Back to top

Re: Forbearance and Amendment Agreement

Forbearance Agreement

Re:
Forbearance and Amendment Agreement | Document Parties: PRESSTEK INC /DE/ You are currently viewing:
This Forbearance Agreement involves

PRESSTEK INC /DE/

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: Re: Forbearance and Amendment Agreement
Governing Law: New Hampshire     Date: 10/2/2009
Industry: Misc. Capital Goods     Law Firm: Bingham McCutchen     Sector: Capital Goods

Re:
Forbearance and Amendment Agreement, Parties: presstek inc /de/
50 of the Top 250 law firms use our Products every day

October 1, 2009

Presstek, Inc.

10 Glenville Street

Greenwich, Connecticut 06831

 

Re:

Forbearance and Amendment Agreement

Ladies and Gentlemen:

Reference is hereby made to the Amended and Restated Credit Agreement, dated as of November 5, 2004 (as amended and in effect from time to time, the " Credit Agreement "), among Presstek, Inc. (the “ Borrower ”), Lasertel Inc., Precision Lithograining Corp., Precision Acquisition Corp., SDK Realty Corp., ABD International, Inc., Presstek Capital Corp., Presstek Overseas Corp., ABD Canada Holdings, Inc., Presstek New York, Inc. (collectively, the “ Guarantors ” and, together with the Borrower, the “ Obligors ”), the various lending institutions party thereto (collectively, the " Lenders "), and RBS Citizens, National Association (“ Citizens ”), as Administrative Agent for the Lenders (in such capacity, the " Administrative Agent "). All capitalized terms used herein without definition shall have the meanings assigned to such terms in the Credit Agreement.

Each Obligor acknowledges and agrees that certain Events of Default now exist and are continuing under the Loan Documents. Each Obligor also acknowledges and agrees that, as a result of the foregoing, the Administrative Agent or the Requisite Lenders may, if the Administrative Agent or the Requisite Lenders elect in their sole discretion to do so, proceed to enforce at any time on or after the date hereof any of their rights and remedies under the Loan Documents or at law or in equity, including, without limitation, the rights and remedies set forth in Section 9.2 of the Credit Agreement. Notwithstanding the foregoing, the Obligors have each now requested that the Lenders forbear from enforcing their rights and remedies under the Loan Documents for the time period and on the conditions set forth herein.

In response to such request, the Administrative Agent and the Lenders have agreed to forbear from enforcing such rights and remedies until the Forbearance Termination Date (as hereinafter defined) upon the following terms and conditions:

 

Section 1.

Ratification of Existing Agreements.

All of the Obligors’ indebtedness, liabilities and obligations to the Lenders as evidenced by or otherwise arising under the Loan Documents are, by the Obligors’ execution of this Agreement, ratified and confirmed in all respects. In addition, by the execution of this Agreement, each Obligor represents, warrants and agrees that (a) as of October 1, 2009, the aggregate outstanding principal amount of the Term Loans is $834,000; (b) as of October 1, 2009, the aggregate outstanding principal amount of the Revolving Loans is $26,362,428.93 (including an outstanding Letter of Credit in the stated amount of $1,250,000); and (c) to its knowledge, none of the Obligors has any defense, counterclaim, right of set-off, or right of recoupment of any kind to or with respect to its obligation to pay, as and when due and payable

 


-2-

 

pursuant to the Loan Documents, the Term Loans and Revolving Loans, accrued and unpaid interest thereon, and all of the other Obligations.

 

Section 2.

Representations and Warranties.

All the representations and warranties made by the Obligors in the Loan Documents are true and correct on the date hereof as if made on and as of the date hereof, except to the extent that any of such representations and warranties relate by their terms to a prior date.

 

Section 3.

Forbearance Conditions.

Subject to the terms and conditions set forth herein, the Administrative Agent and Lenders agree to forbear from exercising their rights and remedies under the Loan Documents, including without limitation, commencing legal action to enforce the agreements and obligations of the Obligors under the Loan Documents, until the date (the “ Forbearance Termination Date ”) which is the earliest to occur of (a) the occurrence or continuance after the date hereof of any Event of Default other than the Events of Default listed on Schedule 1 attached hereto (the Events of Default listed on Schedule 1 being referred to herein as “ Specified Defaults ”); (b) the failure of any Obligor to comply with any term or condition set forth in this Agreement; (c) the occurrence after the date hereof of any event or circumstance that has, or could be reasonably expected to have, a Material Adverse Effect; (d) any Obligor or any Affiliate of any Obligor shall commence any litigation or other proceeding against the Administrative Agent or any Lender or any Affiliate of the Administrative Agent or any Lender in connection with any of the transactions contemplated by any of the Loan Documents (which term shall include without limitation this Agreement); (e) the failure of actual cash flow, as projected in the projections to be delivered by the Borrower pursuant to Section 5.3 (as added to the Credit Agreement hereby), for any month, commencing with the month ended September 30, 2009, to be at least eighty percent (80%) of the amount of cash flow projected for such month by such projections; and (f)  November 30, 2009, provided that the date set forth in this clause (f) shall be automatically extended to December 15, 2009 without any further action of the parties hereto upon the Borrower’s payment to the Administrative Agent, in immediately available funds, for the pro rata accounts of each of the Lenders in accordance with the aggregate amount of Obligations owed to each of them, of $20,000. On and after the Forbearance Termination Date, the Administrative Agent in its sole and absolute discretion (or as directed by the Requisite Lenders in their sole and absolute discretion) may proceed to enforce any or all of its and the Lenders’ rights under or in respect of the Loan Documents and applicable law.

 

Section 4.

Conditions Precedent.

The forbearance obligations of the Lenders hereunder shall be subject to the satisfaction on or before the date hereof of the following conditions precedent (the date that such conditions are satisfied being referred to herein as the “ Forbearance Effective Date ”):

(a)       This Agreement shall be executed by each of the Obligors, each of the Lenders and the Administrative Agent.

(b)       No Event of Default (other than the Specified Defaults) shall have occurred and be continuing as of the date hereof.

 


-3-

 

(c)       The Borrower shall have paid to the Administrative Agent, in immediately available funds, for the pro rata accounts of the Lenders in accordance with the aggregate amount of Obligations owed to each of them, $125,000 of the Forbearance Fee due in accordance with Section 2.6(f) of the Credit Agreement (which such Section 2.6(f) is being added to the Credit Agreement as set forth in Section 5(e) below).

(d)       The Borrower shall have paid to the Administrative Agent’s counsel, Bingham McCutchen LLP (“Bingham”), in immediately available funds, all reasonable legal fees and disbursements owed to Bingham for the services billed by it on or before the date hereof.

 

Section 5.

Amendments to Credit Agreement.

The Credit Agreement is amended as of the Forbearance Effective Date as follows (and, except to the extent expressly provided otherwise in this Section 5, each such amendment shall continue in effect after the Forbearance Termination Date):

(a)       The following definitions are hereby added to Section 1 of the Credit Agreement in their appropriate alphabetical order:

Forbearance Agreement ” shall mean the Forbearance and Amendment Agreement dated as of October 1, 2009 by and among the Borrower, the Guarantors, the Administrative Agent and the Lenders, as amended from time to time.

Forbearance Effective Date ” shall mean the Forbearance Effective Date as defined in the Forbearance Agreement.

Forbearance Fee ” shall have the meaning assigned to it in Section 2.6.

 

Forbearance Termination Date ” shall mean the Forbearance Termination Date as defined in the Forbearance Agreement.

 

Projected Cash Flow Report ” shall have the meaning assigned to it in Section 5.3.

 

Refinancing ” shall have the meaning assigned to it in Section 6.13.

 

Rolling Cash Flow Report ” shall have the meaning assigned to it in Section 5.3.

(b)       The definition of “Commitment Termination Date” in Section 1 of the Credit Agreement is hereby amended by deleting “November 4, 2009” therefrom and by substituting therefor “the Forbearance Termination Date”.

(c)       The definition of “Prime Rate” in Section 1 of the Credit Agreement is hereby amended by deleting “Citizens Bank New Hampshire” therefrom and by substituting therefor “RBS Citizens, National Association”.

 


-4-

 

(d)       The aggregate Revolving Loan Commitment of the Lenders is hereby reduced to $27,000,000 on and as of the Forbearance Effective Date. The Revolving Loan Commitment of each Lender is hereby reduced as of such date to the amounts set forth on Schedule 2 hereto.

(e)       The following subsection (g) is hereby added to the end of Section 2.4 of the Credit Agreement:

(g) Notwithstanding anything to the contrary set forth in this Section 2.4, from and at all times after the Forbearance Effective Date, Borrower shall pay interest to Administrative Agent on all Loans, for the ratable benefit of Lenders in accordance with the various Loans being made by each Lender, in arrears on the first Business Day of each month to occur while such Loan is outstanding and on the date that each such Loan is paid in full, at a rate equal to the Prime Rate plus four percent (4.00%) per annum; provided, however, that on and at all times after the Forbearance Termination Date, at the election of Administrative Agent (or upon the written request of Requisite Lenders), the interest rate applicable to the Loans shall be the Prime Rate plus six percent (6.00%) per annum, and on and after the Forbearance Termination Date all references in this Agreement and the other Loan Documents to the “Default Rate” shall mean and refer to the Prime Rate plus six percent (6.00%) per annum. Without limitation of the generality of the foregoing, from and after the Forbearance Effective Date, Borrower shall not have the right to elect to pay interest on any Loan based on the LIBOR Rate.

(f)        The following subsection (f) is hereby added to the end of Section 2.6 of the Credit Agreement:

(f) Borrower shall pay to Administrative Agent, in immediately available funds, for the pro rata accounts of the Lenders in accordance with the aggregate amount of Obligations owed to each of them, a forbeara


 
SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)


Try our advanced search >>
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates
Email:
This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more