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EXHIBIT 10.37
FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT (this "Agreement") is made and effective as
of the 14th day of February, 2000, by and among the financial institutions
listed on the signature pages hereof (individually, a "Lender" and collectively,
the "Lenders"), Bank of America, National Association, formerly BankAmerica
Business Credit, Inc., as agent for the Lenders (in its capacity as agent, the
"Agent"), and McInnes Steel Company, McInnes International, Inc., Taylor Forge
Company, Erie Bronze & Aluminum Company, American Handling, Inc., Northern Steel
Company, Micafil, Inc. and Eballoy Glass Products Company (individually, a
"Borrower" and collectively, the "Borrowers"). All capitalized terms used herein
but not otherwise defined shall have the meanings ascribed to them in the Loan
Agreement (as hereinafter defined).
RECITALS
A. Lenders, Agent and Borrowers have entered into that certain Loan and
Security Agreement dated as of February 25, 1999, which Loan and Security
Agreement has been amended by various Amendments dated June 24, 1999, August 5,
1999, September 22, 1999 and January 20, 2000 (as so amended, the "Loan
Agreement").
B. By this Agreement, Borrowers have acknowledged to Lenders that
Borrowers have breached certain provisions of the Loan Agreement (the
"Forbearance Events of Default", as that term is hereinafter defined) and that
the breaches constitute "Events of Default" under the Loan Agreement.
C. Borrowers have requested that Lenders: (i) forbear from exercising
their rights and remedies under the Loan Agreement; and (ii) continue making
revolving advances under the Loan Agreement. Lenders have agreed to Borrowers'
requests, but only in accordance with, and to the extent of, the terms and
conditions of this Agreement.
AGREEMENT
In consideration of the recitals set forth above, the covenants and
agreements hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties,
Borrowers and Lenders agree as follows:
1. Preambles. The preambles to this Agreement are true and correct
and are fully incorporated herein by this reference with the same force and
effect as though restated herein.
2. Defined Terms. To the extent not otherwise defined herein, all
capitalized terms used in this Agreement shall have the respective meanings
ascribed to them in the Loan Agreement.
3. Inducement by Borrowers. To induce Lenders and Agent to enter
into this Agreement:
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(a) Compliance with Loan Documents. Each Borrower represents
and warrants that on the date hereof and, after giving effect to this Agreement,
other than the Forbearance Events of Default, that such Borrower is in
compliance with all of the terms and provisions set forth in the Loan Agreement
and the other Loan Documents, and to the best of such Borrower's knowledge, no
Event of Default and no event which, upon notice or lapse of time, or both,
would constitute an Event of Default, has occurred and is continuing. Agent and
Lenders represent and warrant that to the best of their knowledge, none of Agent
and Lenders is aware of any Event of Default under the Loan Agreement or the
Loan Documents as of the date hereof, other than the Forbearance Events of
Default.
(b) Representations and Warranties. Each Borrower represents
and warrants that: (i) except for the Forbearance Events of Default, on the date
hereof, the representations and warranties set forth in the Loan Agreement are
true and correct, with the same effect as though such representations and
warranties had been made on the date hereof, except to the extent that such
representations and warranties are limited by their terms to an earlier date;
and (ii) except for the Forbearance Events of Default and to the best of each
Borrower's knowledge, such Borrower is in compliance with all of the terms and
provisions of the Loan Agreement and no Event of Default has occurred and is
continuing.
(c) Authority. Each Borrower represents and warrants that it
has full power and authority to enter into this Agreement, and has full power
and authority to incur and perform the obligations provided for under this
Agreement, all of which have been duly authorized by all proper and necessary
action, and that no consent or approval of shareholders or creditors or of any
public authority or regulatory body is required as a condition to the validity
or enforceability of this Agreement.
(d) Agreement as Binding Agreement. Each Borrower represents
and warrants that this Agreement constitutes the valid and legally binding
obligation of each Borrower, fully enforceable against such Borrower in
accordance with its terms.
(e) No Conflicting Agreements. Each Borrower represents and
warrants that the execution and performance by such Borrower of this Agreement
will not: (i) violate any provision of law, any order of any court or other
agency of government, or the charter or articles of incorporation of such
Borrower; (ii) violate any indenture, contract, agreement or other instrument to
which such Borrower is a party, or by which any of its property is bound, or be
in conflict with, result in a breach of or constitute (with due notice and/or
lapse of time) a default under, any such indenture, contract, agreement or other
instrument; or (iii) result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of such
Borrower, other than in favor of Lenders or Agent.
(f) Acknowledgment. Each Borrower acknowledges and agrees that
the following Events of Default under the Loan Agreement (collectively the
"Forbearance Events of Default") have occurred:
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(i) Borrowers failed to comply with various provisions of the
Loan Agreement as follows:
(A) Section 8.7, in that Northern is not Solvent as of
the date hereof.
(B) Section 8.18, in that a default has occurred
under the Note and Warrant Purchase Agreement occasioned by Borrower's failure
to make a payment due thereunder as a result of the receipt of notice of the
occurrence of an Event of Default under the Loan Agreement from Lenders dated
February 14, 2000.
(C) Section 8.24, in that losses have occurred as of
the date of, and as reflected in, the most recent Financial Statements delivered
to Lenders, which were dated as of December 31, 1999, which losses may
constitute or qualify as a material adverse change in the business, operations,
or conditions (financial or otherwise) of Borrower.
(D) Section 8.29, in that a default exists under the
Subordinated Debt Loan Documents as referenced in subparagraph (B) above.
(E) Section 9.9, in that Borrowers shut down the
operations of Northern.
(F) Section 9.26, in that Centrum and its Subsidiaries
failed to maintain the Consolidated Adjusted Tangible Net Worth threshold
required in said Section 9.26 as of December 31, 1999.
(G) Section 9.27, in that Centrum and its Subsidiaries
failed to maintain the Fixed Charge Coverage Ratio required in said Section 9.27
as of December 31, 1999.
(H) Section 9.29, in that Borrowers failed to maintain
the Required Availability required in said Section 9.29.
In addition, Borrowers failed to divest the material handling portion of
Borrowers' business prior to January 15, 2000 as Borrowers and Lender had
previously agreed.
4. Forbearance. In accordance with the terms hereof, Lenders agree
that, notwithstanding the Forbearance Events of Default and until the expiration
of the "Forbearance Period" (as hereinafter defined), Lenders will temporarily
forbear from exercising any rights and remedies under the Loan Documents and
applicable law, and Lenders will continue to make loans to Borrowers in
accordance with and subject to the terms and conditions of the Loan Agreement,
as modified and amended by the terms of this Agreement, as though the
Forbearance Events of Default had not occurred and did not exist. Upon
termination of the Forbearance Period, Lenders' agreement to forbear hereunder
shall be null and void and Lenders shall be free to exercise their rights and
remedies under the Loan Agreement and other Loan Documents and applicable law,
immediately and without further notice. As used herein, the term "Forbearance
Period" means the period
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beginning on the date hereof and continuing until the earliest to occur of: (a)
March 31, 2000; (b) the date of the occurrence of any Event of Default, other
than the Forbearance Events of Default, under the Loan Agreement; (c) the
occurrence of any Event of Default, other than the Forbearance Events of
Default, under any of the Loan Documents; (d) the occurrence of a "Material
Adverse Change" (as that term is hereinafter defined); and (e) failure of
Borrowers to perform, comply with and observe each and every covenant, warranty,
duty and obligation of Borrowers hereunder. As used herein, the term "Material
Adverse Change" means any material adverse change from and after the date hereof
on (a) the financial condition, credit, business, prospects, properties or
operations of the Borrowers and any Subsidiaries taken as a whole, (b) the
ability of the Borrowers or any Subsidiaries, if any, to perform its or their
obligations under the Loan Agreement and the Loan Documents to which it is or
they are a party on a timely basis other than with respect to the Forbearance
Defaults, or (c) the value of the Collateral.
5. Agreement with Respect to Loans. Notwithstanding any other
provisions expressed or implied to the contrary in the Loan Agreement relating
to the Forbearance Defaults, Lenders agree to continue to make Revolving Loans
to Borrowers subject to all of the other provisions of the Loan Agreement during
the Forbearance Period, provided that (i) the Maximum Revolving Amount shall
mean $14,000,000; (ii) Lenders shall make no new Capital Expenditure Loans and
shall have no obligation to make any new Capital Expenditure Loans; and (iii)
Lenders shall make no new loans under the Acquisition Line and shall have no
obligation to make any new Loans under the Acquisition Line.
6. No Waiver of Forbearance Events of Default. Nothing in this
Agreement shall be deemed to waive the Forbearance Events of Default, any other
Event of Default, or, except as expressly provided herein, limit or impair
Agent's or Lenders' rights or remedies under the Loan Agreement, the Loan
Documents, or applicable law, all of which are hereby expressly reserved.
7. Conditions Precedent. This Agreement shall become effective as of
the date hereof upon the satisfaction of each of the following conditions
precedent:
(a) This Agreement. Agent shall have received a duly authorized and
executed original counterpart of this Agreement;
(b) Consents and Reaffirmations. Agent shall have received an
executed original Consent and Reaffirmation in form and substance acceptable to
Lenders from each of the Guarantors; and
(c) Forbearance Fee. Borrowers shall pay to Lenders a Forbearance
Fee of $25,000, which shall be due and payable on the earlier of (i) March 31,
2000, and (ii) the date the Forbearance Period terminates.
8. Affirmation of Indebtedness; Release of Lenders. Borrowers hereby
agree and acknowledge that (a) as of the end of the day on February 11, 2000,
the outstanding principal balance of (i) the Total Facility was $23,658,886.41;
plus (ii) accrued and unpaid interest, fees, costs, expenses and other amounts
owing to Lenders under the Loan Agreement and other Loan
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Documents; (b) because the Forbearance Events of Default exist, the Default Rate
continues to apply to the Total Facility, including without limitation, the
Aggregate Revolver Outstandings; (c) Agent and Lenders have performed all
obligations and duties owed to Borrowers as of the date hereof; and (d) in
consideration of Lenders' forbearance and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each Borrower fully and forever remises, releases and discharges and does hereby
fully and forever remise, release and discharge Agent and each Lender and each
of its subsidiary and affiliated corporations, and each and all of its or their
directors, officers, employees, attorneys, accountants, consultants, and other
agents, of and from all manner of actions, cause and causes of action, expenses,
losses, damages, judgments, executions, claims and demands of whatsoever kind or
nature, of law or in equity, whether known or unknown, arising out of or
relating in any manner, cause or thing whatsoever, which such Borrower may have
had, or now has, or which the such Borrower hereafter can, shall or may have,
for or by reason of any manner, cause or thing whatsoever, whenever arising, to
and including the date of this Agreement.
9. Event of Default. Each Borrower hereby acknowledges and agrees that
a breach by Borrowers of any term, provision, covenant or condition herein set
forth or herein required of Borrowers to be kept or performed, shall constitute
an Event of Default under the Loan Documents.
10. Costs. Each Borrower shall pay or cause to be paid to Agent and
Lenders all fees and expenses of Agent and Lenders relating to this Agreement
and the transactions contemplated herein, including, without limitation, fees
and expenses of Agent's counsel (including but not limited to attorneys and
paralegal who are employees of Agent) (the "Costs"). Each Borrower hereby agrees
that the Costs shall be deemed added to the Obligations as incurred by Lenders.
11. No Custom; Section Headings. This Agreement shall not establish a
custom or course of dealing, or waive, limit or condition the rights and
remedies of Lenders under the Loan Agreement or the Loan Documents, all of which
rights and remedies are expressly reserved. The section headings and captions
herein are for convenience of reference only and shall not be deemed to limit,
impair or affect the interpretation and construction of the terms hereof.
12. Representation by Counsel. Each Borrower hereby represents and
warrants to Agent and Lenders that throughout the negotiations, preparation and
execution of this Agreement and the closing hereunder, such Borrower has been
represented by legal counsel of its own choosing and that this Agreement was
entered into by the free will of such Borrower and pursuant to arm's-length
negotiations.
13. Full Force and Effect. Except as may be expressly set forth herein
to the contrary, the Loan Documents remain unmodified and all other terms and
conditions of the Loan Documents remain in full force and effect. Each Borrower
hereby reaffirms its obligation to fulfill and comply with each of its
covenants, duties and obligations under the Loan Agreement and each of the other
Loan Documents. Notwithstanding anything to the contrary stated herein, to the
extent that the terms and conditions of this Agreement conflict with the terms
and conditions of the Loan Documents, this Agreement shall control.
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14. Counterparts. This Agreement may be signed in counterparts, each
of which shall be deemed an original and all of which shall be deemed to
constitute one agreement.
15. Merger; Modification. This Agreement embodies the entire agreement
between the parties hereto with respect to the matters addressed herein and
supersedes all prior oral and written and all contemporaneous oral
communications with respect to such matters. This Agreement shall not be
modified or amended or extended except in a writing signed by the parties
hereto.
16. Further Assurances. Each Borrower shall execute and/or deliver any
other agreements or documents which Agent or Lenders deem reasonably necessary
to achieve the objectives of this Agreement.
17. GOVERNING LAW/VENUE. THE LOAN DOCUMENTS SHALL BE DEEMED CONTRACTS
AND INSTRUMENTS MADE UNDER THE LAWS OF THE STATE OF ILLINOIS AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE
OF ILLINOIS AND THE LAWS OF THE UNITED STATES OF AMERICA, EXCEPT WITH RESPECT TO
SPECIFIC LIENS, OR THE PERFECTION THEREOF, EVIDENCED BY LOAN DOCUMENTS COVERING
REAL OR PERSONAL PROPERTY WHICH BY THE LAWS APPLICABLE THERETO ARE REQUIRED TO
BE CONSTRUED UNDER THE LAWS OF ANOTHER JURISDICTION. EACH BORROWER HEREBY
IRREVOCABLY SUBMITS ITSELF TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND
FEDERAL COURTS OF THE STATE OF ILLINOIS AND AGREES AND CONSENTS THAT SERVICE OF
PROCESS MAY BE MADE UPON IT IN ANY LEGAL PROCEEDING RELATING TO THE LOAN
DOCUMENTS OR THE INDEBTEDNESS BY ANY MEANS ALLOWED UNDER ILLINOIS OR FEDERAL
LAW. VENUE FOR ANY LEGAL PROCEEDING MAY BE COOK COUNTY, ILLINOIS OR, IN AGENT'S
SOLE DISCRETION, ANY OTHER VENUE PERMITTED BY APPLICABLE LAW.
18. WAIVER OF JURY TRIAL. EACH BORROWER, LENDERS AND AGENT EACH HEREBY
WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION, CAUSE OF ACTION,
SUIT OR PROCEEDINGS (a) ARISING UNDER THIS AGREEMENT, THE OTHER LOAN DOCUMENTS
OR ANY OTHER INSTRUMENT, DOCUMENT, OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR (b) IN ANY WAY CONNECTED WITH OR RELATED TO OR INCIDENTAL
TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS
AGREEMENT, OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. EACH BORROWER, LENDERS AND AGENT HEREBY AGREE AND CONSENT THAT ANY
SUCH CLAIM, DEMAND, ACTION, CAUSE OF ACTION, SUIT OR PROCEEDING SHALL BE DECIDED
BY A COURT TRIAL, WITHOUT A JURY, AND THAT ANY PARTY MAY FILE AN ORIGINAL
COUNTERPART OR COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
BORROWERS:
McINNES STEEL COMPANY
By: /s/ Timothy M. Hunter
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Name: Timothy M. Hunter
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Title: Exec. Vice President CFO
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McINNES INTERNATIONAL, INC.
By: /s/ Timothy M. Hunter
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Name: Timothy M. Hunter
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Title: Secretary/Treasurer
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TAYLOR FORGE COMPANY
By: /s/ Timothy M. Hunter
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Name: Timothy M. Hunter
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Title: Vice President/Treasurer
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ERIE BRONZE & ALUMINUM COMPANY
By: /s/ Timothy M. Hunter
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Name: Timothy M. Hunter
------------------------------------
Title: Secretary/Treasurer
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AMERICAN HANDLING, INC.
By: /s/ Timothy M. Hunter
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Name: Timothy M. Hunter
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Title: Vice President/Secretary/Treasurer
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NORTHERN STEEL COMPANY
By: /s/ Timothy M. Hunter
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Name: Timothy M. Hunter
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Title: Treasurer/Asst. Secretary
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MICAFIL, INC.
By: /s/ Timothy M. Hunter
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Name: Timothy M. Hunter
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Title: Treasurer/Asst. Secretary
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EBALLOY GLASS PRODUCTS COMPANY
By: /s/ Timothy M. Hunter
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Name: Timothy M. Hunter
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Title: Secretary/Treasurer
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AGENT:
BANK OF AMERICA, NATIONAL ASSOCIATION,
as the Agent
By: /s/ Stephen G. Bernardo
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Name: Stephen G. Bernardo
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Title: Vice President
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LENDER:
BANK OF AMERICA, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Stephen G. Bernardo
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Name: Stephen G. Bernardo
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Title: Vice President
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CONSENTS AND REAFFIRMATIONS
The undersigned hereby consent to the terms and conditions of that
Forbearance Agreement to Loan and Security Agreement dated February 14, 2000,
among the financial institutions listed on the signature pages thereto
(individually, a "Lender" and collectively, the "Lenders"), Bank of America,
National Association, formerly BankAmerica Business Credit, Inc., as agent for
the Lenders(in its capacity as agent, the "Agent"), and McInnes Steel Company,
McInnes International, Inc., Taylor Forge Company, Erie Bronze & Aluminum
Company, American Handling, Inc., Northern Steel Company, Micafil, Inc. and
Eballoy Glass Products Company, and reaffirm their obligations under those
certain Guaranty of Payment Agreements each dated as February 25, 1999
(collectively, the "Corporate Guaranties") made by the undersigned in favor of
the Agent and the Lenders, and acknowledge and agree that the Corporate
Guaranties and all other Loan Documents remain in full force and effect.
Dated as of February 14, 2000.
CENTRUM INDUSTRIES, INC.
By: /s/ Timothy M. Hunter
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Name: Timothy M.Hunter
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Title: CFO/Secretary/Treasurer
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McINNES SERVICES, INC.
By: /s/ Timothy M. Hunter
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Name: Timothy M. Hunter
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Title: Secretary/Treasurer
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LASALLE EXPLORATION, INC.
By: /s/ Timothy M. Hunter
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Name: Timothy M. Hunter
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Title: Treasurer/Asst. Secretary
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