Exhibit 10.1
as of May 153, 2000
Fleet National Bank Bank of New Sovereign Bank
1155 Elm Street Hampshire 50 Rowes Wharf-Suite
Manchester, NH 03101 333 State Street 430
Attn: Daniel D. Portsmouth, NH 03801 Boston, MA 02110
Butler, Attn: David D. Attn: Steven P.
Authorized McGraw, Kanarian, Senior
Officer Vice President Vice President
Fleet National Bank Key Corporate
f/k/a BankBoston, Capital
N.A. One Canal
100 Federal Street Plaza-Sixth Floor
Boston, MA 02110 Portland, ME 04101
Attn: Daniel D. Attn: Mark
Butler, Kleinhaut,
Authorized Vice President
Officer
Re: Second Amendment to Forbearance Agreement and Credit
Agreement
Gentlemen:
Reference is made to that Forbearance Agreement made as of
the 24th day of January, 2000, as amended (as amended, the
"Agreement") by and between, on one hand, WPI GROUP, INC., WPI
ELECTRONICS, INC., WPI MAGNETEC, INC., WPI MICRO PALM, INC., WPI
POWER SYSTEMS, INC., WPI OYSTER TERMIFLEX, INC., WPI MICRO
PROCESSOR SYSTEMS, INC., WPI DECISIONKEY, INC., WPI UK HOLDING
II, INC., WPI OYSTER TERMINALS, INC., WPI INSTRUMENTS, INC., each
a New Hampshire corporation, WPI HUSKY TECHNOLOGY, INC. f/k/a WPI
Husky Computers, Inc., a Florida corporation (collectively, the
"Borrowers"), FLEET NATIONAL BANK f/k/a Fleet Bank-NH, KEY
CORPORATE CAPITAL INC., SOVEREIGN BANK, BANK OF NEW HAMPSHIRE,
FLEET NATIONAL BANK f/k/a BankBoston, N.A. (each, individually, a
Lender, and collectively, the "Lenders"), and FLEET NATIONAL BANK
f/k/a Fleet Bank-NH, as Agent for the Lenders (the "Agent"), and
the Credit Agreement dated as of August 3, 1998 among the
Borrowers, the Agent, and the Lenders. All capitalized terms
used herein that are not otherwise specifically defined herein
shall have the meanings given such terms in the Forbearance
Agreement.
The Borrowers have requested that Lenders extend the
Forbearance Period under the Agreement, and the Lenders have
agreed to do so, on the terms and subject to the conditions
hereof.
1. Acknowledgment of Obligations.
(a) By Borrowers. Each Borrower hereby acknowledges that it is
unconditionally liable to the Lenders for the full and immediate
payment of each of the obligations set forth at Schedule A hereto
and incorporated herein by reference, plus all reasonable
attorneys' fees and costs of collection incurred or that may be
incurred in connection with such obligations by the Agent or the
Lenders, and Borrowers are unconditionally liable to Lenders to
pay and perform each of the other liabilities and obligations
that may now or hereafter arise under the various documents
executed or delivered by any Borrower evidencing or relating to
such obligations (collectively, the "Loan Documents")
(hereinafter all such obligations are referred to as the
"Obligations"), and that no Borrower has any defenses,
counterclaims or set-offs with respect to the full and immediate
payment of any or all Obligations. To the best of their
knowledge and without providing any opinion as to any legal
issue, each Borrower hereby acknowledges and agrees that all of
the Obligations, and each of them, are secured by valid and
perfected, first priority liens and security interests in all of
the Collateral enforceable against the Borrowers in accordance
with their terms, provided, however, that each Borrower covenants
and agrees that, to the extent that the Obligations are not
secured by valid and perfected, first priority liens and security
interests in all of the Collateral enforceable against the
Borrowers in accordance with their terms, the Borrowers shall at
their expense and upon Agent's request, duly execute and deliver,
or cause to be duly executed or delivered, to Agent such further
instruments and do and cause to be done such further acts as may
be necessary or proper in the reasonable opinion of the Agent to
cause such Obligations to be secured by valid and perfected,
first priority liens and security interests in all of the
Collateral enforceable against the Borrowers in accordance with
their terms.
(b) No Further Commitments by Lender. The Borrowers
further acknowledge that the Agent and Lenders have no existing
commitments, obligations or agreements to advance credits or
loans or make other financial accommodations to the Borrowers
except as may be specifically set forth in the Forbearance
Agreement, as modified by this Amendment.
2. Amendments.
(a) Extension of Forbearance Period. Section 5(a)
(Forbearance and Subordinated Indebtedness) of the Forbearance
Agreement is hereby amended to replace the date "May 3, 2000" as
it appears therein with the date "June 30, 2000" in lieu thereof.
(b) Subsidiary Obligors. Section 10.2 of the Forbearance
Agreement is hereby stricken and deleted and replaced with the
following:
"10.2 Cwmbran Property. On the date of
execution of the Second Amendment to Forbearance
Agreement and Credit Agreement, the Borrowers
shall cause the Net Transfer Payments of any sale,
transfer, lien, or conveyance of any real estate
owned by any subsidiary of any Borrower to be
distributed to the Agent, for application as
follows:
(a) $739,848.85 (as of May 15, 2000, exclusive
of $127,629.99 of Incremental interest
attributable to increasing the applicable rate
to the Default Rate from and after August 22,
1999) for application to accrued but unpaid
interest on the Loans;
(b) $24,657.73, as payment of the late charges due from
the Net Transfer Proceeds of the sale of the real
estate in Cwmbran, Wales (described above);
(c) $100,000, as payment of the Amendment Fee
payable under the Amendment to Forbearance
Agreement and Credit Agreement dated as of
March 31, 2000;
(d) $100,000, as payment of the Second
Amendment Fee payable under the Second
Amendment to Forbearance Agreement and Credit
Agreement dated as of May 3, 2000;
(e) $100,000, as payment of the 2000 Reserve,
as further defined in Section 4 below, payable
under the Second Amendment to Forbearance
Agreement and Credit Agreement dated as of May
3, 2000;
(f) $17,000, as reimbursement for the fees of
counsel to the Agent;
(g) $56,178, as reimbursement for the fees of
counsel to the Borrowers;
(hg) $48,404.53, as reimbursement for the fees of the
consultant to the Agent; and
(ih) $994,318.62913,482.89, for application to
the principal amount outstanding on the Term
Loans, distributed between Term Loan A and Term
Loan B on a pro rata basis (52.18% to Term Loan
A in reverse order of maturity and 47.82% to
Term Loan B in reverse order of maturity).
The Borrowers shall deliver a certified written
statement in form and substance satisfactory to
the Agent demonstrating how the amount of the Net
Transfer Payments was calculated."
3. Amendment Fee. The Borrowers acknowledge and agree that, as
consideration for the Agent's and Lenders' agreements and
commitments hereunder, the Borrowers shall pay an amendment fee
in the amount of $200,000 (the "Second Amendment Fee") to the
Agent on the Forbearance Termination Date, for distribution pro
rata to the Lenders in accordance with the amount of their
Commitments, which fee shall be fully earned as of the execution
of this Amendment by the Agent and each of the Lenders. The first
$100,000 of the Second Amendment Fee (the "Unconditional First
InstallmentSecond Amendment Fee") shall be payable from the Net
Transfer Proceeds of the sale of the real estate in Cwmbran,
Wales (as described above) as of the execution of this Amendment
by the Agent and each of the Lenders, in addition to the $100,000
Amendment Fee (as defined in the Amendment to Forbearance
Agreement and Credit Agreement dated as of March 31, 2000. The
second $100,000 portion of the Second Amendment Fee not payable
from the Net Transfer Proceeds of the sale of the real estate in
Cwmbran, Wales (the "Second Installment"Conditional Second
Amendment Fee) shall be payable on the Forbearance Termination
Date, for distribution pro rata to the Lenders in accordance with
the amount of their Commitments. In the event that the Borrowers
are able to reduce the Lenders' aggregate outstandings, on a
permanent basis, to less than or equal to $15,000,000, by on or
before the first to occur of: (a) Forbearance Termination Date;
or (b) June 30, 2000, the Lenders shall waive payment of the
Conditional Second Amendment FeeSecond Installment.
4. Line of Credit Reserve. The Borrowers agree that the
Reserves under the Credit Agreement shall include, in addition to
any other Reserves established thereunder, a reserve of $100,000
(the "2000 Reserve"). The 2000 Reserve will be released only on
June 1, 2000, to permit the Borrowers to pay a portion of the
interest payment under the Credit Agreement that is due on June
1, 2000. The 2000 Reserve will not be released if the Borrowers
have not obtained, prior to June 1, 2000, written commitments in
form and substance satisfactory to the Lenders, from third
parties to purchase at least $15,000,000 in equity in WPI Group
or indebtedness of WPI Group that is to be subordinated to the
Obligations owed by the Borrowers to the Agent and the Lenders.
The Agent and the Lenders shall have no obligation to make the
2000 Reserve available for loans unless the Borrowers have
satisfied all other conditions precedent to obtaining such loans.
5. Denomination of Payments. The Borrowers may make all
payments required hereunder in British Pounds. With respect to
the Net Transfer Payments for the sale of the Cwmbran property,
the Borrowers shall remit a fixed amount of 1,372,269 British
Pounds. The exchange rate to be applied thereto to determine the
amount of such payment in United States Dollars for the purposes
of this Amendment shall be equal to $1.53 per British Pound, or,
alternatively, if so chosen by the Lenders in their sole and
absolute discretion, the daily exchange rate between United
States Dollars and British Pounds as quoted in the Currency
Trading table of The Wall Street Journal for the day on which
such payment is received by the Lenders.
65. Release of Claims. As of the date of the execution of
this Amendment, each Borrower hereby releases, waives, and
forever relinquishes all claims, demands, obligations,
liabilities and causes of action of whatever kind or nature,
whether known or unknown, which it has, may have, or might assert
against Agent or any Lender and/or their respective parents,
affiliates, participants, officers, directors, employees, agents,
attorneys, accountants, consultants, successors and assigns,
directly or indirectly, arising out of, based upon, or in any
manner connected with (i) any transaction, event, circumstance,
action, failure to act or occurrence of any sort or type, whether
known or unknown, which occurred, existed, was taken or permitted
prior to the execution of this Agreement with respect to the
Obligations, the Loan Documents and/or the administration thereof
or the obligations created thereby; (ii) any discussions,
commitments, negotiations, conversations or communications with
respect to the refinancing, restructuring or collection of any
Obligations; or (iii) any thing or matter related to any of the
foregoing. The inclusion of this paragraph in this Amendment,
and the execution of this Amendment by the Agent and the Lenders,
does not constitute an acknowledgment or admission by the Agent
or any Lender of liability for any matter, or a precedent upon
which liability may be asserted.
76. Conditions Precedent. The obligation of the Lenders to
enter into this Amendment is subject to satisfaction of the
condition precedent that the Borrowers shall execute and deliver,
or cause to be executed and delivered to Lender, the following on
or before the date hereof:
i. This Amendment, executed by all Borrowers,
together with all schedules and exhibits hereto;
ii. Receipt of the portion of the Net Transfer
Payments received from the sale of the real estate in Cwmbran,
Wales, as required by Section 10.2 of the Forbearance Agreement
(as amended hereby), together with a certified written statement
in form and substance satisfactory to the Agent demonstrating how
the amount of the Net Transfer Payments was calculated;
iii. evidence that the execution, delivery and
performance of this Amendment and the Forbearance Agreement by
the Borrowers have been duly authorized by all necessary
corporate action, including incumbency certificates of each
Borrower, with authorizing resolutions and certified copies of
articles of organization and by-laws, all in a form satisfactory
to the Agent and all Lenders and their counsel;
iv. evidence of insurance coverage required by Section
14(e)(iv) of the Forbearance Agreement;
v. evidence of payment of all outstanding property
taxes;
vi. an opinion of counsel satisfactory to the Agent
and the Lenders that this Amendment and the Forbearance
Agreement represents the legal, valid, and binding
obligation of the Borrowers, enforceable against them in
accordance with its terms; and
vii. payment of all of the Lender's reasonable
attorney's and consultant's fees through the date of execution
hereof.
87. Confirmation of Representations and Warranties. Each
representation and warranty contained in the Amendment and the
other Loan Documents remains accurate, complete and not
misleading in any material respect on the date of this Amendment,
except for representations and warranties that explicitly relate
to an earlier date. Each Borrower acknowledges and agrees that
it is unconditionally liable for the full, prompt and complete
performance and payment of all Obligations arising under the Loan
Documents or otherwise, without defenses, counterclaims or
setoffs of any kind or nature. The Agent and the Lenders, by
entering into this Amendment, do not waive any rights and
remedies they may have under the Loan Documents or otherwise,
including, without limitation, arising or resulting from any
existing Default or Event of Default, and all of such rights and
remedies are hereby expressly reserved.
98. Authority. Each Borrower represents and warrants that it
is a corporation duly organized and in good standing under the
laws of its state or other jurisdiction of incorporation and is
duly qualified as a foreign corporation and in good standing in
all states or other jurisdictions where the nature and extent of
the business transacted by it or the ownership of assets makes
such qualification necessary, except for those jurisdictions in
which the failure to so qualify would not have a material adverse
effect on the financial condition, results of operation or
businesses of such Borrower or the rights of the Agent and
Lenders hereunder or under any of the other Loan Documents. Each
Borrower represents and warrants that the execution, delivery and
performance of this Amendment is within the corporate powers of
such Borrower, has been duly authorized and are not in
contravention of law or the terms of the certificates of
incorporation, by-laws, or other organizational documentation of
such Borrower, or any indenture, agreement or undertaking to
which such Borrower is a party or by which such Borrower or its
property are bound. Each Borrower represents and warrants that
this Amendment constitutes the legal, valid and binding
obligation of the Borrowers enforceable in accordance with its
terms.
109. Miscellaneous. This Amendment shall be deemed to be a
Loan Document. This Amendment supersedes all prior
correspondence and discussions relating to the subject matter
hereof. This Amendment shall be governed and construed under the
laws of the State of New Hampshire and is subject to all the
rights and waivers, including the waiver of jury trial, set forth
in the Loan Documents. Except as expressly set forth herein,
each Borrower confirms that the Loan Documents have not been
amended or modified and, as amended hereby, continue in full
force and effect.
11. Counterparts. This Agreement may be executed in
counterparts each of which shall be an original and all of which
taken together shall constitute one and the same document.
Executed as an instrument under seal by the parties or their
respective duly authorized officers as of the date first written
above.
BORROWERS:
WPI GROUP, INC.
WPI POWER SYSTEMS, INC.,
WPI MAGNETEC, INC.
WPI ELECTRONICS, INC.,
WPI OYSTER TERMIFLEX, INC.,
WPI MICRO PALM, INC.
WPI MICRO PROCESSOR SYSTEMS, INC.
WPI DECISIONKEY, INC.,
WPI UK HOLDING, INC.,
WPI UK HOLDING II, INC.,
WPI OYSTER TERMINALS, INC.,
WPI HUSKY TECHNOLOGY, INC., and
WPI INSTRUMENTS, INC.
____________________________ By: /s/ John Allard
____ Witness John Allard, for, on behalf of,
and as Duly Authorized Officer
or Agent of each of the above-
named entities
AGENT AND LENDER:
FLEET NATIONAL BANK f/k/a Fleet
Bank-NH, as Agent and as a Lender
____________________________ By: /s/ Daniel D. Butler
____ Witness Name:_Daniel D. Butler
Title: _Banking Officer
OTHER LENDERS:
KEY CORPORATE CAPITAL INC.
____________________________ By: /s/ Mark KLeinhaut
____ Witness Name:_Mark Kleinhaut
Title: _Vice President
SOVEREIGN BANK
____________________________ By: /s/ Joseph Becker
____ Witness Name:_Joseph Becker
Title: _Senior Vice President
BANK OF NEW HAMPSHIRE
____________________________ By: /s/ David D. McGraw
____ Witness Name:_David D. McGraw
Title: _Vice President
FLEET NATIONAL BANK
f/k/a BANKBOSTON, N.A.
____________________________ By: /s/ Daniel D. Butler
____ Witness Name:_Daniel D. Butler
Title: Authorized Officer
SCHEDULE A
(Schedule of Obligations)*
Loans Unpaid Unpaid Late Incremental
Principal Interest Charges interest
as of May (other than as of attributable to
15, 2000 the May 15, increasing the
incremental 2000 applicable rate
interest to the Default
attributabl Rate from and
e to after August
increasing 22, 1999, as of
the May 15, 2000
applicable
rate to the
Default
Rate from
and after
August 22,
1999) as of
May 15,
2000
Revolving $4,480,848.87 $122,500.60 $8,685.16 $21,003.10
Loans
Swing Line $0.00 $3,324.08 $168.03 $647.35
Loans
Term Loan A $12,307,316.30 $314,342.35 $8,113.56 $55,298.63
Term Loan B $11,279,594.39 $299,681.82 $7,690.98 $50,680.91
* Plus any attorneys' fees or other expenses subject to
reimbursement by the Borrowers, whether incurred before or after
the date hereof, and any subsequently accruing interest, costs,
fees, or charges, and all figures are subject to adjustments to
the Agent's or any Lender's records with respect to such
Obligations, including, without limitation, adjustments for
uncollected checks and misdirected credits.
Exhibit 10.2
as of June 30, 2000
Fleet National Bank Bank of New Hampshire
1155 Elm Street 333 State Street
Manchester, NH 03101 Portsmouth, NH 03801
Attn: Daniel D. Butler, Attn: David D. McGraw,
Vice President Vice President
Sovereign Bank Key Corporate Capital
50 Rowes Wharf-Suite 430 One Canal Plaza-Sixth
Boston, MA 02110 Floor
Attn: Joseph Becker, Portland, ME 04101
Vice President Attn: Mark Kleinhaut,
Vice President
Re: Third Amendment to Forbearance Agreement and Credit
Agreement
Gentlemen:
Reference is made to that Forbearance Agreement made as of
the 24th day of January, 2000, as amended (as amended, the
"Agreement") by and between, on one hand, WPI GROUP, INC., WPI
ELECTRONICS, INC., WPI MAGNETEC, INC., WPI MICRO PALM, INC., WPI
POWER SYSTEMS, INC., WPI TERMIFLEX, INC. f/k/a WPI Termiflex,
Inc., WPI MICRO PROCESSOR SYSTEMS, INC., WPI DECISIONKEY, INC.,
WPI UK HOLDING II, INC., WPI OYSTER TERMINALS, INC., WPI
INSTRUMENTS, INC., each a New Hampshire corporation, WPI HUSKY
TECHNOLOGY, INC. f/k/a WPI Husky Computers, Inc., a Florida
corporation (collectively, the "Borrowers"), FLEET NATIONAL BANK
f/k/a Fleet Bank-NH, KEY CORPORATE CAPITAL INC., SOVEREIGN BANK,
BANK OF NEW HAMPSHIRE, FLEET NATIONAL BANK f/k/a BankBoston, N.A.
(each, individually, a Lender, and collectively, the "Lenders"),
and FLEET NATIONAL BANK f/k/a Fleet Bank-NH, as Agent for the
Lenders (the "Agent"), and the Credit Agreement dated as of
August 3, 1998 among the Borrowers, the Agent, and the Lenders.
All capitalized terms used herein that are not otherwise
specifically defined herein shall have the meanings given such
terms in the Forbearance Agreement.
The Borrowers have requested that Lenders extend the
Forbearance Period under the Agreement, and the Lenders have
agreed to do so, on the terms and subject to the conditions
hereof.
1. Acknowledgment of Obligations.
(b) By Borrowers. Each Borrower hereby acknowledges that it is
unconditionally liable to the Lenders for the full and immediate
payment of each of the obligations set forth at Schedule A hereto
and incorporated herein by reference, plus all reasonable
attorneys' fees and costs of collection incurred or that may be
incurred in connection with such obligations by the Agent or the
Lenders, and Borrowers are unconditionally liable to Lenders to
pay and perform each of the other liabilities and obligations
that may now or hereafter arise under the various documents
executed or delivered by any Borrower evidencing or relating to
such obligations (collectively, the "Loan Documents")
(hereinafter all such obligations are referred to as the
"Obligations"), and that no Borrower has any defenses,
counterclaims or set-offs with respect to the full and immediate
payment of any or all Obligations. To the best of their
knowledge and without providing any opinion as to any legal
issue, each Borrower hereby acknowledges and agrees that all of
the Obligations, and each of them, are secured by valid and
perfected, first priority liens and security interests in all of
the Collateral enforceable against the Borrowers in accordance
with their terms, provided, however, that each Borrower covenants
and agrees that, to the extent that the Obligations are not
secured by valid and perfected, first priority liens and security
interests in all of the Collateral enforceable against the
Borrowers in accordance with their terms, the Borrowers shall at
their expense and upon Agent's request, duly execute and deliver,
or cause to be duly executed or delivered, to Agent such further
instruments and do and cause to be done such further acts as may
be necessary or proper in the reasonable opinion of the Agent to
cause such Obligations to be secured by valid and perfected,
first priority liens and security interests in all of the
Collateral enforceable against the Borrowers in accordance with
their terms.
(b) No Further Commitments by Lender. The Borrowers
further acknowledge that the Agent and Lenders have no existing
commitments, obligations or agreements to advance credits or
loans or make other financial accommodations to the Borrowers
except as may be specifically set forth in the Forbearance
Agreement, as modified by this Amendment.
2. Amendment--Extension of Forbearance Period. Section 5(a)
(Forbearance and Subordinated Indebtedness) of the Forbearance
Agreement is hereby amended to replace the date "May 3, 2000" as
it appears therein with the date "July 31, 2000" in lieu thereof.
3. Line of Credit Reserve. The Borrowers agree that they did
not satisfy the conditions precedent to require the release of
the $100,000 2000 Reserve established under Section 4 of the
Second Amendment to Forbearance Agreement and Credit Agreement
dated as of May 3, 2000 (the "Second Amendment"), and that the
2000 Reserve therefore has not been released. The Borrowers have
requested, and the Agent and the Lenders have agreed that,
notwithstanding such failure, if the Sunrise Transaction Date (as
defined below) has occurred on or before the first to occur of:
(a) the Forbearance Termination Date; or (b) July 31, 2000, the
2000 Reserve shall be released (but the Agent and the Lenders
shall have no obligation to make the 2000 Reserve available for
loans unless the Borrowers have satisfied all other conditions
precedent to obtaining such loans). If on the other hand, the
Sunrise Transaction Date has not occurred by the first to occur
of the events specified in clauses (a) and (b) of this paragraph,
then the Agent may apply the 2000 Reserve toward the Obligations
as set forth in the Credit Agreement. The term "Sunrise
Transaction Date" as used herein, shall mean the date on which
the Borrowers have both: (a) reduced the Lenders' aggregate
outstandings, on a permanent basis, to less than or equal to
$17,500,000; and (b) obtained a commitment from Sunrise Capital
Partners LLC to loan an additional $2,500,000 to the Borrowers to
enable the Borrowers to reduce the Lenders' aggregate
outstandings, on a permanent basis, to less than or equal to
$15,000,000, on terms satisfactory to the Agent and the Lenders.
4. Amendment Fee. The Borrowers acknowledge and agree that, as
consideration for the Agent's and Lenders' agreements and
commitments hereunder, the Borrowers shall pay an amendment fee
of $100,000 (the "Third Amendment Fee") to the Agent, for
distribution pro rata to the Lenders in accordance with the
amount of their Commitments, which Third Amendment Fee shall be
fully earned by the Agent and the Lenders as of the execution of
this Amendment, and shall be payable in three installments, as
follows: (a) $25,000, on July 14, 2000; (b) $25,000, on July 21,
2000; and (c) $50,000, on July 31, 2000. In the event that the
Sunrise Transaction Date occurs, then the Agent and the Lenders
shall be deemed to have waived payment of those installments
under clause (a), (b), or (c) hereof that are scheduled to first
become due on or after the Sunrise Transaction Date.
5. Certain Default Interest. In the event that the Sunrise
Transaction Date occurs on or prior to July 31, 2000, then the
Agent and the Lenders shall be deemed to have waived, effective
as of the date of such reduction, the incremental interest
attributable to increasing the applicable rate to the Default
Rate that accrued, but is presently unpaid, from and after
February 24, 2000 through and including the Sunrise Transaction
Date. Nothing herein shall constitute a waiver or release of the
Agent's or Lenders' rights to retain any payment, including any
interest payment, that has already been made. If the Sunrise
Transaction Date does not occur on or prior to July 31, 2000, the
Loans shall continue to accrue interest at the Default Rate.
6. Release of Claims. As of the date of the execution of this
Amendment, each Borrower hereby releases, waives, and forever
relinquishes all claims, demands, obligations, liabilities and
causes of action of whatever kind or nature, whether known or
unknown, which it has, may have, or might assert against Agent or
any Lender and/or their respective parents, affiliates,
participants, officers, directors, employees, agents, attorneys,
accountants, consultants, successors and assigns, directly or
indirectly, arising out of, based upon, or in any manner
connected with (i) any transaction, event, circumstance, action,
failure to act or occurrence of any sort or type, whether known
or unknown, which occurred, existed, was taken or permitted prior
to the execution of this Agreement with respect to the
Obligations, the Loan Documents and/or the administration thereof
or the obligations created thereby; (ii) any discussions,
commitments, negotiations, conversations or communications with
respect to the refinancing, restructuring or collection of any
Obligations; or (iii) any thing or matter related to any of the
foregoing. The inclusion of this paragraph in this Amendment,
and the execution of this Amendment by the Agent and the Lenders,
does not constitute an acknowledgment or admission by the Agent
or any Lender of liability for any matter, or a precedent upon
which liability may be asserted.
7. Conditions Precedent. The obligation of the Lenders to
enter into this Amendment is subject to satisfaction of the
condition precedent that the Borrowers shall execute and deliver,
or cause to be executed and delivered to Lender, the following on
or before the date hereof:
i. This Amendment, executed by all Borrowers,
together with all schedules and exhibits hereto;
ii. Payment of $25,000, to reimburse the Agent for
its reasonable consultant's fees and reasonable
attorneys' fees.
iii. evidence that the execution, delivery and
performance of this Amendment and the Forbearance Agreement by
the Borrowers have been duly authorized by all necessary
corporate action, including incumbency certificates of each
Borrower, with authorizing resolutions and certified copies of
articles of organization and by-laws, all in a form satisfactory
to the Agent and all Lenders and their counsel;
iv. evidence of insurance coverage required by Section
14(e)(iv) of the Forbearance Agreement;
v. evidence of payment of all outstanding property
taxes; and
vi. an opinion of counsel satisfactory to the Agent
and the Lenders that this Amendment and the Forbearance
Agreement represents the legal, valid, and binding
obligation of the Borrowers, enforceable against them in
accordance with its terms.
8. Confirmation of Representations and Warranties. Each
representation and warranty contained in the Amendment and the
other Loan Documents remains accurate, complete and not
misleading in any material respect on the date of this Amendment,
except for representations and warranties that explicitly relate
to an earlier date. Each Borrower acknowledges and agrees that
it is unconditionally liable for the full, prompt and complete
performance and payment of all Obligations arising under the Loan
Documents or otherwise, without defenses, counterclaims or
setoffs of any kind or nature. The Agent and the Lenders, by
entering into this Amendment, do not waive any rights and
remedies they may have under the Loan Documents or otherwise,
including, without limitation, arising or resulting from any
existing Default or Event of Default, and all of such rights and
remedies are hereby expressly reserved.
9. Authority. Each Borrower represents and warrants that it is
a corporation duly organized and in good standing under the laws
of its state or other jurisdiction of incorporation and is duly
qualified as a foreign corporation and in good standing in all
states or other jurisdictions where the nature and extent of the
business transacted by it or the ownership of assets makes such
qualification necessary, except for those jurisdictions in which
the failure to so qualify would not have a material adverse
effect on the financial condition, results of operation or
businesses of such Borrower or the rights of the Agent and
Lenders hereunder or under any of the other Loan Documents. Each
Borrower represents and warrants that the execution, delivery and
performance of this Amendment is within the corporate powers of
such Borrower, has been duly authorized and are not in
contravention of law or the terms of the certificates of
incorporation, by-laws, or other organizational documentation of
such Borrower, or any indenture, agreement or undertaking to
which such Borrower is a party or by which such Borrower or its
property are bound. Each Borrower represents and warrants that
this Amendment constitutes the legal, valid and binding
obligation of the Borrowers enforceable in accordance with its
terms.
10. Miscellaneous. This Amendment shall be deemed to be a
Loan Document. This Amendment supersedes all prior
correspondence and discussions relating to the subject matter
hereof. This Amendment shall be governed and construed under the
laws of the State of New Hampshire and is subject to all the
rights and waivers, including the waiver of jury trial, set forth
in the Loan Documents. Except as expressly set forth herein,
each Borrower confirms that the Loan Documents have not been
amended or modified and, as amended hereby, continue in full
force and effect.
11. Counterparts. This Agreement may be executed in
counterparts each of which shall be an original and all of which
taken together shall constitute one and the same document.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
Executed as an instrument under seal by the parties or their
respective duly authorized officers as of the date first written
above.
BORROWERS:
WPI GROUP, INC.
WPI POWER SYSTEMS, INC.,
WPI MAGNETEC, INC.
WPI ELECTRONICS, INC.,
WPI TERMIFLEX, INC. f/k/a WPI
Oyster Termiflex, Inc.
WPI MICRO PALM, INC.
WPI MICRO PROCESSOR SYSTEMS, INC.
WPI DECISIONKEY, INC.,
WPI UK HOLDING, INC.,
WPI UK HOLDING II, INC.,
WPI OYSTER TERMINALS, INC.,
WPI HUSKY TECHNOLOGY, INC., and
WPI INSTRUMENTS, INC.
____________________________ By: /s/ John Powers
Witness John Powers, for, on behalf of,
and as Duly Authorized Officer
or Agent of each of the above-
named entities
AGENT AND LENDER:
FLEET NATIONAL BANK f/k/a Fleet
Bank-NH, as Agent and as a Lender
____________________________ By: /s/ Daniel D. Butler
Witness Name:_Daniel D.Butler
Title:Banking Officer
OTHER LENDERS:
KEY CORPORATE CAPITAL INC.
____________________________ By: /s/ Mark Kleinhaut_
Name:_Mark Kleinhaut
Title: _Vice President
SOVEREIGN BANK
____________________________ By: /s/ Joseph Becker
____ Witness Name:_Joseph Becker
Title: _Senior Vice
President
BANK OF NEW HAMPSHIRE
____________________________ By: /s/ David D.McGraw
____ Witness Name:_David D. McGraw
Title: _Vice President
FLEET NATIONAL BANK
f/k/a BANKBOSTON, N.A.
____________________________ By: /s/ David D. Butler
____ Witness _______________________
Name:_David D. Butler
Butler___________________
Title: Authorized Officer
SCHEDULE A
(Schedule of Obligations)*
Loans Unpaid Unpaid Late Incremental
Principal Interest Charges interest
as of July (other than as of attributable to
6, 2000 the July 6, increasing the
incremental 2000 applicable rate
interest to the Default
attributabl Rate from and
e to after August
increasing 22, 1999, as of
the July 6, 2000
applicable
rate to the
Default
Rate from
and after
August 22,
1999) as of
July 6,
2000
Revolving $4,812,183.06 $86,155.47 $1,597.58 $33,716.33
Loans
Swing Line $0.00 $ 2,450.50 $65.6 $1,024.35
Loans
Term Loan A $11,809,445.76 $223,598.31 $4,446.72 $89,750.25
Term Loan B $10,823,324.38 $212,820.89 $4,232.75 $82,255.72
* Plus any attorneys' fees or other expenses subject to
reimbursement by the Borrowers, whether incurred before or after
the date hereof, and any subsequently accruing interest, costs,
fees, or charges, and all figures are subject to adjustments to
the Agent's or any Lender's records with respect to such
Obligations, including, without limitation, adjustments for
uncollected checks and misdirected credits.