ALL INDEBTEDNESS EVIDENCED BY THIS NOTE IS SUBORDINATED TO OTHER
INDEBTEDNESS PURSUANT TO, AND TO THE EXTENT PROVIDED IN, AND IS
OTHERWISE SUBJECT TO THE TERMS OF, THE INTERCREDITOR AND
SUBORDINATION AGREEMENT, DATED APRIL 1, 2003 (THE "SUBORDINATION
AGREEMENT"), AS THE SAME MAY BE AMENDED, MODIFIED OR OTHERWISE
SUPPLEMENTED FROM TIME TO TIME, BY AND AMONG EDAC TECHNOLOGIES
CORPORATION, APEX MACHINE TOOL COMPANY, INC., AS BORROWERS, GROS-
ITE INDUSTRIES, INC., AS GUARANTOR, GENERAL ELECTRIC CAPITAL
CORPORATION, AS SENIOR LENDER, AND THE HOLDERS FROM TIME TO TIME
OF THE OBLIGATIONS ARISING UNDER THIS NOTE
AMENDED AND RESTATED NOTE B
Note originally dated September 29, 2000
$1,000,000.00 Replaced and Substituted April 1, 2003
Hartford, Connecticut
FOR VALUE RECEIVED, the undersigned, EDAC TECHNOLOGIES CORPORATION, a
Wisconsin corporation with a principal place of business at 1806 New Britain
Avenue, Farmington, Connecticut 06032 ("Maker" or "Borrower") hereby promises to
pay to the order of FLEET NATIONAL BANK, a national banking association with a
place of business at 777 Main Street, Hartford, Connecticut 06115 ("Payee" or
"Bank"), or any subsequent assignee or holder (Payee and any subsequent assignor
or holder being sometimes referred to as "Holder"), the principal amount of
either (i) ONE MILLION AND 00/100 DOLLARS ($1,000,000.00) or (ii) SEVEN HUNDRED
FIFTY THOUSAND AND 00/100 DOLLARS ($750,000.00), only upon the closing or
consummation of a Trigger Event (as defined below), as provided herein and all
other sums due to Holder under this Note and the Other Documents, and agrees
with Holder as follows:
WHEREAS, on September 29, 2000, Borrower executed a certain Amended and
Restated Term Note in favor of Bank in the original principal amount of
$7,000,0000 (the "Original Note"); and
WHEREAS, to secure all obligations of Borrower under the Original Note,
the following documents were executed on September 29, 2000: (a) a Security
Agreement by and between Borrower and Bank ("Borrower Security Agreement"); (b)
a Security Agreement by and between Apex Machine Tool Company, Inc. ("Apex") and
Bank ("Apex Security Agreement"); (c) a Security Agreement by and between
Gros-Ite Industries, Inc. ("Gros-Ite") and Bank ("Gros-Ite Security Agreement,"
together with Borrower Security Agreement and Apex Security Agreement,
collectively, the "Security Agreements"); (d) a Guaranty Agreement from Apex in
favor of Bank ("Apex Guaranty"); and (e) a Guaranty Agreement from Gros-Ite in
favor of Bank ("Gros-Ite Guaranty," together with Apex Guaranty, collectively,
the "Guaranty Agreements").
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SECTION 1.
DEFINITIONS
All capitalized terms used in this Note or the Other Documents, or in
any certificate, report or other document, instrument or agreement executed or
delivered pursuant hereto and thereto (unless otherwise indicated therein) shall
have the meanings ascribed to such terms below.
Section 1.1. "Bank" has the meaning set forth in the first paragraph
hereof.
Section 1.2. "Borrower" has the meaning set forth in the Preamble
hereof.
Section 1.3. "Business Day" means any day other than a Saturday,
Sunday, legal holiday or other day on which banks in the State of Connecticut
are required or permitted by law to close.
Section 1.4. "Closing Date" means the date hereof.
Section 1.5. "Encumbrance" means any security interest, mortgage,
pledge, lien, claim, charge, encumbrance, title retention agreement, lessor's
interest under a financing lease or any analogous arrangements in any of
Borrower's properties or assets, intended as, or having the effect of, security.
Section 1.6. "Financial Statement" or "Financial Statements" means as
of any date, or with respect to any period, as applicable, a financial report or
reports consisting of (i) a balance sheet, (ii) an income statement; (iii) a
statement of cash flow; and (iv) a statement of changes in stockholder's equity.
Section 1.7. "Guarantor" means collectively, Apex and Gros-Ite.
Section 1.8. "Guaranty Agreements" has the meaning set forth in the
third paragraph hereof.
Section 1.9. "Loan" means the loan made by Bank to Borrower pursuant to
this Note.
Section 1.10. "Maker" has the meaning set forth in the first paragraph
hereof.
Section 1.11. "Modification" means that certain Modification Agreement
dated the date hereof by and among Borrower, Guarantor and Bank.
Section 1.12. "Note A" means that certain promissory note of even date
herewith made by Borrower to Bank in the original principal amount of
$1,325,000.
Section 1.13. "Other Documents" means the Security Agreements, the
Guaranty Agreements, the Modification, and any other documents, instruments or
agreements executed by
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Borrower in connection with the Loan (excluding the Original Note), as modified
by the Modification.
Section 1.14. "Person" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association, joint
venture or other entity of whatever nature, whether public or private.
Section 1.15. "Security Agreements" has the meaning set forth in the
third paragraph hereof.
Section 1.16 "Trigger Event" has the meaning set forth in Section 3A of
the Modification.
Section 1.17 "Trigger Event Initiation" has the meaning set forth in
Section 3C(a) of the Modification.
SECTION 2.
TERMS OF THE LOAN
This Note and Note A have been issued by Maker to amend and restate the
Original Note in its entirety and evidence the same indebtedness that has been
evidenced by the Original Note but reduces the principal amount due under such
Original Note to (i) the principal amount of ONE MILLION THREE HUNDRED
TWENTY-FIVE THOUSAND AND 00/100 DOLLARS ($1,325,000.00) plus (ii) the contingent
right to receive a payment of either ONE MILLION AND 00/100 DOLLARS
($1,000,000.00) or SEVEN HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($750,000.00)
payable only upon the closing or consummation of a Trigger Event. The Original
Note from Maker is hereby replaced and superseded in its entirety by this Note
and Note A. This Note is not a novation of the Original Note. The Holder of this
Note is entitled to the benefit of the Other Documents.
Section 2.1. Payment of Interest. This Note shall not bear interest at
any time during its term and no payments of interest shall be required
hereunder. Notwithstanding the foregoing, interest may be required to be paid
pursuant to Section 3(C) of the Modification.
Section 2.2 Payment Upon Trigger Event. Borrower shall not be required
to make any payments under this Note unless and until the closing or
consummation of a Trigger Event in accordance with Section 3 of the
Modification. Upon the closing or consummation of a Trigger Event, Borrower
shall pay to the Holder the amounts required to be paid pursuant to Section 3 of
the Modification (the "Payments"). Upon making the Payments in full to Holder,
the Borrower shall have no further obligations under this Note or to Bank under
the Other Documents. If a Trigger Event Initiation has not taken place on or
before March 31, 2005, this Note shall terminate, and the Borrower shall have no
further obligations under this Note or to Bank under the Other Documents.
-4-
Section 2.3. Method of Payment. If any payment is required to be made
under this Note as a result of the closing or consummation of a Trigger Event,
such payment shall be made by Borrower to Bank at its office located at 777 Main
Street, Hartford, Connecticut 06115, on or before 12:00 noon on the due date
thereof, free and clear of, and without any deduction or withholding for, any
taxes or other payments.
Section 2.4. Termination of Note. If no Trigger Event Initiation has
occurred on or before March 31, 2005, then this Note shall terminate, and
Borrower shall have no further obligations under this Note.
SECTION 3.
SECURITY FOR THE OBLIGATIONS
Section 3.1. Security. The obligations of Borrower under this Note
shall be secured by:
(a) A security interest in all properties (other than
real properties) and assets of Borrower, including goods, accounts receivable,
inventory, contract rights, accounts, documents, instruments and chattel paper,
business and financial records and general intangible assets of Borrower as more
particularly defined in the Borrower Security Agreement.
(b) The Guaranty Agreements executed by Guarantor on the
Closing Date, which Guaranty Agreements shall be secured by all properties and
assets of Guarantor, including goods, accounts receivable, inventory, contract
rights, accounts, documents, instruments and chattel paper, business and
financial records and general intangible assets of Guarantor as more
particularly defined in the security agreements executed by Guarantor.
SECTION 4.
REPRESENTATIONS AND WARRANTIES
In order to induce Bank to enter into the Modification and to accept
this Note, Borrower makes the following representations and warranties to Bank,
which shall be deemed made as of the date hereof. Any knowledge acquired by Bank
shall not diminish its rights to rely upon such representations and warranties.
Section 4.1. Legal Existence.
(a) Borrower is a corporation legally existing and in
good standing under the laws of the State of Wisconsin and has the power and
authority to own its property and conduct its business substantially as
presently conducted by Borrower; and
(b) Borrower has the power and authority to enter into
and to perform its obligations under this Note and the Other Documents, and to
carry out the transactions contemplated hereby and thereby.
-5-
Section 4.2. Authority, Consents; Absence of Conflict with Other
Agreement, Etc. The execution, delivery and performance of this Note and the
Other Documents, by Borrower, and the transactions contemplated hereby,
(a) are within the powers of, and have been duly
authorized by, Borrower; and
(b) do not require any approval or consent of, or filing
with, any governmental agency or authority bearing on the validity of such
instruments and transactions which is required by law or the regulations of any
agency or authority and which has not been obtained or made.
Section 4.3. Litigation. There is no pending or threatened action,
suit, proceeding or investigation before any court, governmental or regulatory
body, agency, commission or official, board of arbitration or arbitrator against
or affecting Borrower, the outcome of which could materially adversely affect
the financial position, business, operations or prospects of Borrower or which
could significantly impair the ability of Borrower to perform its obligations
under this Note and the Other Documents.
Section 4.4. Binding Obligations. This Note and the Other Documents
constitute the legal, valid and binding obligations of Borrower, enforceable
against it in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or affecting generally the enforcement of creditors' rights,
and except that the availability of specific performance, injunctive relief or
any other equitable remedy may be subject to the discretion of the court before
which any proceedings for such remedy may be brought.
Section 4.5. Noncontravention. The execution, delivery and performance
by Borrower of this Note and the Other Documents will not violate any existing
law, ordinance, rule, regulation or order of any governmental authority or
result in a breach of any of the terms of, or constitute a default under, any
contractual obligation to which Borrower is a party or by which it or any of its
properties or assets are bound or result in or require the imposition of any
Encumbrances on any of Borrower's properties or assets, except as set forth on
Schedule A hereof.
Section 4.6. Other Defaults. Borrower is not in default in the
performance, observance or fulfillment of any material contractual obligation
other than defaults arising under certain obligations owed to Bank, which
defaults were waived pursuant to the terms of the Modification, and defaults
arising under certain obligations owed to General Electric Capital Corporation
("GE"), which defaults were waived pursuant to that certain Waiver, Consent and
Amendment No.2 by and between Borrower, Apex and GE dated April 1, 2003.
Section 4.7. Taxes. Borrower has filed all tax returns and reports
required to be filed by it with any governmental authority and has paid in full,
or made adequate provisions or established adequate reserves for, the payment of
all taxes, interest, penalties, assessments or deficiencies shown to be due or
claimed to be due on or in respect to such tax returns and reports.
-6-
SECTION 5. COVENANTS
Section 5.1. Taxes and Other Assessments. Borrower shall pay and
discharge, and maintain adequate reserves for the payment and discharge of, all
taxes, assessments, government charges or levies, or claims for labor, supplies,
rent or other obligations made against it or its properties and assets which, if
unpaid, might become an Encumbrance against Borrower or its properties and
assets, except liabilities which are being contested in good faith in
appropriate proceedings. Borrower shall file all Federal, state and local tax
returns and other reports that it is required by law to file. Borrower shall
promptly notify or cause notice to be given to Bank of any pending or future
audits of its income tax returns by the Internal Revenue Service or by any state
in which Borrower conducts business operations and the results of each such
audit.
Section 5.2. Payment of Indebtedness. Borrower shall promptly pay and
discharge when due and payable (or within applicable grace periods) all
indebtedness due to any Person from Borrower, except when the amount thereof is
being contested in good faith by appropriate proceedings and with reserves
therefor being established as a current liability on the books of Borrower as
required by GAAP.
Section 5.3. Financial Information. Borrower shall furnish to Bank:
(a) As soon as available, but in no event later than
ninety (90) days after the end of each fiscal year of the Borrower and
Guarantor, Financial Statements (including a reasonably detailed balance sheet
and profit and loss statement) for such year, audited and certified by an
independent certified public accountant acceptable to Bank.
(b) As soon as available, but in no event later than
forty five (45) days after the end of each fiscal quarter of Borrower and
Guarantor, an internally prepared balance sheet and profit and loss statement as
of the end of, and income for, the period then ended, certified by the chief
financial officer of Borrower but subject, however, to normal, recurring
year-end adjustments that shall not in the aggregate be material in amount.
(c) With reasonable promptness, such further and
additional financial information as reasonably requested by Bank.
SECTION 6
EVENT OF DEFAULT; ACCELERATION
If the following event ( an "Event of Default") shall occur:
(a) Any amount owing under this Note is not paid when
due;
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then, and so long as any such Event of Default shall not have been remedied or
waived in writing by the Bank all amounts owing with respect to this Note shall,
at the option of the Bank, be forthwith matured and become immediately due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by the Borrower and by all guarantors,
endorsers, and pledgors with respect hereto. In case the Event of Default shall
have occurred and be continuing, and whether or not the Bank shall have
accelerated the maturity of the Note pursuant to the foregoing, the Bank, if
owed any amount with respect to the Note may proceed to protect and enforce its
rights by suit in equity, action at law and/or performance of any covenant or
agreement contained in this Note, including as permitted by applicable law the
obtaining of the ex parte appointment of a receiver, and, if such amount shall
have become due, by declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right of the Bank. No remedy herein
conferred upon the Bank or the holder of this Note is intended to be exclusive
of any other remedy and each and every remedy shall be cumulative and shall be
in addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute or any other provision of law.
SECTION 7
MISCELLANEOUS PROVISIONS
Section 7.1. Cross Collateral. The security interests, liens and other
rights and interests in and relative to any collateral now or hereafter granted
to Bank by Borrower by or in any instrument or agreement, including but not
limited to this Note and the Other Documents, shall serve as security for any
and all obligations of Borrower to Bank, and, for the repayment thereof, Bank
may resort to any security held by it in such order and manner as it may elect.
Section 7.2. Set-Off. Borrower hereby grants to Bank a continuing lien
on and security interest in any and all deposits or other sums credited by or
due from Bank to Borrower and any securities or other property of Borrower in
the possession of Bank. Subject to any agreement between Borrower and General
Electric Capital Corporation or the holder of Note A, regardless of the adequacy
of any collateral, any deposits or other sums credited by or due from Bank to
Borrower and any securities or other property of Borrower in the possession of
Bank may be applied to or set off against the payment of obligations of Borrower
under this Note.
Section 7.3. Fees and Expenses. Borrower will reimburse and indemnify
Bank for all reasonable out-of-pocket expenses incurred after the date hereof,
all either before or after obtaining judgment on or with respect to any amounts
payable hereunder, including but not limited to reasonable attorneys' fees and
disbursements, incurred or expended in connection with the preparation,
negotiation, interpretation or delivery of this Note and the Other Documents or
any amendment hereof or thereof or with the enforcement or collection of any
obligations or the satisfaction of any indebtedness of Borrower hereunder or
thereunder, whether or not proceedings are instituted in any court of competent
jurisdiction, or in connection with any litigation, proceeding or dispute
hereunder or thereunder.
-8-
Section 7.4. Notices. All notices, requests, demands or other
communications required by this Note shall be made in writing, and unless
otherwise specifically provided herein, shall be deemed to have been duly given
when delivered by hand or mailed certified mail, return receipt requested,
postage prepaid, or, in the case of telecopy or facsimile notice, when
transmitted, answer back received, addressed as follows, or to such other
address as either party may designate in writing:
If to Bank:
Fleet National Bank
MS: CT EH 40223B
777 Main Street
Hartford, CT 06115
Attention: Area Manager - Managed Asset Division
with a copy to:
Updike, Kelly & Spellacy, P.C.
One State Street
PO Box 231277
Hartford, CT 06123-1277
Attention: Thomas A. Gugliotti, Esq.
If to Borrower; to the address set forth in the preamble.
Section 7.5. Governing Law. This Note shall be governed by, and shall
be construed and enforced in accordance with, the laws of the State of
Connecticut, without reference to Connecticut's choice of law rules.
Section 7.6. Waivers. Maker and each endorser, guarantor and surety of
this Note, and each other person liable or who shall become liable for all or
any part of the indebtedness evidenced by this Note:
(a) waive demand, presentment, protest, notice of
protest, notice of dishonor, diligence in collection, notice of
nonpayment and all notices of a like nature; and
(b) consent to (i) the release, surrender, exchange or
substitution of all or any part of the security for the indebtedness
evidenced by this Note, or the taking of any additional security; (ii)
the release of any or all other persons from liability, whether primary
or contingent, for the indebtedness evidenced by this Note or for any
related obligations; and (iii) the granting of any other indulgences to
any such person.
Any such release, surrender, exchange, substitution, taking or indulgence may
take place without notice to any such person, and, whether or not any such
notice is given, shall not impair the liability of any such person.
-9-
Section 7.7. Interpretation. As used in this Note, words of any gender
shall be deemed to apply equally to any other gender, the plural shall include
the singular and the singular shall include the plural (as the context shall
require), and the word "person" shall refer to individuals, entities,
authorities and other natural and juridical persons of every type.
Section 7.8. PREJUDGMENT REMEDIES. MAKER AND EACH AND EVERY ENDORSER,
GUARANTOR AND SURETY OF THIS NOTE, AND EACH OTHER PERSON WHO IS OR WHO SHALL
BECOME LIABLE FOR ALL OR ANY PART OF THIS NOTE, HEREBY ACKNOWLEDGE THAT THE
TRANSACTION OF WHICH THIS NOTE IS A PART IS A COMMERCIAL TRANSACTION AND WAIVE
THEIR RIGHTS TO NOTICE AND HEARING UNDER CHAPTER 903a OF THE CONNECTICUT GENERAL
STATUTES OR BY OTHER APPLICABLE LAW WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH
HOLDER MAY DESIRE TO USE.
Section 7.9. JURY TRIAL. MAKER AND EACH AND EVERY ENDORSER, GUARANTOR
AND SURETY OF THIS NOTE, AND EACH OTHER PERSON WHO IS OR WHO SHALL BECOME LIABLE
FOR ALL OR ANY PART OF THIS NOTE, HEREBY WAIVES TRIAL BY JURY IN ANY COURT IN
ANY SUIT, ACTION, OR PROCEEDING OR ANY MATTER ARISING IN CONNECTION WITH OR IN
ANY WAY RELATED TO THE TRANSACTION OF WHICH THIS NOTE IS A PART AND/OR IN THE
ENFORCEMENT BY BANK OF ANY OF ITS RIGHTS AND REMEDIES HEREUNDER OR UNDER
APPLICABLE LAW. MAKER ACKNOWLEDGES THAT IT MAKES THIS WAIVER KNOWINGLY,
VOLUNTARILY AND ONLY AFTER CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER BY
ITS ATTORNEY.
Section 7.10. Miscellaneous. The rights and remedies herein expressed
are cumulative and not exclusive of any other rights which Bank would have
otherwise. All of the terms and provisions of this Note shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of Borrower and Bank, provided that Borrower may not assign or transfer
its rights hereunder without prior written consent of Bank; without limitation
of the generality of the foregoing, Bank may assign or transfer its rights
hereunder in whole or in part, to other financing institutions, by way of sales
of undivided participations, or other similar means. The captions in this Note
are for convenience of reference only and shall not define or limit the
provisions hereof. This Note may be amended, and the performance or observance
by Borrower of any terms of this Note or any other instrument relating hereto
may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of
Borrower and the written consent of Bank. No waiver shall extend to or affect
any obligation not expressly waived or impair any right consequent thereon. No
course of dealing or delay or omission in the exercise of any right, remedy,
power or privilege hereunder on the part of Bank shall impair, prejudice or
constitute a waiver of any such right, remedy, power or privilege or otherwise
be prejudicial thereto. No notice to or demand upon Borrower shall entitle
Borrower to other or further notice or demand in similar or other circumstances.
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IN WITNESS WHEREOF, the undersigned has executed this Note as of the
date first set forth above.
EDAC TECHNOLOGIES CORPORATION
By: /s/Dominick A. Pagano
------------------------------
Name: Dominick A. Pagano
Title: President
Duly Authorized
SCHEDULE A
Section 4.5. - Consent of GE Required and Received.