WAIVER AND AMENDMENT AGREEMENT
WAIVER AND AMENDMENT AGREEMENT (this "Agreement"), dated as of
December 8, 1998, between General Electric Capital Corporation, a New York
corporation (the "Lender"), Polychem Corporation, a Pennsylvania corporation
("Polychem"), The Eastwind Group, Inc., a Delaware corporation ("Eastwind"), and
ConMat Technologies, Inc., a Florida corporation ("ConMat"). Unless otherwise
stated or defined herein, capitalized terms used herein shall have the meanings
given to them in the Loan and Security Agreement.
WHEREAS, Lender and Polychem are parties to a Loan and Security
Agreement (the "Loan and Security Agreement"), dated as of September 30, 1998,
pursuant to which Lender has agreed to make revolving credit advances and a term
loan to Polychem;
WHEREAS, Lender and Eastwind are parties to a Guarantee (the
"Guarantee"), dated as of September 30, 1998, pursuant to which Eastwind has
agreed to guarantee the Obligations (as defined therein) of Polychem under the
Loan and Security Agreement;
WHEREAS, Eastwind currently owns all of the outstanding shares of
Polychem (the "Polychem Common Stock");
WHEREAS, Lender and Eastwind are parties to a Stock Pledge Agreement
(the "Stock Pledge Agreement"), dated as of September 30, 1998, pursuant to
which Eastwind has pledged the Polychem Common Stock to Lender;
WHEREAS, Section 5(i) of the Loan and Security Agreement requires
Polychem and Eastwind, in its capacity as a Credit Party, to obtain the written
consent of Lender prior to directly or indirectly selling, transferring or
otherwise disposing of the Polychem Common Stock;
WHEREAS, Section 6(a) of the Stock Pledge Agreement requires Eastwind
to obtain the written consent of Lender prior to selling, transferring or
otherwise disposing of the Polychem Common Stock;
WHEREAS, pursuant to Section 6.3 of the Loan and Security Agreement,
Eastwind, in its capacity as a Credit Party, has delivered a power of attorney
in favor of the Lender, dated as of September 30, 1998;
WHEREAS, Eastwind and ConMat desire to enter into a Share Exchange
Agreement (the "Share Exchange Agreement") whereby ConMat will acquire the
Polychem Common Stock from Eastwind in exchange for one million shares of newly
issued common stock of ConMat, par value $0.001 per share and one million three
hundred thirty-three thousand three hundred thirty-three (1,333,333) shares of
newly issued Series A convertible preferred stock of ConMat, par value $0.001
per share (the "Share Exchange"); and
WHEREAS, it is a condition to the closing under the Share Exchange
Agreement that the Lender release Eastwind from all liability under the
Guarantee.
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NOW THEREFORE, intending to be legally bound hereby and in
consideration of the mutual covenants contained herein and for other good,
valuable and sufficient consideration, the receipt and sufficiency of which is
hereby acknowledged, it is hereby agreed as follows:
1. Waiver. Lender hereby waives compliance by Polychem and Eastwind
with Section 5(i) of the Loan and Security Agreement in connection with the
Share Exchange.
2. Amendment to Loan and Security Agreement. Lender and Eastwind hereby
agree to amend the Loan and Security Agreement to:
a) delete all references therein to "The Eastwind Group, Inc." and to
substitute "ConMat Technologies, Inc." in lieu thereof;
b) replace Exhibit L-1 thereto in its entirety with Exhibit B hereto;
and
c) replace Exhibit M-1 thereto in its entirety with Exhibit A hereto.
3. Release of Eastwind by Lender. Upon the effectiveness of this
Agreement, Eastwind shall be released from all of its obligations and duties
arising under the Stock Pledge Agreement and the Guarantee.
4. Effectiveness. This Agreement shall become effective upon the
satisfaction of each of the following conditions:
a) Upon receipt from Lender of all the existing certificates
representing or evidencing the Polychem Common Stock, and
the existing related undated stock power endorsed in
blank, ConMat shall have delivered to the Lender new
certificates representing or evidencing all of the
Polychem Common Stock, and a related undated stock power
endorsed in blank;
b) Lender shall have received an executed guarantee made by
ConMat in favor of the Lender (the "New Guarantee"), in
substantially the form attached hereto as Exhibit A;
c) Lender shall have received an executed stock pledge
agreement made by ConMat in favor of the Lender (the "New
Stock Pledge Agreement"), in substantially the form
attached hereto as Exhibit B;
d) ConMat shall have delivered a power of attorney in favor
of the Lender (the "New Power of Attorney"), in
substantially the form attached hereto as Exhibit C;
e) Lender shall have received a copy of the resolutions of
the
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Board of Directors of ConMat certified by its secretary
approving the execution, delivery and performance by
ConMat of this Agreement, the New Guarantee, the New Stock
Pledge Agreement and the New Power of Attorney and the
transactions contemplated hereby; and
f) Lender shall have received a copy of the resolutions of
the Board of Directors of Eastwind certified by its
secretary approving the execution, delivery and
performance by Eastwind of this Agreement and the
transactions contemplated hereby.
5. Representations and Warranties.
5.1 ConMat hereby represents and warrants to the Lender that:
(a) (i) it is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
the corporate power and authority and the legal right to own and operate its
property, to lease the property it operates and to conduct the business in which
it is currently engaged, (ii) it has the power and authority and the legal right
and capacity to execute and deliver, and to perform its obligations under this
Agreement, the New Guarantee, the New Stock Pledge Agreement and the New Power
of Attorney and has taken all necessary action to authorize its execution,
delivery and performance of this Agreement, the New Guarantee, the New Stock
Pledge Agreement and the New Power of Attorney;
(b) this Agreement, the New Guarantee, the New Stock Pledge Agreement
and the New Power of Attorney constitute legal, valid and binding obligations of
ConMat enforceable in accordance with their terms, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting the enforcement of creditors' rights
generally, general equitable principles and an implied covenant of good faith
and fair dealing;
(c) the execution, delivery and performance of this Agreement, the New
Guarantee, the New Stock Pledge Agreement and the New Power of Attorney will not
violate any provision of any Requirement of Law or Contractual Obligation of
ConMat and will not result in or require the creation or imposition of any Lien
on any of its properties or revenues pursuant to any Requirement of Law or any
of its Contractual Obligations;
(d) no consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or Governmental Authority and no consent of any other
Person (including, any shareholder or creditor of ConMat) is required in
connection with the execution, delivery, performance, validity or enforceability
of this Agreement, the New Guarantee, the New Stock Pledge Agreement and the New
Power of Attorney; and
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(e) no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of ConMat
threatened by or against it or against any of its properties or revenues (1)
with respect to this Agreement, the New Guarantee, the New Stock Pledge
Agreement and the New Power of Attorney, or any of the transactions contemplated
hereby, or (2) which could have a material adverse effect on the business,
property, or financial or other condition of this Agreement, the New Guarantee,
the New Stock Pledge Agreement and the New Power of Attorney.
5.2 Polychem hereby represents and warrants to the Lender that each
and every of its representations and warranties contained in the Loan and
Security Agreement is true and correct (except to the extent that any such
representation or warranty is expressly made as of an earlier date) and that no
Event of Default or Default has occurred or is continuing.
6. Miscellaneous Terms and Conditions.
6.1 Loan and Security Agreement in Full Force and Effect. Except as
amended or waived by this Agreement, all of the provisions of the Loan
and Security Agreement shall remain in full force and effect from and
after the date hereof.
6.2 References to Loan and Security Agreement. From and after the
effectiveness of this Agreement, (a) all references in the Loan and
Security Agreement to "this Agreement," "hereof," "herein," or similar
terms, (b) all references to the Loan and Security Agreement in the
Loan Documents, or any other documents or instruments executed or
delivered in connection with the Loan and Security Agreement, and (c)
all references to the Loan and Security Agreement shall mean and refer
to the Loan and Security Agreement as amended by this Waiver and
Amendment Agreement.
6.3 Further Assurances. At the request of either party, the other
party shall deliver any further instruments and take all reasonable
actions as may be necessary or appropriate to effectuate the
transactions contemplated by this Agreement.
6.4 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
IN WITNESS WHEREOF, the parties have executed this Waiver and Amendment
Agreement upon the date first written above.
GENERAL ELECTRIC CAPITAL CORPORATION
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
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THE EASTWIND GROUP, INC
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ .
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By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
CONMAT TECHNOLOGIES, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:________________
POLYCHEM CORPORATION
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
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