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BANK ONE, N.A | CONTINENTAL CONVEYOR & EQUIPMENT COMPANY | GOODMAN CONVEYOR COMPANY. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 10.14
FORBEARANCE AGREEMENT
This Forbearance Agreement ("Agreement") is entered into
effective as of July 13, 2004, by and among BANK ONE, N.A., ("Lender"),
CONTINENTAL CONVEYOR & EQUIPMENT COMPANY, a Delaware Corporation ("Continental")
and GOODMAN CONVEYOR COMPANY, a Delaware corporation ("Goodman") (Continental
and Goodman are collectively referred to the "Borrowers" and each individually
as a "Borrower").
R E C I T A L S:
A. Pursuant to the terms of that certain Assumption and Modification
Agreement by and between Borrower and Bank dated as of March 7, 1997
("Assumption"), the Borrowers assumed all of the Obligations of
CONTINENTAL CONVEYOR & EQUIPMENT CO. L.P., formerly a limited
partnership organized and existing under the laws of the State of
Delaware, and GOODMAN CONVEYOR CO. L.P., formerly a limited
partnership organized and existing under the laws of the State of
Delaware (collectively, the "Borrowers") under that certain Credit
Facility and Security Agreement by and among the Borrowers and Bank
(and/or its predecessor Bank One Cleveland, N.A.) dated as of
September 14, 1992; as amended by a certain First Amendment to Credit
Facility and Security Agreement by and among the Borrowers and Bank
executed on August 27, 1993; as further amended by a certain Second
Amendatory Agreement by and among the Borrowers and Bank dated as of
October 5, 1994; as further amended by a certain Consolidated
Amendment No. 1 to Credit Facility and Security Agreement by and among
the Borrowers and Bank dated as of July 28, 1995; as further amended
by a certain Consolidated Amendment No. 2 to Credit Facility and
Security Agreement by and among the Borrowers and Bank dated as of
December 13, 1996; as further amended by a certain Third Amendatory
Agreement to Credit Facility and Security Agreement by and among the
Borrower and Bank dated as of March 28, 1997; as further amended by a
certain Fourth Amendatory Agreement by and among the Borrower and Bank
dated as of December, 1998; as further amended by a certain Fifth
Amendatory Agreement by and among the Borrower and Bank dated as of
April 29, 1999; as further amended by a certain Sixth Amendatory
Agreement by and among the Borrower and Bank dated as of March 28,
2000, as modified by a letter amendment dated as of March 25, 2002
(collectively, the "Original Credit Agreement"); and as further
amended by a certain Amended and Restated Credit Facility and Security
Agreement by and among the Borrower and Bank dated as of July 25, 2002
(the "Restated Credit Agreement") as further amended by a certain
First Amendment to Amended and Restated Credit Facility and Security
Agreement dated as of June 30, 2003; and as further amended by a
certain Second Amendment to Amended and Restated Credit Facility and
Security Agreement dated as of August 12, 2003 (which, together with
the Original Credit Agreement and the Restated Credit Agreement are
sometimes collectively referred to herein as the "Credit Agreement").
Capitalized terms not otherwise defined herein shall have the meanings
given to such terms in the Credit Agreement.
B. The Borrowers' obligation to repay advances on the Revolving Loan (as
defined in the Credit Agreement) is evidenced by a certain Amended and
Restated Revolving Note (Revolving Loan), as amended by a certain
Second Amended and Restated Replacement Promissory Note, and as
further amended by the Third Amended and Restated Replacement
Promissory Note (the "Restated Revolving Note"). The Borrower's
obligations to repay the Term Loan A (as defined in the Credit
Agreement) is evidenced by a certain Amended and Restated Promissory
Note (Term Loan A) (the "Restated Term Note"). To secure the
Obligations, including advances under the Restated Revolving Note and
the Restated Term Note, the Borrowers granted to Lender a security
interest in substantially all of their assets.
C. The Borrowers acknowledge that they are currently in default of
certain of the terms of the Credit Agreement, and by reason thereof,
Lender has no obligation to make additional advances under any of the
Credit Documents.
D. Under the terms of the Credit Documents, Lender is currently entitled
to exercise any right, power or remedy permitted to Lender by law or
any provision of the Credit Documents to effectuate repayment of all
amounts owing to Lender under the Credit Documents, including, without
limitation, the repossession and/or foreclosure and sale of the
Collateral. The parties agree that, as of May 27, 2004, there is due
and owing from Borrowers to Lender $11,417,318 as the outstanding
principal amount of the Revolving Loan, and $1,258,854 as the
outstanding principal balance of the Term Loan A, together with
accrued but unpaid interest thereon and certain costs and expenses.
E. The Borrowers have requested that Lender forbear from exercising its
rights and remedies under the Credit Documents.
F. Lender is willing to forbear in the exercise of its remedies under the
Credit Documents upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the foregoing recitals (which are incorporated
herein by reference), and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Forbearance. During the Forbearance Period (as defined
below), Lender will not make demand for payment under the Restated
Revolving Note and/or Restated Term Note, or exercise any of its rights
or remedies under the Credit Documents with respect to the Designated
Defaults (as defined below). For purposes of this Agreement,
"Forbearance Period" means the period commencing on the date hereof and
ending on the earlier of: (a) July 30, 2004; (b) the occurrence of a
Default hereunder; (c) the termination of the forbearance period
pursuant to that certain Forbearance Agreement by and among Continental
Global Group, Inc. ("Continental Global"), N.E.S. Investment Co., and
CFSC Wayland Advisors, Inc., dated as of April 26, 2004 (the "Global
Forbearance Agreement"); and/or (d) either the Trustee under, or
holders of 25% or more of the Series A and Series B Notes issued by
Continental Global and administered by Norwest Bank Minnesota, Trustee
under, that certain Indenture, dated as of April 1, 1997 (the
"Indenture"), have declared the Series A and Series B Notes and/or any
Liquidated Damages (as defined in the Indenture) to be due and payable;
provided, however, that Lender's present willingness to so forbear and
to forgo the exercise of any of Lender's rights, remedies, powers
and/or privileges under the Credit Documents shall only be construed as
a limited, one-time forbearance. The Borrowers acknowledge and agree
that, notwithstanding the foregoing: (i) except as set forth herein,
Lender reserves the right to enforce each and every term of the Credit
Documents; (ii) Lender is under no duty or obligation of any kind or
any nature to grant the Borrowers any additional period of forbearance
beyond the Forbearance Period; (iii) Lender's actions in entering into
this Agreement shall not be construed as a waiver or relinquishment of,
or estoppel to assert, any of Lender's rights or remedies under any of
the Credit Documents, applicable law or in equity; and (iv) Lender's
actions in entering into this Agreement are without prejudice to
Lender's right to pursue any and all remedies under the Credit
Documents, pursuant to applicable law, or in equity available to it in
the sole discretion upon the termination (whether upon expiration
thereof, upon acceleration, or otherwise) of the Forbearance Period.
2. Effect and Construction of Agreement. Except as expressly
provided in this Agreement, the Credit Documents shall remain in full
force and effect in accordance with their respective terms and be
unaffected hereby. To the extent of any inconsistency, amendment or
superseding provisions, this Agreement shall govern and control. Except
as expressly provided in this Agreement, the Borrowers expressly
acknowledge that nothing in this Agreement shall be deemed to
constitute in any way a waiver, extinguishment, satisfaction, or
novation of the Obligations and/or Borrowers' existing indebtedness to
Lender. The Borrowers acknowledge that they have consulted with counsel
and with such other advisors as they have deemed necessary in
connection with the negotiation, execution and delivery of this







