 2001 through the date hereof and such
failures constitute "Events of Defaults" as defined in the Note;
WHEREAS, the Borrower has requested that Lender forbear from exercising
its rights and remedies under the Note, the Guaranty, the Security Agreement,
and the Parent Assignment (collectively, the "Loan Documents") from December 13,
2001 through June 13, 2002 (the "Forbearance Period") with respect to certain
existing and anticipated Events of Defaults; and
WHEREAS, Lender is willing to grant such a forbearance and enter into
such amendment, but only upon the terms and conditions herein contained;
NOW THEREFORE, the Obligors and the Lender hereby agree as follows:
SECTION 1. Recitals. The Recitals are incorporated into this Agreement
by reference.
SECTION 2. Forbearance. The Lender hereby agrees to forbear from
accelerating the indebtedness evidenced by the Note during the Forbearance
Period and to refrain during the Forbearance Period from taking any enforcement
actions against the Borrower, but only to the extent that the Events of Defaults
giving rise to such remedies relate to failure to make the principal and
interest payments due on December 13, 2001, January 13, 2002, February 13, 2002,
March 13, 2002, April 13, 2002 and May 13, 2002 under the Note (the
"Acknowledged Defaults").
SECTION 3. Forbearance Fee. The Obligors hereby reaffirm their
obligation to jointly and severally agree to pay to Lender the sum of $39,536.71
as a Forbearance Fee (the "Forbearance Fee"), such Forbearance Fee to be due and
payable on June 13, 2002. The parties agree that the Forbearance Fee id the
Forbearance Fee described in Section 3 of that certain Forbearance Agreement and
First Amendment to Loan Documents among the parties hereto (the "Prior
Agreement") which was executed but as to which certain provisions relating to
Lender's forbearance failed to become effective as a result of the failure of
the Obligors to satisfy certain conditions precedent contained therein. The
Obligors agree that the Forbearance Fee was fully earned on the date of the
Prior Agreement and continues to be earned on the date hereof.
SECTION 4. Effect of Waiver. Except as set forth expressly herein, all
terms of the Note and the other Loan Documents shall be and remain in full force
and effect, and shall constitute the legal, valid, binding and enforceable
obligations of the Obligors. The forbearance set forth in Section 2 hereof: (a)
shall relate only to the Acknowledged Events of Default, and (b) is subject to
the satisfaction of the conditions precedent set forth in Section 7 hereof. The
waiver hereby granted by the Lender shall not apply to any other past, present
or future noncompliance with any provision of the Note or any of the other Loan
Documents (including, without, limitation, any Event of Default occurring or in
existence after the end of the Forbearance Period, whether or not related to an
Acknowledged Event of Default), and all rights, powers and remedies of the
Lender are reserved with respect thereto).
SECTION 5. No Novation or Mutual Departure. The Obligors expressly
acknowledge and agree that: (a) there has not been, and this Agreement does not
constitute or establish, a novation with respect to the Note or any of the Loan
Documents, or a mutual departure from the strict terms, provisions and
conditions thereof, other than as specifically specified in Section 2 hereof;
and (b) nothing in this Waiver shall affect or limit the Lender's right to
demand payment of liabilities owing from the Obligors under, or to demand strict
performance of the terms, provisions and conditions of, the other Loan Document,
to exercise any and all rights, powers and remedies under the Loan Documents or
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at law or in equity, or to do any and all of the foregoing, immediately at any
time after (a) the occurrence of an Event of Default, other than arising from an
Acknowledged Event of Default during the Forbearance Period or (b) the
occurrence of any Event of Default after the Forbearance Period.
SECTION 6. Amended and Restated Note. The Obligors are
contemporaneously herewith executing and delivering to the Lender that certain
Amended and Restated Secured Promissory Note (the "Restated Note") in form and
substance as attached hereto as Exhibit A. Lender shall hold the Restated Note
in escrow and the Restated Note shall not be effective until June 13, 2002;
provided however that the parties agree that Lender shall only release the
Restated Note from escrow on June 13, 2002 if (a) the conditions precedent set
forth in Section 7 hereof are satisfied, and (b) no Event of Default other than
the Acknowledged Defaults shall have occurred during the Forbearance Period.
Upon its release from Escrow the Restated Note shall amend and restate the Note
in its entirety effective as of May 10, 2002.
SECTION 7. Conditions to Effectiveness. This Agreement is effective
when duly executed by all parties, but Section 2 of this Agreement shall become
effective when all of the following conditions have been satisfied, provided
however, that if all such conditions are not satisfied on or before May 13,
2002, Section 2 shall be of no force or effect:
(a) the Lender shall have received the Restated Note, duly
executed by the Borrower;
(b) the Lender shall have received counterparts of this Agreement
executed by the Obligors and the Lender;
(c) the Lender shall have received true, correct and complete
(including all attachments) file-stamped copies of each of the financing
statements filed in connection with the Loan when originally made, each of which
financing statement shall be preceded by a cover sheet indicating the
jurisdiction in which such statement was filed and date such statement was
filed;
(d) the Lender shall have received the Consent and Acknowledgement
of Shaar Fund, Ltd. in form and substance as set forth in Exhibit B; and
(e) the Lender shall have received a certificate of the Secretary
or Assistant Secretary of each Obligor, dated the date hereof, attesting to all
corporate action taken by each of the Obligors, including resolutions of its
Board of Directors authorizing the execution, delivery and performance of the
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Restated Note and this Agreement and each other document to be delivered
pursuant to this Agreement and certifying true copies of the articles of
incorporation, by-laws and other organizational documents of each of the
Obligors; and
(f) the Lender shall have received all reasonable fees and
expenses of the Lender (including attorney's fees) which have been involved as
of April 1, 2002.
SECTION 8. Representations and Warranties of the Obligors. The Obligors
jointly and severally represent and warrant as follows:
(a) The representations and warranties contained in the Loan
Documents are true and correct in all material respects on and as of the date
hereof as though made on and as of such date. In addition, all representations
and warranties contained in the Warrant and Registration Agreement
(collectively, the "Warrant Documents") are true and correct in all material
respects on and as of the date hereof as though made on and as of such date.
(b) After giving effect to this Agreement, no event has occurred
and is continuing, which constitutes an Event of Default under the Note (other
than the "Acknowledged Defaults"), or any of the other Loan Documents, or would
constitute an Event of Default under the Note or any of the other Loan Documents
but for the giving of notice or the passage of time, or both (other than the
Acknowledged Defaults"), and the execution, delivery and performance of this
Agreement shall not cause or constitute any such default or any such Event of
Default under any of the Loan Documents, as amended hereby.
SECTION 9. References to and Effect on the Facility Documents.
(a) Upon the effectiveness of the Restated Note, on and after the
date hereof, each reference in the Loan Documents to "the Note," or words of
like import shall mean and be a reference to the Restated Note.
(b) Except as specifically amended herein, the Loan Documents and
the Warrant Documents remain in full force and effect and are hereby ratified
and confirmed. Without limiting the generality of the foregoing, (i) the
Guaranty does and shall continue to secure the payment of all of Borrower's
obligations under to Lender, whether primary or secondary, direct, absolute or
contingent, sole, joint and/or several, heretofore, now or hereafter acquired or
arising, whether at maturity or acceleration, pursuant to the or in connection
with the Loan and otherwise due and owing pursuant to the Loan Documents, as
modified hereby, and (ii) the Security Agreement does and shall continue to
secure the payment of all "Obligations" as defined therein (which shall include
obligations under the "Restated Note").
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(c) The execution, delivery and effectiveness of this Agreement
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Lender under any of the Loan Documents or under
any of the Warrant Documents, nor constitute a waiver of any provision of any of
the foregoing.
SECTION 10. Acknowledgment of Outstanding Loans. The Obligors hereby
acknowledge, certify and agree that: the obligations of the Obligors to repay
the Loan (with interest and expenses) to the Lender and to perform or otherwise
satisfy their respective other obligations under the Loan Documents (a) each
remain and shall continue in full force and effect, both before and after giving
effect to this Agreement, (b) are not subject to any defense, counterclaim,
setoff, right of recoupment, abatement, reduction or other claim or
determination, and (c) are and shall continue to be governed by the terms and
provisions of the Loan Documents as supplemented, modified and amended by this
Agreement.
SECTION 11. Costs, Expenses and Taxes. The Obligors jointly and
severally agree to pay on demand all costs and expenses of the Lender in
connection with the preparation, execution and delivery of this Agreement and
the Restated Note, and any other instruments and documents to be delivered
hereunder, including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Lender with respect thereto and with respect to
advising the Lender as to its rights and responsibilities hereunder and
thereunder. The Obligors further jointly and severally agree to pay on demand
all costs and expenses, if any (including, without limitation, reasonable
counsel fees and expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, and any other
instruments and documents to be delivered hereunder, including, without
limitation, reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section. In addition, the Obligors jointly and
severally agree to pay on demand any and all stamp and other taxes payable or
determined to be payable in connection with the execution and delivery of this
Agreement, and any other instruments and documents to be delivered hereunder,
and jointly and severally agree to save the Lender harmless from and against any
and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes.
SECTION 12. Execution in Counterparts. 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 taken together as a whole shall constitute but one
and the same instrument.
SECTION 13. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized signatories, as of the date first above
written.
THE SHAAR FUND, LTD
/s/ Xxxxxx Xxxxxxxx
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BY: Xxxxxx Xxxxxxxx
ITS: Managing Director
Commodore Applied Technologies, Inc.
/s/ Xxxxx X. XxXxxxxxx
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BY: Xxxxx X. XxXxxxxxx
ITS: Senior Vice President, Chief Financial Officer, Treasurer and Secretary
ALTHOUGH NO NOTICE TO OR APPROVAL
FROM THE UNDERSIGNED GUARANTOR IS REQUIRED,
THE UNDERSIGNED GUARANTOR ACKNOWLEDGES,
CONFIRMS AND JOINS IN THE REQUEST
FOR THE FOREGOING AGREEMENT
Commodore Advanced Sciences, Inc.
/s/ Xxxxx X. XxXxxxxxx
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BY: Xxxxx X. XxXxxxxxx
ITS: Treasurer
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