EXHIBIT 10.41
THIRD FORBEARANCE AGREEMENT
THIS THIRD FORBEARANCE AGREEMENT (the "Third Forbearance Agreement"),
expiring on September 14, 2001, is entered into by and among STANDARD AUTOMOTIVE
CORPORATION ("SAC"), ARELL MACHINING LTD. ("ARELL"), formerly known as CRITICAL
COMPONENTS CANADA LTD. (SAC and Arell each a "Borrower" and collectively, the
"Borrowers"), PNC BANK, NATIONAL ASSOCIATION ("PNC"), ING (U.S.) CAPITAL LLC
("ING"), FLEET NATIONAL BANK, as successor to SUMMIT BANK, SOVEREIGN BANK, THE
BANK OF NEW YORK, KEYBANK NATIONAL ASSOCIATION, OCEANFIRST BANK, and FIRSTAR
BANK, N.A. (each a "Bank" and collectively the "Banks"), PNC as Administrative
Agent (PNC in such capacity, the "Administrative Agent"), ING as Syndication
Agent (ING in such capacity the "Syndication Agent"), and PNC CAPITAL MARKETS,
INC. and ING BARINGS LLC as Joint Arrangers.
BACKGROUND
Borrowers, Banks, and Administrative Agent are parties to an Amended and
Restated Credit Agreement, dated as of April 25, 2000, between and among the
Borrowers, Banks, and Administrative Agent (as amended, supplemented, or
otherwise modified from time to time, the "Agreement") pursuant to which
Administrative Agent and Banks provide Borrowers with certain financial
accommodations.
There are various Events of Default now existing under the Agreement as
described in a series of default letters dated December 19, 2000, January 23,
2001, February 8, 2001, February 14, 2001, and in the acceleration letter dated
July 27, 2001, sent by Administrative Agent to Borrowers. Borrowers also have
failed to make the principal and interest payments that were due to Banks on
March 31, and June 30, 2001, which are additional Events of Default. Other
Events of Default may exist. (Collectively, these Events of Default are the
"Designated Defaults.") The forbearance periods under the Forbearance Agreement
dated April 2, 2001, and the Second Forbearance Agreement effective May 21, 2001
(collectively, the "Previous Forbearance Agreements") have expired. By reason of
the Designated Defaults, and by way of the acceleration letter dated July 27,
2001, Administrative Agent and Banks terminated the Commitments and declared the
Loans, Notes, and other amounts owed under the Agreement to be due and payable
immediately.
Borrowers requested that Administrative Agent and Banks withdraw the
acceleration letter, and forbear for a period of time from again accelerating
the Indebtedness and from exercising their rights and remedies under the Loan
Documents, or otherwise. Pursuant to the letter dated August 9, 2001,
Administrative Agent and Banks withdrew the July 27th acceleration letter
subject to the terms of the August 9th letter, which was executed by the
Borrowers. The parties have now agreed to enter into this Third Forbearance
Agreement.
NOW, THEREFORE, in consideration of any loan or advance or grant of credit
heretofore made to or for the account of either Borrower and in consideration of
the forbearance by Administrative Agent and Banks, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms not otherwise defined herein
shall have the meanings given to them in the Agreement.
2. Acknowledgement. Borrowers acknowledge that the Designated
Defaults, among other Events of Default, have occurred and exist as of the date
hereof, and that each Borrower is unconditionally obligated to pay all of the
Loans, all without defense, setoff, or counterclaim of any kind or nature
whatsoever.
3. Outstanding Loans and obligations under the Loan Documents. Each
Borrower affirms and acknowledges that (i) as of August 10, 2001, there was due
and owing to Administrative Agent and Banks, under the Agreement, the principal
amount of Loans as set forth on Exhibit A to this Agreement, together with
accrued interest thereon and costs and expenses; (ii) all such Loans and other
obligations of Borrowers under the Loan Documents are valid obligations of
Borrowers, and there are no claims, setoffs, or defenses to the payment by any
Borrower of the Loans or any of the other obligations of the Borrowers under the
Loan Documents; and (iii) the Agreement and the other Loan Documents are and
shall continue to be legal, valid, and binding obligations and agreements of
Borrowers enforceable in accordance with their terms.
4. Forbearance. Subject to the provisions of ss. 7 below, during the
period commencing as the date of the execution of this Third Forbearance
Agreement, and ending on the earlier to occur of (i) September 14, 2001, or (ii)
the date of any Forbearance Default as defined in ss. 6 hereof (the "Forbearance
Period"), Administrative Agent and Banks will forbear from exercising their
rights and remedies under the Loan Documents with respect to the Designated
Defaults.
5. Additional Agreements. Subject to the terms and conditions of this
Third Forbearance Agreement, and as consideration for Administrative Agent and
Banks entering into this Third Forbearance Agreement:
(a) Each Borrower acknowledges its continuing obligation under
ss. 12.5 of the Agreement and under the various Loan Documents and guarantees to
pay or to reimburse Administrative Agent and Banks for the expenses of any
professionals and consultants engaged by the Administrative Agent or Banks,
including but not limited to the expenses incurred by Administrative Agent and
Banks for the professionals and consultants listed on Exhibit B.
(b) Borrowers affirm their agreement under the Previous Forbearance
Agreements that interest has been and is accruing on the unpaid balances under
any of the Loans and on any other payment obligations under the Agreement at the
Default Rate set forth in ss. 5.3 of the Agreement, and that all of the Loans
shall be deemed to be Base Rate Loans.
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(c) In addition to any requirements in the Loan Documents, Borrowers
agree to provide the following documents and reports together with such
additional financial and other reporting on which Administrative Agent and
Borrowers mutually agree: (i) copies of all past communications not already
provided to Administrative Agent and Banks and copies of all future
communications with the Internal Revenue Service concerning outstanding excise
taxes of Borrowers or any of their Subsidiaries, and biweekly reporting on the
status of Borrowers' or any of their Subsidiaries' negotiations with the
Internal Revenue Service; and (ii) the financial reporting items listed on
Exhibit C to this Third Forbearance Agreement.
(d) Each Borrower agrees that without the written consent of Banks it
will make no payments of principal or interest or dividends or distributions of
any kind to the holders of equity interests (whether common, preferred, or
otherwise) or subordinated debt of Borrowers or any of their Subsidiaries, or to
the holders of the Ranor Notes or any notes issued in connection with the Arell
Acquisition or the Airborne Acquisition. Each Borrower further agrees that
without the written consent of the Banks it will not make any payments pursuant
to ss. 3.5(b) of the Arell Stock Purchase Agreement dated March 3, 2000, with
the Collateral or with the proceeds of Collateral. Each Borrower represents and
warrants that since at least December 19, 2000, no dividends or distributions of
any kind to the holders of equity interests have been paid, and that since at
least December 19, 2000, no payments under ss. 3.5(b) of the Arell Stock
Purchase Agreement have been made.
(e) Each Borrower agrees that it will not request, and the Banks will
not make, advances under the Revolving Credit Commitment or under the Interim
Revolving Credit Commitment during the Forbearance Period.
(f) Substantially simultaneously with the execution of this Third
Forbearance Agreement, Borrowers shall advise in writing on the status of the
sale of the vertical-boring machine of Ranor. The net proceeds of the sale of
the vertical-boring machine of Ranor shall be paid to Administrative Agent and
applied to reduce Borrowers' Indebtedness. The net proceeds from the sale of any
other Collateral shall be paid to Administrative Agent and applied to reduce
Borrowers' Indebtedness in accordance with ss. 9.5 of the Agreement.
(g) This Third Forbearance Agreement is without prejudice to the
Banks' rights concerning any agreements between Borrowers and any of their
Subsidiaries, and Steven Merker and William Merker. Borrowers and their
Subsidiaries shall make no prepayments to Steven Merker and William Merker under
any agreement.
(h) Borrowers and their Subsidiaries agree that Critical Components
Corporation shall not pledge the stock in Arell that has not already been
pledged under the Canadian Pledge.
(i) Borrowers and their Subsidiaries agree that they will not enter
into any agreement with the Internal Revenue Service or any other taxing
authority in connection with any tax refunds, commit any tax refunds to the
Internal Revenue Service, to any other taxing authority, or to any other entity,
or use or dispose of any tax-refund proceeds that Borrowers or any Subsidiaries
receive without the written consent of Banks. Borrowers and their Subsidiaries
agree to provide Administrative Agent with all financial data necessary to
enable the Bank Group to calculate the allocation of any tax refund to each
Borrower and Subsidiary.
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(j) Simultaneously with or before the execution of this Third
Forbearance Agreement by Borrowers and their Subsidiaries, which shall be no
later than August 15, 2001, Borrowers shall pay the outstanding professional
expenses set forth on Exhibit B directly to the billing vendors. Borrowers
shall pay $50,000 to Administrative Agent on or before each of the following
dates: (i) August 10, 2001, (ii) August 15, 2001, (iii) August 22, 2001,
(iv) August 29, 2001, (v) September 5, 2001, and (vi) September 12, 2001.
(k) By August 31, 2001, Borrowers shall provide Administrative Agent
and Banks with a business plan and time line for a short-term repayment of the
bank debt through the marketing and disposition of assets of Borrowers and their
Subsidiaries prepared by Carl Marks Consulting Group LLC ("Carl Marks").
Borrowers agree to meet with Administrative Agent and Carl Marks on September
11, 2001, to discuss Carl Marks's written plan to sell assets of the Borrowers.
(l) Borrowers shall begin immediately the process of meeting with and
interviewing investment bankers and shall promptly advise the Administrative
Agent of such meetings. By September 14, 2001, Borrowers shall hire an
investment banker that is acceptable to Administrative Agent and Banks.
(m) The provisions of subsections (c), (d), (e), (f), (h), (i), and
(j) of this ss. 5 expressly survive the expiration of the Third Forbearance
Agreement, except, to the extent not inconsistent with Borrowers' obligations
under the Agreement and Loan Documents, that subsections (c), (d), and (e) of
this ss. 5 shall terminate on the date that Borrowers cease to be in Default and
no Event of Default exists. A violation of any of these subsections by any
Borrower or Subsidiary shall constitute an Event of Default under this Third
Forbearance Agreement and under ss. 10 of the Agreement.
6. Forbearance Defaults. Each of the following shall constitute a
Forbearance Default:
(a) The existence of an Event of Default under the Agreement (other
than the Designated Defaults);
(b) Either Borrower fails to keep or perform any of the covenants or
agreements contained herein;
(c) Any representation or warranty of either Borrower contained
herein is false, misleading, or incorrect in any material respect; or
(d) The Internal Revenue Service files a Notice of Tax Lien in
connection with either Borrower or any Subsidiary that does not provide for its
subordination, in a writing satisfactory to Banks, to the amounts due and owing
or to be due and owing to Banks under the Agreement and to all of the Liens and
security interests granted to Administrative Agent and Banks under the Agreement
and the Loan Documents.
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On the occurrence of a Forbearance Default, all Loans shall, at Required Banks
option, be immediately due and payable and Administrative Agent shall be
entitled immediately to exercise all of its rights and remedies under the Loan
Documents or otherwise.
7. Conditions of Effectiveness. This Third Forbearance Agreement
shall become effective (the "Effective Date") only on the date when each of the
following conditions precedent have been satisfied: (i) Administrative Agent
shall have received a copy of this Agreement executed by Borrowers and Banks;
(ii) Administrative Agent shall have received such other supporting documents,
instruments and certificates as Administrative Agent shall reasonably request,
including without limitation the Consents of the Guarantors and Pledgors; (iii)
Borrowers shall pay the legal and professional expenses listed in Exhibit B;
(iv) Administrative Agent shall have received the $50,000 payment due by August
15, 2001; (v) Borrower shall have brought all financial reporting listed on
Exhibit C current to the satisfaction of Administrative Agent, including those
listed as items 2, 5, 6, and 7 for the week ending August 3, 2001, and the month
ending June 30, 2001, as applicable; (vi) Administrative Agent shall have
received a copy of the employment contract with Matthew Burris; (vii)
Administrative Agent shall have received a copy of the engagement letter with
McFarland Dewey; and (viii) Administrative Agent shall have received the
executed original de-acceleration letter dated August 9, 2001. In no event shall
this Third Forbearance Agreement become effective unless each of the conditions
precedent have occurred by August 15, 2001.
8. Representations and Warranties. Each Borrower hereby represents
and warrants as follows:
(a) This Third Forbearance Agreement, the Agreement as amended
hereby, including but not limited to ss. 9.5 of the Agreement, and all other
Loan Documents (collectively, the "Documents") constitute legal, valid, and
binding obligations of each Borrower and are enforceable against each Borrower
in accordance with their terms.
(b) As to each Borrower, other than the Designated Defaults, no Event
of Default or Default has occurred and is continuing or would exist after giving
effect to this Third Forbearance Agreement.
(c) Each Borrower has no defense, counterclaim, or offset with
respect to the Documents or underlying transactions.
(d) Each Borrower has the corporate power, and has been duly
authorized by all requisite corporate action, to execute and deliver this Third
Forbearance Agreement and to perform its obligations hereunder. This Third
Forbearance Agreement has been duly executed and delivered by Borrowers.
(e) Borrowers' execution, delivery, and performance of this Third
Forbearance Agreement does not and will not (i) violate any law, rule,
regulation, or court order to which either Borrower is subject, (ii) conflict
with or result in a breach of each Borrower's Articles of Incorporation,
By-Laws, or any agreement or instrument to which either Borrower is a party or
by which it or its properties are bound, or (iii) result in the creation or
imposition of any lien, security interest, or encumbrance on any property of
either Borrower, whether not owned or hereafter acquired, other than liens in
favor of Administrative Agent.
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(f) The recitals set forth in the Background paragraph above are
truthful and accurate and are an operative part of this Third Forbearance
Agreement.
(g) Administrative Agent has and will continue to have a valid
first-priority lien and security interest in all Collateral, and Borrowers
expressly reaffirm all security interests and Liens granted to Administrative
Agent pursuant to the Loan Documents.
9. Waiver. Each Borrower waives and affirmatively agrees not to
allege or otherwise pursue any or all defenses, affirmative defenses,
counterclaims, claims, causes of action, setoffs, or other rights that they may
have to contest (a) any Designated Defaults that have been declared or any
Events of Default that could be declared by Administrative Agent; (b) any
provision of the Loan Documents, the Previous Forbearance Agreements, or this
Third Forbearance Agreement; (c) the security interest of Administrative Agent
in any property, whether real or personal, tangible or intangible, or any right
or other interest, now or hereafter arising in connection with the Collateral;
or (d) the conduct of Administrative Agent in administering the financing
arrangements between Borrowers and Banks.
10. Release. Each Borrower hereby releases, remises, acquits, and
forever discharges Administrative Agent, Banks, the Syndication Agent, and the
Joint Arrangers together with their employees, agents, representatives,
consultants, attorneys, fiduciaries, officers, directors, partners,
predecessors, successors and assigns, subsidiary corporations, parent
corporations, and related corporate divisions (all of the foregoing hereinafter
called the "Released Parties") 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 any of the
Released Parties prior to and including the date of execution hereof, and in any
way directly or indirectly arising out of or in any way connected to the
Previous Forbearance Agreements, this Third Forbearance Agreement, the
Agreement, or the Loan Documents (all of the foregoing hereinafter called the
"Released Matters"). Borrowers acknowledge that the agreements in this Section
are intended to be in full satisfaction of all or any alleged injuries or
damages arising in connection with the Released Matters.
11. Governing Law. This Third Forbearance Agreement has been
delivered to and accepted by Administrative Agent and Banks, and will be deemed
to be made in the State and interpreted and the rights and liabilities of the
parties hereto determined in accordance with the laws of the State indicated in
the Loan Agreement, excluding its conflict-of-laws rules.
12. JURY TRIAL WAIVER. THE BORROWERS EXPRESSLY RATIFY AND CONFIRM THE
WAIVER-OF-JURY-TRIAL PROVISIONS CONTAINED IN THE AGREEMENT AND THE LOAN
DOCUMENTS. BORROWERS, ADMINISTRATIVE AGENTS, BANKS, THE SYNDICATION AGENT, AND
THE JOINT ARRANGERS WAIVE THE RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION
WITH RESPECT TO ANY ASPECT OF THIS THIRD FORBEARANCE AGREEMENT.
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13. Effect and Construction of Forbearance Agreement. Except as
expressly provided herein, the Loan Documents shall remain in full force and
effect in accordance with their respective terms, and this Third Forbearance
Agreement shall not be construed to:
(a) impair the validity, perfection, or priority of any lien or
security interest securing the Loans or any of the other obligations of the
Borrowers under the Loan Documents;
(b) waive or impair any rights, powers, or remedies of Administrative
Agent under, or constitute a waiver of any provision of the Loan Documents on
termination of the Forbearance Period; or
(c) constitute an agreement by Administrative Agent or Banks or
require the Administrative Agent or Banks to extend the Forbearance Period,
grant additional forbearance periods, extend the time for payment of any of the
Loans or any of the other obligations of Borrowers, or provide any financial
accommodation under the Loan Documents.
14. Conflicts. If any express conflict between the terms of this
Third Forbearance Agreement and any of the Loan Documents arises, this Third
Forbearance Agreement shall govern.
15. Presumptions. Borrowers acknowledge that they have consulted with
and been advised by counsel and such other experts and advisors as each has
deemed necessary in connection with the negotiation, execution, and delivery of
this Third Forbearance Agreement and have participated in the drafting hereof.
Therefore, this Third Forbearance Agreement shall be construed without regard to
any presumption or rule requiring that it be construed against any one party
causing this Third Forbearance Agreement or any part hereof to be drafted.
16. Expenses. Borrowers shall pay all reasonable costs, fees, and
expenses of Administrative Agent (including the costs, fees, and expenses of
Administrative Agent's counsel) incurred by Administrative Agent in connection
with the negotiation, preparation, administration, and enforcement of this Third
Forbearance Agreement.
17. Entire Agreement. This Third Forbearance Agreement sets forth the
entire agreement among the parties hereto with respect to the subject matter
hereof. Borrowers have not relied on any agreements, representations, or
warranties of Administrative Agent or any Bank, except as specifically set forth
herein. Any promises, representations, warranties, or guarantees not herein
contained and hereinafter made shall have no force and effect unless in writing,
signed by each party hereto. Borrowers acknowledge that they are not relying on
oral representations or statements inconsistent with the terms and provisions of
this Third Forbearance Agreement.
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18. Further Assurance. Borrowers shall execute such other and further
documents and instruments as Administrative Agent may reasonably request to
implement the provisions of this Third Forbearance Agreement.
IN WITNESS WHEREOF, this Third Forbearance Agreement has been duly executed as
of the day and year first written above.
STANDARD AUTOMOTIVE CORPORATION
By: /s/ JAMES F. O'CROWLEY, III
--------------------------------------------
Name: James F. O'Crowley, III
Title: Director
ARELL MACHINING LTD.
By: /s/ JAMES F. O'CROWLEY, III
--------------------------------------------
Name: James F. O'Crowley, III
Title: Asst. Secretary
PNC BANK, NATIONAL ASSOCIATION, as
a Bank and as Administrative Agent
By: /s/ JAMES R. DE GENOVA
---------------------------------
Name: James R. De Genova
Title: Vice President
ING (U.S.) CAPITAL LLC, as a Bank and as
Syndication Agent
By: /s/ ROBERT FELLOWS
---------------------------------
Name: Robert L. Fellows
Title: Director
FLEET NATIONAL BANK, as successor
to SUMMIT BANK
By: /s/ STEPHEN HILL
---------------------------------
Name: Stephen Hill
Title: Vice President
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SOVEREIGN BANK
By:
---------------------------------
Name:
Title:
THE BANK OF NEW YORK
By: /s/ EDWARD J. DESALVIO
---------------------------------
Name: Edward J. DeSalvio
Title: Vice President
KEY BANK NATIONAL ASSOCIATION
By:
---------------------------------
Name:
Title:
OCEANFIRST BANK
By: /s/ WM. J. RUCKERT
---------------------------------
Name: Wm. J. Ruckert
Title: Senior Vice President
FIRSTAR BANK, N.A.
By: /s/ DANIEL J. FALSTAD
---------------------------------
Name: Daniel J. Falstad
Title: Attorney in Fact
PNC CAPITAL MARKETS, INC., as a
Joint Arranger
By: /s/ MICHAEL NARDO
-----------------------------
Name: Michael Nardo
Title: Vice President
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ING BARINGS, LLC, as a Joint
Arranger
By: /s/ ROBERT FELLOWS
---------------------------------
Name: Robert L. Fellows
Title: Director
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