EXHIBIT 10.40
FORBEARANCE AND CONSENT AGREEMENT
FORBEARANCE AND CONSENT AGREEMENT, dated as of November 26, 2002, by
and between EDAC TECHNOLOGIES CORPORATION, a Wisconsin corporation ("Leading
Borrower"), APEX MACHINE TOOL COMPANY, INC, a Connecticut corporation ("Second
Borrower") (Leading Borrower and Second Borrower being collectively referred to
as "Borrowers" and each a "Borrower") and GENERAL ELECTRIC CAPITAL CORPORATION,
a Delaware corporation ("Lender").
WITNESSETH:
WHEREAS, Lender and Borrowers have entered into certain financing
arrangements pursuant to the Loan and Security Agreement, dated as of September
29, 2000 by and between Lender and Borrowers (and as amended hereby, and as the
same may have heretofore been or may hereafter be further amended, modified,
supplemented, extended, renewed, restated or replaced, the "Loan Agreement", and
together with all agreements, documents and instruments at any time executed
and/or delivered in connection therewith or related thereto, collectively, the
"Financing Agreements"); and
WHEREAS, as of the date hereof, Borrowers are in default under the
Financing Agreements as more particularly described below; and
WHEREAS, the circumstances described herein constitute multiple Events
of Default under the Loan Agreement and the other Financing Agreements; and
WHEREAS, Borrowers have requested that Lender forbear from exercising
its rights as a result of such Events of Default, which are continuing, and that
Lender provide further Revolving Credit Loans and other financial accommodations
to Borrowers notwithstanding such Events of Default; and
WHEREAS, Lender is willing to agree to forbear from exercising certain
of its rights and remedies and provide certain further Revolving Credit Loans
and other financial accommodations to Borrowers for the period and on the terms
and conditions specified herein;
NOW, THEREFORE, in consideration of the foregoing, and the respective
agreements, warranties and covenants contained herein, the parties hereto agree,
covenant and warrant as follows:
SECTION 1 DEFINITIONS
1.1 INTERPRETATION. All capitalized terms used herein (including the
recitals hereto) shall have the respective meanings assigned thereto in the Loan
Agreement unless otherwise defined herein.
1.2 ADDITIONAL DEFINITIONS. As used herein, the following terms shall
have the respective meanings given to them below and the Loan Agreement is
hereby amended to include, in addition and not in limitation, each of the
following definitions:
(a) "Existing Defaults" shall mean the Events of Default that
have occurred through the date hereof as more particularly identified on Exhibit
A hereto. In addition, Borrowers have informed Lender that they will not
maintain the required Minimum Fixed Charge Coverage Ratio for the Fiscal Quarter
ending December 31, 2002. Such failure shall be deemed an Existing Default for
purposes of this Agreement.
(b) "Forbearance Period" shall have the meaning set forth in
Section 3.2(a) hereof.
SECTION 2 ACKNOWLEDGMENT
2.1 ACKNOWLEDGMENT OF OBLIGATIONS. Borrowers hereby acknowledge,
confirm and agree that as of the close of business on November 25, 2002, (a)
Borrowers are jointly and severally indebted to Lender in respect of the
Revolving Credit Loan in the principal amount of $1,647,716.82, (b) Leading
Borrower is indebted to Lender in respect of Term Loan A-1 in the aggregate
principal amount of $2,400,620, and (iii) Second Borrower is indebted to Lender
in respect of Term Loan A-2 in the aggregate principal amount of $1,790,565. All
such Loans, together with interest accrued and accruing thereon, and fees,
costs, expenses and other charges now or hereafter payable by Borrowers to
Lender, are unconditionally owing by Borrowers to Lender, without offset,
defense or counterclaim of any kind, nature or description whatsoever.
2.2 ACKNOWLEDGMENT OF SECURITY INTERESTS. Each Borrower hereby
acknowledges, confirms and agrees that Lender has and shall continue to have
valid, enforceable and perfected first-priority liens upon and security
interests in the Collateral heretofore granted to Lender pursuant to the
Financing Agreements or otherwise granted to or held by Lender.
2.3 BINDING EFFECT OF DOCUMENTS. Each Borrower hereby acknowledges,
confirms and agrees that: (a) each of the Financing Agreements to which it is a
party has been duly executed and delivered to Lender by Borrowers, and each is
in full force and effect as of the date hereof, (b) the agreements and
obligations of Borrowers contained in such documents and in this Agreement
constitute the legal, valid and binding Obligations of Borrowers, enforceable
against it in accordance with their respective terms, and no Borrower has any
valid defense to the enforcement of such Obligations, and (c) Lender is and
shall be entitled to the rights, remedies and benefits provided for in the
Financing Agreements and applicable law.
SECTION 3 FORBEARANCE IN RESPECT OF CERTAIN EVENTS OF DEFAULT
3.1 ACKNOWLEDGMENT OF DEFAULT. Each Borrower hereby acknowledges and
agrees that the Existing Defaults have occurred and are continuing, each of
which constitutes an Event of Default and entitles Lender to exercise its rights
and remedies under the Financing Agreements, applicable law or otherwise and
each Borrower further represents and warrants that as of the date hereof no
other Events of Default under the Financing Agreements exist. Lender has not
waived, presently does not intend to waive and may never waive such Existing
Defaults and nothing contained herein or the transactions contemplated hereby
shall be deemed to constitute any such waiver. Each Borrower hereby acknowledges
and agrees that Lender has the presently exercisable right to declare the
Obligations to be immediately due and payable under the terms of the Financing
Agreements.
3.2 FORBEARANCE.
(a) In reliance upon the representations, warranties and
covenants of Borrowers contained in this Agreement, and subject to the terms and
conditions of this Agreement and any documents or instruments executed in
connection herewith, Lender agrees to forbear from exercising its rights and
remedies under the Financing Agreements or applicable law in respect of or
arising out of the Existing Defaults, subject to the conditions, amendments and
modifications contained herein for the period (the "Forbearance Period")
commencing on the date hereof and ending on the earlier of: (i) March 10, 2003
or (ii) the occurrence or existence of any Event of Default, other than the
Existing Defaults.
(b) Upon the termination of the Forbearance Period, the
agreement of Lender to forbear shall automatically and without further action
terminate and be of no force and effect, it being expressly agreed that the
effect of such termination will be to permit Lender to exercise such rights and
remedies immediately, including, but not limited to, (i) ceasing to make any
further Loans and (ii) the acceleration of all of the Obligations; in either
case without any further notice, passage of time or forbearance of any kind.
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3.3 NO OTHER WAIVERS; RESERVATION OF RIGHTS.
(a) Lender has not waived, is not by this Agreement waiving,
and has no intention of waiving, any Events of Default which may be continuing
on the date hereof or any Events of Default which may occur after the date
hereof (whether the same or similar to the Existing Defaults or otherwise), and
Lender has not agreed to forbear with respect to any of its rights or remedies
concerning any Events of Default (other than, during the Forbearance Period, the
Existing Defaults to the extent expressly set forth herein), which may have
occurred or are continuing as of the date hereof or which may occur after the
date hereof.
(b) Subject to Section 3.2 above (solely with respect to the
Existing Defaults), Lender reserves the right, in its discretion, to exercise
any or all of its rights and remedies under the Loan Agreement and the other
Financing Agreements as a result of any Events of Default which may be
continuing on the date hereof or any Event of Default which may occur after the
date hereof, and Lender has not waived any of such rights or remedies, and
nothing in this Agreement, and no delay on its part in exercising any such
rights or remedies, should be construed as a waiver of any such rights or
remedies.
3.4 FEE. In consideration of the agreements set forth herein, Borrowers
shall pay to Lender a fee in the amount of $10,000, which fee shall be fully
earned as of the date hereof and payable contemporaneously with the execution of
this Agreement. Such fee is in addition to all other fees, interest, costs and
expenses payable in connection with the Financing Agreements and may be charged
by Lender to any account of Borrowers maintained by Lender. The fee shall be
fully earned by Lender notwithstanding any failure by any Borrower to comply
with any other term of this Agreement.
SECTION 4 CONSENT AND SUPPLEMENTARY PROVISIONS
4.1 WORKOUT CONSULTANT. Borrowers shall continue to retain Altman &
Company or such replacement consultant or "crisis manager" acceptable to
Borrowers and Lender. Borrowers shall fully cooperate with the consultant or
"crisis manager" so retained and shall authorize the consultant or "crisis
manager" to provide such information and reports from time to time with respect
to Borrowers and their financial condition, business, assets, liabilities and
prospects, as Lender shall from time to time request. All fees and expenses of
the consultant or "crisis manager" shall be solely the responsibility of
Borrowers and in no event shall Lender have any liability or responsibility for
the payment of any such fees or expenses, nor shall Lender have any obligation
or liability to Borrowers or any other person by reason of any acts or omissions
of the consultant or "crisis manager".
4.2 CONSENT.
(a) Lender informed Borrowers pursuant to letters from Lender
to Borrowers dated June 4, 2002 and July 15, 2002, that in addition to other
reserves established by Lender in accordance with the terms of the Loan
Agreement, Lender was establishing reserves against Borrowing Availability in an
aggregate amount of $700,000 ("Reserve Amount"). Lender continues to maintain a
reserve in an amount equal to the Reserve Amount and Borrowers have requested
that Lender reduce the Reserve Amount and Lender is agreeable to reduce the
Reserve Amount on the terms and conditions set forth herein. Subject to no
Default (other than Existing Defaults) having occurred and continuing and the
other terms and conditions set forth herein, Lender agrees to (i) reduce the
Reserve Amount to $550,000 upon the effectiveness of this Agreement, (ii) reduce
the Reserve Amount to $400,000 upon Borrowers' vacating the premises located at
21 Spring Lane, Farmington, Connecticut (the "APEX Plant") and (iii) reduce the
Reserve Amount to $0 provided that on or before February 15, 2003 (v) the
reductions set forth in clauses (i) and (ii) above have occurred, (w) Borrowers
shall have maintained EBITDA for the month ending January 31, 2003 of not less
than eighty-five percent (85%) of the projected EBITDA for such month as set
forth on the Projections attached hereto as Exhibit B, (x) *********************
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(y) Borrowers shall have entered into a
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forbearance agreement with Fleet, on terms and conditions satisfactory to
Lender, whereby Fleet shall agree to forbear from exercising any of its rights
or remedies against Borrowers or the Collateral as a result of Borrowers'
failure to make payments required to be made to Fleet pursuant to the terms of
the Fleet Documents and the Fleet Loan Agreement and (z) (i) Borrowers shall
have received a cash equity contribution of not less than $150,000 on terms and
conditions satisfactory to Lender or (ii) Borrowers shall have remitted to
Lender in immediately available funds ******************************************
**************************** which funds shall be applied by Lender as follows:
first, to Fees and reimbursable expenses of Lender then due and payable pursuant
to any of the Loan Documents; second, to interest then due and payable on
Revolving Advances outstanding to each Borrower, pro rata; third, to the
principal balance of the Revolving Credit Advances outstanding to each Borrower,
pro rata, until the same has been paid in full; and fourth, (A) provided no
Default or Event has occurred and is continuing, to the Borrowers to be used
solely by Borrowers for working capital purposes (B) if a Default of Event of
Default has occurred and is continuing, against all other Obligations in such
order as Lender shall determine.
(b) As a result of the closing of the Apex Plant, Borrowers
will own various pieces of Equipment that will no longer be used by Borrowers
(the "Excess Equipment"). Borrowers have requested that Lender consent to the
sale of such Excess Equipment and agree to release its Liens on such Excess
Equipment. Lender is agreeable to such request provided, that (i) no Default
(other than Existing Defaults) shall have occurred and be continuing, (ii) the
sale of any such Excess Equipment is on terms and conditions satisfactory to
Lender and (iii) the net cash proceeds of any sale of such Excess Equipment
shall be remitted to Lender to be applied in accordance with Section 1.2(c) of
the Loan Agreement.
4.3 INTEREST RATE PROVISIONS. Without in any way limiting the rights
and remedies of Lender set forth in this Agreement or under the other Financing
Agreements, at any time while any of the Existing Defaults is continuing, or if
any other Event of Default occurs (and while the same is continuing) Lender
shall continue to charge interest at a rate equal to the sum of the Revolving
Credit Rate plus one percent (1.0%) with respect to the Revolving Credit
Advances and the sum of the Term Loan Rate plus one percent (1.0%) with respect
to the Term Loan.
4.4 ACKNOWLEDGMENT.
(a) Lender hereby acknowledges that Borrowers have informed
Lender that they have written off $10,381,077 of goodwill and that such
write-off was made in accordance with GAAP.
(b) Borrowers have informed Lender that Borrowers are
considering changing their corporate structure, which may include a merger of
the Leading Borrower and Second Borrower. Such change in corporate structure is
prohibited by the terms of the Loan Agreement. Upon a request of Borrowers for
Lender's consent to a change in corporate structure, Lender acknowledges that it
shall not unreasonably withhold its consent to such change provided (i) Lender
is given at least fifteen (15) days prior written notice of such proposed
change, (ii) such change is completed on terms and conditions satisfactory to
Lender and (iii) Borrowers shall execute all documents reasonably requested by
Lender to carry out the terms of the Loan Agreement and maintain Lender's
perfected first priority Lien on the Collateral.
SECTION 5 REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Borrower hereby represents, warrants and covenants with and to
Lender as follows:
5.1 REPRESENTATIONS IN FINANCING AGREEMENTS. Each of the
representations and warranties made by or on behalf of Borrowers to Lender in
any of the Financing Agreements was true and correct when made and in all
material respects is, except for the representation and warranty set forth in
the Loan Agreement relating to the non-existence of an Event of Default, true
and correct on and as of the date of this Agreement with the same full force and
effect as if each of such representations and warranties had been made by
Borrowers on the date hereof and in this Agreement.
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5.2 BINDING EFFECT OF DOCUMENTS. This Agreement and the other Financing
Agreements have been duly executed and delivered to the Lender by Borrowers and
are in full force and effect, as modified hereby.
5.3 NO CONFLICT, ETC. The execution and delivery and performance of
this Agreement by Borrowers will not violate any Requirement of Law or
Contractual Obligation of Borrower and will not result in, or require, the
creation or imposition of any Lien on any of its properties or revenues.
5.4 ADDITIONAL EVENTS OF DEFAULT. The parties hereto acknowledge,
confirm and agree that any misrepresentation by any Borrower, or any failure of
any Borrower to comply with the covenants, conditions and agreements contained
in any Financing Agreement, herein or in any other agreement, document or
instrument at any time executed and/or delivered by any Borrower with, to or in
favor of Lender shall constitute an Event of Default hereunder, under the Loan
Agreement and the other Financing Agreements. In the event any Person, other
than Lender, shall at any time exercise for any reason (including by reason of
any Existing Default, any other present or future Event of Default, or
otherwise) any of its rights or remedies against any Borrower or any obligor
providing credit support for any Borrower's obligations to such other Person, or
against any Borrower's or such obligor's properties or assets, such event shall
constitute an Event of Default hereunder.
SECTION 6 CONDITIONS TO EFFECTIVENESS OF CERTAIN PROVISIONS OF THIS AGREEMENT
The effectiveness of the terms and provisions of Section 3.2 of this
Agreement shall be subject to the receipt by Lender of each of the following, in
form and substance satisfactory to Lender: (a) an original of this Agreement,
duly authorized, executed and delivered by each Borrower and consented to by
Guarantor; and (b) payment of the fee payable pursuant to Section 3.4.
SECTION 7 PROVISIONS OF GENERAL APPLICATION
7.1 EFFECT OF THIS AGREEMENT. Except as modified pursuant hereto, no
other changes or modifications to the Financing Agreements are intended or
implied and in all other respects the Financing Agreements are hereby
specifically ratified, restated and confirmed by all parties hereto as of the
effective date hereof. To the extent of conflict between the terms of this
Agreement and the other Financing Agreements, the terms of this Agreement shall
control. The Loan Agreement and this Agreement shall be read and construed as
one agreement.
7.2 COSTS AND EXPENSES. Each Borrower absolutely and unconditionally
agrees to pay to the Lender, on demand by the Lender at any time and as often as
the occasion therefor may require, whether or not all or any of the transactions
contemplated by this Agreement are consummated: all fees and disbursements of
any counsel to Lender in connection with the preparation, negotiation,
execution, or delivery of this Agreement and any agreements delivered in
connection with the transactions contemplated hereby and expenses which shall at
any time be incurred or sustained by the Lender or any participant of Lender or
any of their respective directors, officers, employees or agents as a
consequence of or in any way in connection with the preparation, negotiation,
execution, or delivery of this Agreement and any agreements prepared,
negotiated, executed or delivered in connection with the transactions
contemplated hereby.
7.3 FURTHER ASSURANCES. The parties hereto shall execute and deliver
such additional documents and take such additional action as may be necessary or
desirable to effectuate the provisions and purposes of this Agreement.
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7.4 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of each of the parties hereto and their respective successors and
assigns.
7.5 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Agreement or any other document furnished in connection
with this Agreement shall survive the execution and delivery of this Agreement
and the other documents, and no investigation by Lender or any closing shall
affect the representations and warranties or the right of Lender to rely upon
them.
7.6 RELEASE.
(a) In consideration of the agreements of Lender contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each Borrower, on behalf of itself
and its successors, assigns, and other legal representatives, hereby absolutely,
unconditionally and irrevocably releases, remises and forever discharges the
Lender, and its successors and assigns, and its present and former shareholders,
affiliates, subsidiaries, divisions, predecessors, directors, officers,
attorneys, employees, agents and other representatives (the Lender and all such
other Persons being hereinafter referred to collectively as the "Releasees" and
individually as a "Releasee"), of and from all demands, actions, causes of
action, suits, covenants, contracts, controversies, agreements, promises, sums
of money, accounts, bills, reckonings, damages and any and all other claims,
counterclaims, defenses, rights of set-off, demands and liabilities whatsoever
(individually, a "Claim" and collectively, "Claims") of every name and nature,
known or unknown, suspected or unsuspected, both at law and in equity, which
such Borrower or any of its successors, assigns, or other legal representatives
may now or hereafter own, hold, have or claim to have against the Releasees or
any of them for, upon, or by reason of any circumstance, action, cause or thing
whatsoever which arises at any time on or prior to the day and date of this
Agreement, including, without limitation, for or on account of, or in relation
to, or in any way in connection with any of the Loan Agreement, or any of the
other Financing Agreements or transactions thereunder or related thereto.
(b) Each Borrower understands, acknowledges and agrees that
the release set forth above may be pleaded as a full and complete defense and
may be used as a basis for an injunction against any action, suit or other
proceeding which may be instituted, prosecuted or attempted in breach of the
provisions of such release.
(c) Each Borrower agrees that no fact, event, circumstance,
evidence or transaction which could now be asserted or which may hereafter be
discovered shall affect in any manner the final, absolute and unconditional
nature of the release set forth above.
7.7 COVENANT NOT TO SUE. Each Borrower, on behalf of itself and its
successors, assigns, and other legal representatives, hereby absolutely,
unconditionally and irrevocably, covenants and agrees with and in favor of each
Releasee that it will not sue (at law, in equity, in any regulatory proceeding
or otherwise) any Releasee on the basis of any Claim released, remised and
discharged by Borrower pursuant to Section 7.6 above. If any Borrower or any of
its successors, assigns or other legal representations violates the foregoing
covenant, Borrowers, for themselves and their successors, assigns and legal
representatives, agree to pay, in addition to such other damages as any Releasee
may sustain as a result of such violation, all attorneys' fees and costs
incurred by any Releasee as a result of such violation.
7.8 SEVERABILITY. Any provision of this Agreement held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Agreement.
7.9 REVIEWED BY ATTORNEYS. Each Borrower represents and warrants to
Lender that it (a) understands fully the terms of this Agreement and the
consequences of the execution and delivery of this Agreement, (b) has been
afforded an opportunity to have this Agreement reviewed by, and to discuss this
Agreement and document executed in connection herewith with, such attorneys and
other persons as Borrower may wish, and (c) has entered into this Agreement and
executed and delivered all documents in connection herewith of its own free will
and accord and without threat, duress or other coercion of any
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kind by any Person. The parties hereto acknowledge and agree that neither this
Agreement nor the other documents executed pursuant hereto shall be construed
more favorably in favor of one than the other based upon which party drafted the
same, it being acknowledged that all parties hereto contributed substantially to
the negotiation and preparation of this Agreement and the other documents
executed pursuant hereto or in connection herewith.
7.10 GOVERNING LAW: Consent to Jurisdiction and Venue. EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN ANY OF THE FINANCING AGREEMENTS, IN ALL
RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS
AGREEMENT AND THE OTHER FINANCING AGREEMENTS AND THE OBLIGATIONS ARISING UNDER
THE FINANCING AGREEMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING
CONFLICTS OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. EACH
BORROWER HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN
NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR
DISPUTES BETWEEN ANY BORROWER AND LENDER PERTAINING TO THIS AGREEMENT OR ANY OF
THE OTHER FINANCING AGREEMENTS OR TO ANY MATTER ARISING OUT OF OR RELATED TO
THIS AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS; PROVIDED, THAT LENDER
AND EACH BORROWER ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK; AND FURTHER PROVIDED, THAT NOTHING
IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE LENDER FROM BRINGING
SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT THE
OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF LENDER.
EACH BORROWER EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN
ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH BORROWER HEREBY WAIVES
ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION,
IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH
BORROWER HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO SUCH BORROWER AT THE ADDRESS SET FORTH IN SCHEDULE 1.1 OF THE
LOAN AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE
EARLIER OF SUCH BORROWER'S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER
DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.
7.11 MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY
RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE
STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES
DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL
SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY
IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN LENDER AND BORROWER ARISING OUT
OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER FINANCING
AGREEMENTS OR THE TRANSACTIONS RELATED THERETO.
7.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement.
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IN WITNESS WHEREOF, this Agreement is executed and delivered as of the
day and year first above written.
EDAC TECHNOLOGIES, INC.
By: /s/ Dominick A. Pagano
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Name: Dominick A. Pagano
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Title: President CEO
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APEX MACHINE TOOL COMPANY, INC.
By: /s/ Dominick A. Pagano
------------------------------------
Name: Dominick A. Pagano
------------------------------
Title: President
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GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ John Garvey
------------------------------------
Name: John Garvey
Title: Duly Authorized Signatory
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*** Confidential treatment has been requested as to certain portions.
CONSENT OF GUARANTOR
All capitalized terms shall have the meanings given to them in the
foregoing Forbearance and Consent Agreement. The undersigned hereby consents to
the foregoing Forbearance and Consent Agreement, affirms the existing debt of
Borrowers to Lender and the validity of the Financing Agreements, acknowledges
and agrees to the continuing authenticity, enforceability and validity of the
Guaranty of the Obligations executed by the undersigned in favor of Lender,
reaffirms, ratifies and confirms the Guaranty in its entirety and agrees that
the Guaranty shall remain in full force and effect until the Obligations have
been paid in full in cash and the Financing Agreements have been irrevocably
terminated.
In consideration of Lender's agreement to enter into the foregoing
Forbearance and Consent Agreement and for other good and valuable consideration,
the undersigned hereby releases, remises, acquits and forever discharges Lender
and the Releasees from any and all actions and causes of action, judgments,
executions, suits, debts, claims, demands, liabilities, obligations, damages and
expenses of any and every character, known or unknown, direct and/or indirect,
at law or in equity, of whatsoever kind or nature, for or because of any matter
or things done, omitted or suffered to be done by Lender and/or any of the
Releasees prior to and including the date of execution hereof or after the date
hereof, including, without limitation, in connection with any matter directly or
indirectly arising out of or in any way connected to the Guaranty or the
Financing Agreements.
GROS-ITE INDUSTRIES, INC.
By: /s/ Dominick A. Pagano
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Name: Dominick A. Pagano
-----------------------------------
Title: President
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EXHIBIT A
TO
AMENDMENT AND FORBEARANCE AGREEMENT
EXISTING DEFAULTS
1) Borrowers' Financial Statements for the Fiscal Year ending December 29,
2001 containing a going concern qualification.
2) Borrowers' failure the make the required payments pursuant to the terms
of the Fleet Loan Agreement and Fleet Documents.
3) Borrowers' failure to maintain the required minimum Fixed Charge
Coverage Ratio for the Fiscal Quarter ending September 30, 2002.
4) Second Borrower making a payment to Leading Borrower for administration
and overhead expenses in excess of $100,000 during the 2002 Fiscal
Year.
2