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EXHIBIT 10.48
FIRST AMENDMENT TO FORBEARANCE AGREEMENT
This FIRST AMENDMENT TO FORBEARANCE AGREEMENT (the "AGREEMENT") dated
as of December 30, 1999 by and among FLEET NATIONAL BANK F/K/A FLEET NATIONAL
BANK OF CONNECTICUT F/K/A SHAWMUT BANK CONNECTICUT, N.A., a national banking
association with a place of business at 777 Main Street, Hartford, Connecticut
06115 ("LENDER"), EDAC TECHNOLOGIES CORPORATION, a Wisconsin corporation with a
principal place of business at 1806 New Britain Avenue, Farmington, Connecticut
06032 ("BORROWER"), APEX MACHINE TOOL COMPANY, INC., a Connecticut corporation
with a mailing address c/o Borrower at 1806 New Britain Avenue, Farmington,
Connecticut 06032 ("APEX") and GROS-ITE INDUSTRIES, INC., a Connecticut
corporation with a mailing address c/o Borrower at 1806 New Britain Avenue,
Farmington, Connecticut 06032 ("GROS-ITE" and collectively with Apex,
"GUARANTOR").
RECITALS
On October 3, 1985, Lender and Borrower entered into a certain
Revolving Loan and Security Agreement which has been amended and restated 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 Lender, 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 amended and in effect from time to time, the "LOAN
AGREEMENT").
Pursuant to the Loan Agreement, the Lender has made: (i) a
$13,000,000.00 revolving loan (the "REVOLVING LOAN") as evidenced by a certain
Second Amended and Restated Revolving Promissory Note dated as of June 30, 1998
(the "REVOLVING NOTE"), (ii) a $14,000,000.00 term loan (the "Acquisition Term
Loan") as evidenced by a certain Term Promissory Note dated June 30, 1998 (the
"ACQUISITION TERM NOTE"), (iii) a $541,153.34 term loan (the "CONSOLIDATED
EQUIPMENT LOAN") as evidenced by a certain Amended and Restated Promissory Note
dated March 27, 1997 (the "CONSOLIDATED EQUIPMENT NOTE"), (iv) a $4,000,000.00
term loan (the "TERM LOAN") as evidenced by a certain Term Promissory Note dated
March 22, 1993 (the "TERM NOTE"), (v) a
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$1,000,000.00 construction to permanent loan (the "CONSTRUCTION LOAN") as
evidenced by a certain Construction to Permanent Loan Promissory Note dated July
31, 1995 (the "CONSTRUCTION NOTE"), (vi) a $3,000,000.00 equipment loan (the
"THIRD EQUIPMENT LOAN") as evidenced by a certain Equipment Promissory Note III
dated as of March 27, 1997 (THE "THIRD EQUIPMENT NOTE") and (vii) a $3,000,000
equipment loan (the "FOURTH EQUIPMENT LOAN") as evidenced by a certain Equipment
Promissory Note IV dated as of May 22, 1998 (the "FOURTH EQUIPMENT NOTE" and
collectively with the Revolving Note, Acquisition Term Note, Consolidation
Equipment Note, Term Note, Construction Note and Third Equipment Note, the
"NOTES").
On October 29, 1999, Lender, Borrower and Guarantors entered into a
Forbearance Agreement (as amended and in effect from time to time, the
"FORBEARANCE AGREEMENT") pursuant to which certain provisions of the Loan
Documents were modified during the Forbearance Period (as defined therein) and
Lender agreed to forbear from exercising its rights and remedies as a result of
the existence and continuance of certain Events of Default under the Loan
Documents.
Each Guarantor has guaranteed the obligations of Borrower under the
Loan Agreement and Notes, pursuant to their respective Guaranties (collectively,
"GUARANTY").
The Borrower acknowledges that it is unconditionally indebted to Lender
with respect to its respective debts more particularly described on Exhibit A
attached hereto (the "INDEBTEDNESS"), plus interest accrued and accruing thereon
and costs and expenses of collection, including without limitation, reasonable
attorneys' fees. Additionally, the Borrower acknowledges that it has no defense,
offset or counterclaim to its obligations in respect of the Indebtedness and
further that it has no other claim whatsoever against Lender (whether arising in
contract, tort or otherwise) with respect to, or arising out of, the
Indebtedness. The outstanding principal amount of the Indebtedness as of
December 28, 1999 is $27,125,969.42.
Hereinafter, this Agreement, the Forbearance Agreement, the Loan
Agreement, the Notes, the Guaranty and all other documents evidencing, relating
or securing the Indebtedness (as defined below) (collectively, the "LOAN
DOCUMENTS") all instruments, documents and agreements executed by the Borrower,
Guarantor or any other party in connection herewith, and all amendments and
modifications to any of the foregoing, including without limitation those
contained in paragraph D hereof, are sometimes collectively referred to
hereinafter as the "LOAN AND FORBEARANCE DOCUMENTS". Capitalized terms used in
this Agreement but not otherwise defined shall have the meanings given to such
terms in the Loan Agreement.
The Borrower and Guarantor acknowledge and affirm that (a) Borrower is
in default in the performance of its obligations under the Loan Agreement, the
Forbearance Agreement, the Notes and the Loan Documents by virtue of Borrower's
past and continuing failure to comply with the financial covenants set forth in
Sections 10 and 13 of Exhibit A of the Loan Agreement, and (b) as a result of
the aforesaid defaults, Lender has the full and unrestricted right to declare
all of the Indebtedness to be immediately due and payable and to commence
proceedings for its collection.
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The Borrower and Guarantor have requested, and Lender has agreed,
subject to the terms and conditions set forth herein: (a) to extend the
Forbearance Termination Date until April 30, 2000; (b) to waive the
non-compliance by Borrower with the financial covenant set forth in
paragraph E(xi) of the Forbearance Agreement; and (c) to make certain other
changes to the terms and conditions of the Loan Agreement. Lender has agreed to
grant the requested accommodations subject to the express agreements and
conditions set forth below and provided further that: (i) there is no further
material adverse change in the business or financial condition of the Borrower
or Guarantor after the date hereof; (ii) there is no material adverse change in
the value, extent or condition of any of the collateral or other property
granted to Lender to secure any or all of the Indebtedness after the date
hereof; (iii) the Borrower and Guarantor shall perform and comply with, as and
when required, time being of the essence in all respects, all of the respective
agreements, covenants and obligations set forth in the Loan and Forbearance
Documents; (iv) except for the defaults described above, no default or event of
default (howsoever defined) under any of the other Loan and Forbearance
Documents, shall occur or exist under any of the Loan and Forbearance Documents,
it being further agreed and understood that from and after the date hereof all
cure and grace periods and/or requirements for prior notice or demand, if any,
which are currently allowed or must be satisfied prior to an event being deemed
a default or event of default (howsoever defined) under any of the Loan and
Forbearance Documents are hereby waived by the Borrower and Guarantor and are of
no further force and effect; (v) no other party takes any action against the
Borrower and Guarantor or against any of the collateral or other property
granted to Lender to secure any or all of the Indebtedness which in Lender's
sole judgment will have a material adverse impact upon Lender's right or ability
to repossess, attach or execute upon any of such collateral or other property;
(vi) the Borrower and Guarantor shall not make any assignment for the benefit of
creditors or similar action or be the subject, voluntarily or involuntarily, of
any bankruptcy, insolvency, reorganization or other similar proceeding; (vii)
the Borrower and Guarantor shall not have misrepresented any material fact to,
or committed any fraud upon, Lender; (viii) all information and documents
delivered by or on behalf of the Borrower and Guarantor to Lender shall be true
and complete in all material respects; and (ix) Borrower and Guarantor shall
have paid all outstanding legal fees and expenses of its counsel incurred in
connection with the Loan Documents ((i), (ii), (iii), (iv), (v), (vi), (vii),
(viii), and (ix) being hereafter referred to individually as a "FORBEARANCE
CONDITION" and collectively as the "FORBEARANCE CONDITIONS").
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree, represent and warrant as follows:
A. If Borrower meets all of the terms and conditions of this Agreement
and the Loan Documents as revised, and no Event of Default shall have occurred,
Lender shall consider entering, but shall not be obligated to enter, into a
longer-term renewal of one or more of the Loans, upon terms and conditions
satisfactory to Lender in its sole discretion, with Borrower.
B. The Borrower and each Guarantor (i) represents and warrants to
Lender that: (1) it has the requisite corporate power to enter into this
Agreement and the transactions contemplated herein, and has taken all necessary
corporate action to authorize this Agreement and the transactions
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contemplated herein; and (2) the Loan and Forbearance Documents to which it is a
party constitute the legal, valid and binding obligations of the Borrower,
enforceable against it in accordance with their respective terms and (ii)
confirms that all of its representations and warranties contained in the Loan
Agreement are true and correct as of the date hereof, except to the extent that
any of the same relate to a prior specific date or event.
C. So long as the Forbearance Conditions are and continue to be
satisfied, Lender agrees (1) to forbear from acceleration and collection of the
Indebtedness during the Forbearance Period, and (2) subject to the terms and
conditions set forth in the Loan Agreement and to the additional conditions set
forth in this Agreement, to continue to make advances under the Revolving Credit
Loan available for borrowing by the Borrower during the Forbearance Period,
except that notwithstanding anything to the contrary contained in the Loan
Agreement or any of the other Loan and Forbearance Documents, the Borrower and
Guarantor acknowledge and agree that commencing on the date hereof and
continuing until Lender otherwise agrees in writing: (i) upon (A) the failure of
any of the Forbearance Conditions to be satisfied or to continue to be
satisfied, or (B) the expiration of the Forbearance Period, all Indebtedness and
other sums due from the Borrower and Guarantor to Lender under the Loan and
Forbearance Documents shall automatically and immediately be due and payable
without further notice or demand and Lender shall have the right to exercise,
without further notice or demand, any and all rights and remedies available to
it under the Loan and Forbearance Documents and at law or equity; and (ii)
Lender shall have no obligation to enter into or consider any restructuring of,
or any other accommodation with respect to any of the Indebtedness upon the
failure of any Forbearance Condition to be satisfied or upon the expiration of
the Forbearance Period.
D. The Forbearance Agreement shall be deemed to be amended as follows:
(i) Section 21 of Exhibit "A" of the Loan Agreement is hereby
deleted and replaced with the following;
21. Operating Profit. Maintain an operating profit (excluding
extraordinary expenses incurred in connection with the severance
of Borrower's former Chief Executive Officer and expenses
incurred in connection with the recruitment of senior
management, provided such exclusions shall not exceed
$1,100,000.00 in the aggregate) for each of the periods
commencing, in each case, on January 1, 2000 and ending on the
dates set forth below of not less than the following:
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Minimum
Periods Ending Operating Profit
January 31, 2000 $ 150,000
February 29, 2000 $ 300,000
March 31, 2000 $ 750,000
April 30, 2000 $1,000,000
(ii) Section 22 of Exhibit "A" of the Loan Agreement is hereby
deleted and replaced with the following:
22. Minimum Availability. Borrower shall maintain a minimum
difference between the Borrowing Base and outstanding principal
balance of the Revolving Loan of (a) for the weeks ending
January 28, 2000, March 3, 2000, March 31, 2000 and April 28,
2000, $1,250,000.00 and (b) at all other times, $500,000.
(iii) The Forbearance Termination Date is extended until April 30,
2000.
E. Lender shall perform updated appraisals of Borrower and Guarantor's
inventory, machinery and equipment. Borrower shall, on the earliest to occur of
(i) January 15, 2000 or (ii) the completion of such appraisals, pay to Lender a
$12,500 appraisal fee.
F. All Exhibits to the Loan Agreement, the Notes and the other Loan and
Forbearance Documents are hereby amended in such a manner as to be consistent
with all amendments made hereby and contained herein.
G. As a further inducement to Lender to enter into this Agreement and
to grant the accommodations hereunder, Borrower agrees to pledge to Lender, not
later than January 31, 2000, pursuant to stock pledge agreements and stock
powers satisfactory to Lender, in its sole discretion, all of the issued and
outstanding capital stock of Guarantor.
H. To induce the Lender to enter into this Amendment, each Guarantor
hereby (a) consents to this Amendment and (b) affirms and ratifies its Guaranty
with respect to the Loans, the Loan Agreement and the other Loan and Forbearance
Documents as amended hereby, and confirms that (i) each Guarantor does
irrevocably and unconditionally guarantee to the Lender the payment and
performance from the Borrower of the Obligations (as defined in each Guaranty)
from the Borrower to the Lender, upon the terms and conditions set forth in the
respective Guaranty, (ii) the
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term Obligations includes, without limitation, this Agreement the Forbearance
Agreement, the Term Loan, the Construction Loan, the Consolidated Equipment
Loan, the Third Equipment Loan, the Fourth Equipment Loan, the Revolving Loan
and the Acquisition Term Loan, and (iii) each Guaranty remains in full force and
effect.
I. As a further inducement to Lender to enter into this Agreement and
to grant the accommodations contained herein, effective on the date hereof, the
Borrower does hereby release, acquit and forever discharge Lender, its
respective representatives, parent, subsidiaries, affiliates, officers,
directors, agents, employees, servants, attorneys and representatives, as well
as the respective personal representatives, successors and assigns of any and
all of them (collectively, the "RELEASED LENDER PARTIES"), from and against any
and all claims (including without limitation, any so-called "lender liability"
claims or defenses), demands, debts, actions, causes of action, suits,
contracts, agreements, obligations, accounts, defenses, offsets against any of
the Indebtedness, and liabilities of any kind or character whatsoever, known or
unknown, suspected or unsuspected, in contract or in tort, at law or in equity,
including without implied limitation, such claims and defenses as fraud,
mistake, failure of consideration and duress, which the Borrower and/or anyone
claiming by or through any of them ever had, now has, or might hereafter have
against any of the Released Lender Parties for or by reason of any matter, cause
or thing whatsoever occurring from the beginning of time through and including
the date hereof which relates to, in whole or in part, directly or indirectly:
(a) any of the Indebtedness, (b) any of the Loan and Forbearance Documents; (c)
any of the collateral or other property granted to Lender as security for any of
the Indebtedness; or (4) the administration of any of the Indebtedness or
conduct of Lender or of any of the other Released Lender Parties. In addition,
the Borrower agrees not to commence, join in, assist, prosecute or participate
in any suit or other proceeding against any of the Released Lender Parties
relating directly or indirectly to any of the foregoing matters (including
without limitation the Loan and Forbearance Documents) or otherwise contrary to
the provisions set forth above,
J. The Borrower acknowledges and agrees that a default under any of the
Loan and Forbearance Documents shall constitute a default under the other Loan
and Forbearance Documents.
K. LENDER, BORROWER AND GUARANTOR EXPRESSLY WAIVE TRIAL BY JURY IN ANY
COURT AND IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION
WITH OR IN ANY WAY RELATED TO THE FINANCING TRANSACTIONS OF WHICH THE LOAN AND
FORBEARANCE DOCUMENTS ARE A PART AND/OR THE ENFORCEMENT OF ANY OF LENDER'S
RIGHTS AND REMEDIES THEREUNDER, INCLUDING WITHOUT LIMITATION, TORT CLAIMS.
L. BORROWER AND GUARANTOR ACKNOWLEDGE THAT THE TRANSACTIONS EVIDENCED
BY THE LOAN AND FORBEARANCE DOCUMENTS AND AS CONTEMPLATED BY THIS AGREEMENT ARE
COMMERCIAL TRANSACTIONS AND WAIVE THEIR RESPECTIVE RIGHTS TO NOTICE AND HEARING
UNDER CHAPTER 903a OF THE CONNECTICUT GENERAL STATUES, OR AS OTHERWISE ALLOWED
BY THE LAW OF ANY STATE OR FEDERAL LAW WITH
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RESPECT TO ANY PREJUDGMENT REMEDY WHICH LENDER MAY DESIRE TO USE, AND FURTHER
WAIVE THEIR RESPECTIVE RIGHT TO REQUEST THAT LENDER POST A BOND, WITH OR WITHOUT
SURETY, TO PROTECT BORROWER AND/OR GUARANTOR AGAINST DAMAGES THAT MAY BE CAUSED
BY ANY PREJUDGMENT REMEDY SOUGHT OR OBTAINED BY LENDER BY VIRTUE OF ANY DEFAULT
OR PROVISION OF THIS AGREEMENT OR ANY OF THE OTHER LOAN AND FORBEARANCE
DOCUMENTS.
M. EACH OF BORROWER AND GUARANTOR ACKNOWLEDGE THAT IT MAKES THE WAIVERS
SET FORTH HEREIN KNOWINGLY, VOLUNTARILY AND WITHOUT DURESS AND ONLY AFTER
EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THOSE WAIVERS WITH ITS
ATTORNEYS. EACH OF BORROWER AND GUARANTOR FURTHER ACKNOWLEDGE THAT LENDER HAS
NOT AGREED WITH OR REPRESENTED TO BORROWER, GUARANTOR OR ANY OTHER PARTY HERETO
THAT THE PROVISIONS HEREIN WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
N. The Borrower agrees to pay all current and past due costs and
expenses incurred by Lender, including without limitation, attorneys' fees, in
connection with the preparation, negotiation, administration and enforcement of
this Agreement and the transactions contemplated herein. Nothing herein shall be
construed to limit the Borrower' obligation to pay fees, costs and expenses
pursuant to the terms of the Loan and Forbearance Documents.
O. Borrower and Guarantor shall from time to time execute and deliver
such additional documents and take such additional actions and shall provide
such additional information as Lender may reasonably require to carry out the
terms and conditions of this Agreement.
P. This Agreement and the other Loan and Forbearance Documents
constitute the entire understanding and agreement among the parties hereto and
supersede any prior or contemporaneous written or oral understanding with
respect to the subject matter hereof. Except as expressly modified herein, the
Loan and Forbearance Documents remain unmodified and in full force and effect in
accordance with their terms.
Q. This Agreement and the other Loan and Forbearance Documents, and all
transactions, assignments and transfers hereunder and thereunder, and all the
rights of the parties, shall be governed as to validity, construction,
enforcement and in all other respects by the laws of the State of Connecticut
(but not its conflicts of law provisions).
R. This Agreement may be executed in any number of counterparts, each
of which shall constitute an original and all of which, when taken together,
shall constitute one instrument.
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S. Nothing therein shall be construed to be a waiver of any
requirements of the Loan Agreement or the other Loan and Forbearance Documents.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
LENDER:
FLEET NATIONAL BANK
By: /s/ Edgar Ezerins
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Edgar Ezerins
Its Vice President
(Duly Authorized)
BORROWER:
EDAC TECHNOLOGIES CORPORATION
By: /s/ Ronald G. Popolizio
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Ronald G. Popolizio
Its Vice President
(Duly Authorized)
GUARANTORS:
GROS-ITE INDUSTRIES, INC.
By: /s/ Ronald G. Popolizio
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Ronald G. Popolizio
Its Vice President
(Duly Authorized)
APEX MACHINE TOOL COMPANY,
INC.
By: /s/ Ronald G. Popolizio
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Ronald G. Popolizio
Its Vice President
(Duly Authorized)
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EXHIBIT A
NAME OF LOAN OUTSTANDING
BALANCE AS OF
12/28/99
Revolving Credit Loan $ 5,745,292.36
Acquisition Term Loan $13,500,000.02
Term Loan $ 2,736,497.27
Construction Loan $ 733,333.12
Third Equipment Loan $ 1,950,000.00
Consolidated Equipment Loan $ 252,513.34
Fourth Equipment Loan $ 2,208,333.31
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