FIRST AGREED
EXTENSION TO
SECOND AMENDMENT TO
FORBEARANCE AGREEMENT
This First Agreed
Extension (hereinafter “Extension”) extends the
deadlines found in the Second Amendment to the Forbearance
Agreement (the “Second Amended Agreement”) by and among
NEXT, INC. , a Delaware corporation (the
“Borrower”), and DANNY F. COOKE and ROBERT
BUDD (collectively, the “Guarantors”) on the one
hand, and NATIONAL CITY BANK , a banking association
organized under the laws of the United States (the
“Bank”), on the other hand.
R E C I T A L
S:
Each party to this
Extension agrees that the following facts presently
exist:
1.
On or about January 30,
2009, the Parties executed a Forbearance Agreement. On April 30,
2009, the Parties executed the First Amendment to the Forbearance
Agreement. On June 30, 2009, the Parties executed the Second
Amendment to the Forbearance Agreement. The Forbearance Agreement,
the First Amendment to the Forbearance Agreement, and the Second
Amendment to the Forbearance Agreement shall be collectively
referred to as the Forbearance Agreement as Amended. The Borrower
and Guarantors have requested that the Bank extend the deadlines
found therein, and the Bank has agreed to such extension subject to
the following terms, conditions and requirements.
NOW, THEREFORE, in
consideration of the premises, the Bank, Borrower and each of the
Guarantors, agree as follows:
1.
Acknowledgment
Regarding Indebtedness . The Borrower and Guarantors
acknowledge that the Indebtedness is due and owing without set-off,
defense, or counterclaim and that Note I and Loan Documents, and
the Forbearance Agreement as Amended, are legal, valid and binding
obligations enforceable in accordance with their respective
terms.
2.
Amendments to
Agreement . Subject to the modifications
contained in the following paragraphs, the parties acknowledge and
restate all of the covenants, obligations and duties provided for
by the Forbearance Agreement as Amended:
(a)
Paragraph 3 shall be
modified to provide that the Termination Date shall be extended by
thirty days to October 30, 2009.
(b)
Paragraph 4(b) shall be
modified accordingly to provide that the interest rate for Note I
shall be modified as follows:
(i)
As of September 1, 2009
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