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 A
Note originally dated September 29, 2000
$1,325,000.00 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 0000 Xxx Xxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 ("Maker" or "Borrower") hereby
unconditionally promises to pay to the order of FLEET NATIONAL BANK, a national
banking association with a place of business at 000 Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000 ("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 ONE MILLION THREE HUNDRED TWENTY-FIVE
THOUSAND AND 00/100 DOLLARS ($1,325,000.00), together with interest thereon 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. "Maturity Date" means October 1, 2004.
Section 1.12. "Modification" means that certain Modification Agreement
dated the date hereof by and among Borrower, Guarantor and Bank.
Section 1.13. "Note B" means that certain promissory note of even date
herewith made by Borrower to Bank in the original principal amount of
$1,000,000.
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Section 1.14. "Other Documents" means the Security Agreements, the
Guaranty Agreements, the Modification, and any other documents, instruments or
agreements executed by Borrower in connection with the Loan (excluding the
Original Note), as modified by the Modification.
Section 1.15. "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 1.16. "Security Agreements" has the meaning set forth in the
third paragraph hereof.
SECTION 2.
TERMS OF THE LOAN
This Note and Note B 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 upon the closing or consummation of a Trigger Event (as defined in the
Modification). The Original Note from Maker is hereby replaced and superseded in
its entirety by this Note and Note B. 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. Interest Rate and Payment of Interest.
(a) Commencing on the date hereof and continuing until
the Maturity Date, the outstanding principal amount of this Note shall bear
interest at a fixed rate per annum equal to seven percent (7.0%);
(b) Commencing on May 1, 2003 and continuing on the first
(1st) day of each month thereafter until the outstanding principal amount of
this Note is paid in full (whether at maturity or by reason of acceleration,
prepayment or otherwise), interest shall be payable monthly in arrears; and
(c) Interest shall be computed daily on the basis of a
year of three hundred sixty (360) days and paid for the actual number of days
elapsed during each accrual period. If the due date for any payment of principal
is extended by operation of law, interest shall be payable for such extended
time. If any payment required by this Note becomes due on a day that is not a
Business Day such payment may be made on the next succeeding Business Day, and
such extension shall be included in computing interest in connection with such
payment.
-4-
Section 2.2 Payment of Principal. The outstanding principal amount of
this Note shall be due and payable in eighteen (18) consecutive monthly
installments of SEVENTY-THREE THOUSAND SIX HUNDRED ELEVEN AND 11/100 DOLLARS
($73,611.11) each, commencing on May 1, 2003; provided that the outstanding
principal amount of the Note, together with all interest accrued thereon and all
other amounts due and payable by the Borrower hereunder and under the Other
Documents, shall be due and payable in full on the Maturity Date. Without
limiting the foregoing, the outstanding principal amount of this Note, and all
accrued and unpaid interest thereon, shall be prepaid upon the closing or
consummation of a Trigger Event (as such term is defined in the Modification).
Section 2.3. Prepayment. This Note may be prepaid in whole or in part
at any time, without premium or penalty.
Section 2.4. Overdue Payments. In the event of an Event of Default and
during the continuance thereof, overdue principal and, to the extent permitted
by applicable law, overdue interest and fees or any other amounts payable under
this Note shall bear interest from and including the due date thereof until
paid, compounded daily and payable on demand, at a rate per annum equal to
twelve percentage points (12%). In addition, if a payment of interest due under
this Note is not made within fifteen (15) days of its due date, Borrower shall
pay upon demand a late payment charge equal to five percent (5%) of the amount
then due.
Section 2.5. Method of Payment. All payments and prepayments of
principal and all payments of interest shall be made by Borrower to Bank at its
office located at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (or to such other
address as Bank may designate in writing), 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. All payments shall be applied first to any fees,
expenses and charges due to Bank under this Note, then to interest accrued on
this Note and finally to outstanding principal. Following acceleration, payments
shall be applied in Bank's sole and absolute discretion.
SECTION 3.
SECURITY FOR THE OBLIGATIONS
Section 3.1. Security. The obligations of the Borrower under this Note
shall be secured by:
(a) A security interest in all properties (excluding real
properties) and assets of Borrower, including goods, accounts receivable,
inventory, contract rights, accounts, documents, instruments and chattel paper,
equipment, 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
-5-
chattel paper, equipment, 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.
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. Use of Proceeds. The proceeds of this Note are to be used
for general commercial purposes and no part of such proceeds will be used, in
whole or in part, for the purpose of purchasing or carrying any "margin
security" as such term is defined in Regulation U of the Board of Governors of
the Federal Reserve System.
Section 4.4. 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.
-6-
Section 4.5. 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 4.6. 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 4.7. Other Defaults. Borrower is not in default in the
performance, observance or fulfillment of any material contractual obligation
other than as set forth on Schedule A hereof.
Section 4.8. 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.
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. Encumbrances. Except as set forth on Schedule A hereof,
Borrower shall not create, incur, assume or suffer to exist any Encumbrance upon
its properties and assets, or
-7-
assign or otherwise convey any right to receive income, with or without
recourse, except Encumbrances in favor of Bank.
Section 5.4. Financial Information. Borrower shall furnish to Bank:
(a) As soon as available, but in no event later than the
later of (i) ninety (90) days after the end of each fiscal year of the Borrower
and Guarantor and (ii) the filing of the Borrower's Annual Report on Form 10-K
with the U.S. Securities and Exchange Commission (the "SEC") for such year,
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 the
later of (i) forty five (45) days after the end of each fiscal quarter of
Borrower and Guarantor and (ii) the filing of the Borrower's Quarterly Report on
Form 10-Q with the SEC for such fiscal quarter, 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) Subject to the Bank's execution of such
confidentiality agreements as Borrower may reasonably request, as soon as
available, but in no event later than one (1) Business Day after distribution
thereof, copies of any notice given by Borrower to any other lender of Borrower.
(d) With reasonable promptness, such further and
additional financial information as reasonably requested by Bank.
SECTION 7
EVENTS OF DEFAULT; ACCELERATION
If any of the following events (individually, an "Event of Default"
and, collectively, "Events of Default", or, if the giving of notice or the lapse
of time or both is required, then, prior to such notice and/or lapse of time,
individually, a "Default" and collectively, "Defaults") shall occur:
(a) if any amount owing under this Note is not paid when
due, or the Borrower shall default in the performance of or compliance with any
other term or provision contained in this Note or any of the Other Documents;
(b) if any material representation or warranty of the
Borrower in any of the Other Documents shall prove to have been false in any
material respect upon the date when made;
-8-
(c) if the Borrower makes an assignment for the benefit
of creditors, or admits in writing its inability to pay or generally fails to
pay its debts as they mature or become due, or petitions or applies for the
appointment of a trustee or other custodian, liquidator or receiver of the
Borrower or of any substantial part of the assets of the Borrower or commences
any case or other proceeding relating to the Borrower under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or hereafter in effect, or
takes any action to authorize or in furtherance of any of the foregoing; or if
any such petition or application is filed or any such case or other proceeding
is commenced against the Borrower;
(d) a decree or order is entered appointing any such
trustee, custodian, liquidator or receiver or adjudicating the Borrower bankrupt
or insolvent, or approving a petition in any such case or other proceeding, or a
decree or order for relief is entered in respect of the Borrower in an
involuntary case under Federal bankruptcy laws as now or hereafter constituted
and such decree or order shall remain in effect for more than sixty (60) days,
whether or not consecutive;
(e) if there shall remain in force, undischarged,
unsatisfied and unstayed, for more than thirty (30) days, whether or not
consecutive, any final judgment not covered by insurance against the Borrower
which, with other outstanding final judgments, undischarged, against the
Borrower exceeds in the aggregate FIFTY THOUSAND AND 00/100 DOLLARS
($50,000.00);
(f) if there shall have occurred after the date hereof,
any changes in the assets, liabilities, financial condition, business or
operations of the Borrower which, individually or in the aggregate, are
materially adverse;
(g) if there shall have occurred a default or an event of
default under any of the Other Documents after expiration of any applicable
notice and cure periods, if any;
(h) if any Other Document shall be canceled, terminated,
revoked or rescinded otherwise than in accordance with the express prior written
agreement, consent or approval of the Bank; or any action at law, suit in equity
or other legal proceeding to cancel, revoke or rescind any Other Document shall
be commenced by or on behalf of any Person bound thereby, or by any governmental
or regulatory authority or agency of competent jurisdiction; or any court or any
other governmental or regulatory authority or agency of competent jurisdiction
shall make a determination that, or shall issue a judgment, order, decree or
ruling to the effect that any Other Document or any one or more of the material
covenants, agreements or obligations of any Person or Persons under any Other
Document are illegal, invalid or unenforceable in accordance with the terms
thereof; or
(i) if at any time during the term of this Note, Borrower
shall be considered in default under any loan extended by General Electric
Capital Corporation and General Electric Capital Corporation does not waive any
such default;
-9-
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; provided, that in the case of any
Event of Default specified in Section 7(c) or Section 7(d) above, all such
amounts owing shall become immediately due and payable automatically and without
any requirement of notice from the Bank. In case any one or more of the Events
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 8
MISCELLANEOUS PROVISIONS
Section 8.1. 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 8.2. 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, 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 (whether matured or
unmatured) of Borrower under this Note and any and all other liabilities,
direct, or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, of Borrower to Bank.
Section 8.3. 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
-10-
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.
Section 8.4. 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
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Area Manager - Managed Asset Division
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxxx, P.C.
Xxx Xxxxx Xxxxxx
XX Xxx 000000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
If to Borrower; to the address set forth in the preamble.
Section 8.5. 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 8.6. 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;
(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; and
-11-
(c) subject to obtaining the prior written consent of the
Maker, consent to (i) all renewals, extensions or modifications of this
Note (including any affecting the time of payment).
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.
Section 8.7. 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 8.8. 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 8.9. 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 8.10. 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, 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
-12-
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.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the
date first set forth above.
EDAC TECHNOLOGIES CORPORATION
By:/s/Xxxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: President
Duly Authorized
SCHEDULE A
Section 4.6. - Consent of General Electric Capital Corporation ("GE") Required
and Received
Section 4.7. - 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 GE, which defaults were waived
pursuant to the terms of that certain Waiver, Consent and Amendment No.2 by and
between Borrower, Apex and GE
Section 5.3. - 1. Liens in favor of GE
2. See UCC Lien Search results delivered to GE on or
about September 29, 2000;
3. See liens listed in the Title Insurance Commitment
delivered to GE on or about September 29, 2000;
4. State of Connecticut liens (under the Assistance
Agreement dated May 3, 1995 by and between Apex and the State of
Connecticut);
5. Mortgage lien in favor of Xxxxxx X. Xxxxxx, Xxxxx X.
Xxxxxx and Xxxxxxx X. Xxxxxx (17 and 00 Xxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxx); and
6. "Permitted Encumbrances" as defined in that certain
Loan and Security Agreement dated as of September 29, 2000 by and among
GE, Borrower and Apex, as amended.
