FORBEARANCE AGREEMENT
Exhibit
99.1
This FORBEARANCE AGREEMENT, dated as of
August , 2006 (this
“Agreement”), is entered into by and among XXXX
CREDIT CORPORATION, a Delaware corporation (the
“Company”), and each of the noteholders a party
hereto (collectively, the “Forbearing
Noteholders” and individually each a
“Forbearing Noteholder”).
PRELIMINARY
STATEMENTS:
A. The Forbearing Noteholders are holders of some of the
DCC Notes (as defined below).
B. The Forbearing Noteholders have asserted that the DCC
Notes became immediately due and payable as a result of the
commencement by Xxxx Corporation, a Virginia corporation
(“Xxxx”), on March 3, 2006 of a voluntary
case (together with the related cases of certain subsidiaries of
Xxxx, the “Bankruptcy Case”) under
chapter 11 of title 11 of the United States Code in
the United States Bankruptcy Court for the Southern District of
New York (the “Bankruptcy Court”).
C. The Company has requested that the Forbearing
Noteholders forbear, and the Forbearing Noteholders have agreed
to forbear, from exercising any rights and remedies with respect
to any defaults that may now or hereafter exist with respect to
the DCC Notes and forbear from seeking repayment of amounts due
in respect of the DCC Notes.
D. The Forbearing Noteholders are willing to agree to such
forbearance on the terms and conditions set forth in this
Agreement.
AGREEMENT:
In consideration of the premises and the mutual covenants
contained in this Agreement, and other good and valuable
consideration the receipt and sufficiency of which are
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
1.1 Definitions. As used in this
Agreement, the following terms have the following meanings:
“Bankruptcy Case” has the meaning specified in
the Preliminary Statements.
“Bankruptcy Court” has the meaning specified in
the Preliminary Statements.
“Cash Equivalents” means any of the following,
to the extent having a maturity of not greater than
12 months from the date of issuance thereof:
(a) readily marketable direct obligations of the Government
of the United States or any agency or instrumentality thereof or
obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States,
(b) certificates of deposit of or time deposits with any
commercial bank that is a member of the Federal Reserve System
that issues (or the parent of which issues) commercial paper
rated as described in clause (e), is organized under the
laws of the United States or any state thereof and has combined
capital and surplus of at least $500,000,000,
(c) repurchase obligations for the underlying securities of
the types described in clause (a) above, entered into with
any bank meeting the qualifications specified in
clause (b), (d) commercial paper issued by any
corporation organized under the laws of any state of the United
States and rated at least
“Prime-1”
(or the then equivalent grade) by Xxxxx’x or
“A-1”
(or the then equivalent grade) by S&P, (e) investments
in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are
administered by financial institutions that have the highest
rating obtainable from either Xxxxx’x or S&P and which
are approved by the Bankruptcy Court or (f) in the case of
investments by foreign Subsidiaries, other short-term
investments in accordance with normal investment practices for
cash management of a type analogous to the foregoing.
“Collateral Agent” means
[ ],
in its capacity as collateral agent under the Security
Documents, and includes and successor or replacement collateral
agent.
“Collateral” means the Secured Obligations as
defined in the Security Agreement.
“Company” has the meaning specified in the
first paragraph of this Agreement.
“Xxxx” has the meaning specified in the
Preliminary Statements.
“Xxxx Intercompany Note” means the Promissory
Note dated as of August 16, 2004, as the same may be
amended from time to time, by Xxxx in favor of the Company.
“DCC Notes” means, collectively, the Medium
Term Notes and the Private Placement Notes.
“Effective Date” has the meaning set forth in
Section 7 hereof.
“Excess Cash” means, as of any date, the
aggregate amount of unrestricted cash held by the Company in the
United States in excess of $7,500,000.
“Existing DCC Note Documents” means,
collectively, each promissory note executed and delivered in
connection with the DCC Notes and each other document,
instrument or agreement executed by the Company in favor of the
Noteholders in connection with the foregoing, provided
that (a) the Forbearance Documents shall not be deemed
to be Existing DCC Note Documents and (b) the
Operating Agreement shall be deemed to be an Existing DCC
Note Document.
“Forbearance Documents” means, collectively,
this Agreement and the Security Documents, as any of the
foregoing may from time to time be amended, restated or
otherwise modified.
“Forbearance Period” has the meaning set forth
in Section 2.1 hereof.
“Forbearing Noteholders” has the meaning set
forth in the first paragraph hereof.
“Investment” means (i) any direct or
indirect purchase or other acquisition by a Person of any equity
interest of any other Person; (ii) any loan, advance (other
than deposits with financial institutions available for
withdrawal on demand) or extension of credit to, guarantee or
assumption of debt or purchase or other acquisition of any other
indebtedness of, any Person by any other Person; or
(iii) the purchase, acquisition or investment of or in any
stocks, bonds, mutual funds, notes, debentures or other
securities, or any deposit account, certificate of deposit or
other investment of any kind.
“Lien” means any mortgage, security interest,
lien (statutory or other), charge, encumbrance on, pledge or
deposit of, or conditional sale, leasing, sale with a right of
redemption or other title retention agreement and any
capitalized lease with respect to any property (real or
personal) or asset.
“Medium Term Notes” means, collectively, the
$500,000,000 8.375% Senior Notes due August 15, 2007.
For the avoidance of doubt, the foregoing amount is the original
principal amount of such notes and not necessarily the current
outstanding principal balance.
“Note Default” means, with respect to the
DCC Notes, any default or event of default, or any event or
condition that with the passage time or the giving of notice or
both would constitute a default or event of default, now in
existence or hereafter occurring under or in respect of the DCC
Notes and the other Existing DCC Note Documents, including,
but not limited, any default or event of default that may have
occurred as a result of the Bankruptcy Cases.
“Noteholder” means any holder of a DCC Note and
shall include, without limitation, the Forbearing Noteholders.
“Operating Agreement” means the Operating
Agreement between Xxxx and the Company dated May 23, 1995,
as the same may be amended from time to time.
“Person” means any individual, sole
proprietorship, partnership, joint venture, unincorporated
organization, corporation, limited liability company,
institution, trust, estate, government or other agency or
political subdivision thereof or any other entity.
“Portfolio Asset” means each of the investments
or assets of the Company or its Subsidiaries identified on
Schedule 1 attached hereto.
“Private Placement Notes” means, collectively,
the (i) $35,000,000 6.93% Senior Note due April 8,
2006, (ii) $37,000,000 7.18% Senior Note due
April 8, 2006, (iii) $30,000,000 7.91% Senior
Notes due August 16, 2006, (iv) $30,000,000
6.88% Senior Note due August 28, 2006,
(v) $13,000,000 7.03% Senior Notes due April 8,
2006 and (vi) $37,000,000 6.59% Senior Note due
December 1, 2007. For the avoidance of doubt, the foregoing
amounts are the original principal amounts of such notes and not
necessarily the current outstanding principal balance.
“Quarterly Payment Date” means March 31,
June 30, September 30 and December 31 of each
year, commencing on September 30, 2006.
“Representative” means Xxxxxxx X.
Xxxxxx, Esq., as counsel for the Ad Hoc Committee of DCC
Noteholders, or any such other Person as shall be designated in
writing to the Company by the then current Representative.
“Requisite Forbearing Noteholders” means, at
any time, Forbearing Noteholders holding not less than 51% of
the aggregate outstanding principal amount of the DCC Notes held
by the Forbearing Noteholders.
“Restricted Payment” means a payment made,
liability incurred or other consideration given for the
purchase, acquisition, repurchase, redemption or retirement of
any equity interest of the Company or as a dividend, return of
capital or other distribution in respect of any of the
Company’s equity interests.
“Security Agreement” means a Security Agreement
substantially in the form of Exhibit B attached hereto.
“Security Documents” means, collectively, the
Security Agreement, and each document, instrument or agreement
executed in connection with the Security Agreement.
“Subsidiary” of any Person means (i) any
corporation more than 50% of whose stock of any class or classes
having by the terms thereof ordinary Voting Power to elect a
majority of the directors of such corporation (irrespective of
whether or not at the time stock of any class or classes of such
corporation shall have or might have Voting Power by reason of
the happening of any contingency) is at the time owned by such
Person directly or indirectly through Subsidiaries, and
(ii) any partnership, limited liability company,
association, joint venture or other entity in which such Person
directly or indirectly through Subsidiaries, owns more than 50%
of the equity interests of such Person at the time or in which
such Person, one or more other Subsidiaries of such Person or
such Person and one or more Subsidiaries of such Person,
directly or indirectly, has the power to direct the policies,
management and affairs thereof. Unless otherwise expressly
provided, all references herein to “Subsidiary” shall
mean a Subsidiary of the Company.
“Tax Sharing Agreement” means the Tax Sharing
Agreement between Xxxx and the Company dated as of May 15,
1982, as amended.
“Termination Date” shall have the meaning set
forth in Section 2.1 hereof.
“Termination Event” has the meaning set forth
in Section 6.1 hereof.
“Voting Power” means, with respect to any
Person, the exclusive ability to control, through the ownership
of shares of capital stock, partnership interests, membership
interests or otherwise, the election of members of the board of
directors or other similar governing body of such Person, and
the holding of a designated percentage of Voting Power of a
Person means the ownership of shares of capital stock,
partnership interests, membership interests or other interests
of such Person sufficient to control exclusively the election of
that percentage of the members of the board of directors or
similar governing body of such Person.
SECTION 2. FORBEARANCE; FORBEARANCE PERIOD;
PAYMENTS.
2.1 Forbearance; Forbearance
Period. For the period (the “Forbearance
Period”) commencing on the Effective Date and ending on
the date (the “Termination Date”) that is the
earliest to occur of (a) the date the Forbearance Period is
terminated in accordance with Section 6.1 hereof,
(b) the later of (i) the allowance of any and all
claims of the Company against Xxxx in the Bankruptcy Case and
(ii) the effective date of a chapter 11 plan in the
Bankruptcy Case, and (c) August [ ], 2008,
except as specifically set forth in this Agreement, each
Forbearing Noteholder will not exercise any of its rights or
remedies that may exist with respect to any Note Default
under any of the Existing DCC Note Documents or applicable
law.
2.2 Interest Rates. Until the
Termination Date, notwithstanding the terms of the Existing DCC
Note Documents or the existence of any Note Default,
on and after the Effective Date at all times thereafter during
the Forbearance Period, interest shall accrue under each of the
DCC Notes held by each Forbearing Noteholder at the non-default
contractual rate of interest applicable to each such DCC Note
and shall be payable as set forth in Section 2.3 hereof.
2.3 Payments of Principal and
Interest. Notwithstanding the terms of the
Existing DCC Note Documents or the existence of any
Note Default, during the Forbearance Period, on each
Quarterly Payment Date the Company shall make a payment of the
DCC Notes in an amount equal to the amount of Excess Cash
available on the business
day immediately preceding such Quarterly Payment Date. Each such
payment shall be applied, first, to reduce any accrued
and unpaid interest on the DCC Notes held by the Forbearing
Noteholders on a pro rata basis among all outstanding DCC
Notes held by the Forbearing Noteholders, and second, to
reduce the outstanding principal amount of the DCC Notes held by
the Forbearing Noteholders on a pro rata basis. After the
Termination Date, all payments made by the Company, whether from
the proceeds of any Collateral or otherwise, shall be applied in
accordance with Section 5.5 of the Security Agreement.
SECTION 3. SECURITY DOCUMENTS.
As a condition precedent to the effectiveness of this Agreement,
the Company shall have executed and delivered to the Collateral
Agent the Security Agreement and the other Security Documents
required to be executed and delivered pursuant to the terms of
the Security Agreement. Each of the Forbearing Noteholders
acknowledges the terms of, consents to and agrees to be bound in
all respects by the Security Agreement and the other Security
Documents, including, but not limited to, the indemnification
and other provisions applicable to the Collateral Agent.
SECTION 4. FORBEARANCE COVENANTS.
The Company agrees that during the Forbearance Period the
Company shall perform and observe all of the following
provisions:
4.1 Collateral Agent Fees. The
Company shall pay to the Collateral Agent all of the fees and
expenses of the Collateral Agent as and when required to be paid
pursuant to the terms of the Security Documents and any separate
fee letter that may be entered into by the Company with the
Collateral Agent from time to time.
4.2 Asset Sales.
(A) Without the prior consent of the Requisite Forbearing
Noteholders (which consent will not be unreasonably withheld),
the Company will not, and will not permit any Subsidiary to,
make or otherwise effect the sale, lease, transfer or other
disposition to any Person of any Portfolio Asset, except
that each of the following shall be permitted: (i) any
sale, lease, transfer or other disposition of any Portfolio
Asset by the Company to any Subsidiary, by any Subsidiary to the
Company or by any Subsidiary to any other Subsidiary, and
(ii) any sale of any Portfolio Asset in accordance with
subpart (B) of this Section.
(B) The Company will use commercially reasonable efforts to
sell the Portfolio Assets and, to the extent the sales price for
any Portfolio Asset is not less than the amount for such
Portfolio Asset as agreed to between the Company and the Ad Hoc
Committee of DCC Noteholders in that certain letter from the
Company to the Representative and dated as of the date hereof,
the Forbearing Noteholders shall be deemed to have consented to
such sale and any Lien on such Portfolio Asset created pursuant
to the Security Documents shall be automatically released,
provided that the Forbearing Noteholders shall continue
to have a Lien on the proceeds of such sale in accordance with
the Security Agreement.
4.3 Restricted Payments;
Investments. Without the prior consent of the
Requisite Forbearing Noteholders (which consent will not be
unreasonably withheld), the Company will not, and will not
permit any Subsidiary to, make any Investment or Restricted
Payment of any kind, provided that the following shall be
permitted: (i) Investments in cash and Cash Equivalents,
(ii) advances deemed to exist in connection with
intercompany obligations owed by Xxxx to the Company in
connection with lease obligations and other similar obligations
between the Company and Xxxx; (iii) any endorsement of a
check or other medium of payment for deposit or collection, or
any similar transaction in the normal course of business;
(iv) the acquisition and holding of receivables and similar
items owing in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;
(v) any securities received in connection with the
bankruptcy or reorganization of any lessee or obligor under any
portfolio investment and in settlement of delinquent obligations
of, and other disputes with, lessees or obligors under any
portfolio investment arising in the ordinary course of business;
(vi) Investments existing as of the Effective Date; and
(vi) Investments made by (A) the Company in or to any
Subsidiary, or (B) any Subsidiary in or to the Company or
any other Subsidiary.
4.4 Restricted Cash. The Company
will use commercially reasonably efforts to transfer to the
United States any cash that is held outside the United States or
that is generated from the sale of Portfolio Assets outside of
the United States.
SECTION 5. INTERCOMPANY NOTE.
5.1 Intercompany Note. The Company
and each of the Forbearing Noteholders hereby stipulate that as
of the date of the filing of Dana’s Bankruptcy Case, the
aggregate amount outstanding under the Xxxx Intercompany Note
was $291,106,458; provided, however, that the Company and
each Forbearing Noteholder acknowledges and agrees that such
amount may be subject to set-off and any counterclaims, defenses
or other rights that may exist by Xxxx with respect to the Xxxx
Intercompany Note.
5.2 Notice Regarding Set-Off. The
Company shall provide the Representative written notice
immediately upon the receipt by the Company of any written
notice from Xxxx to the Company that Xxxx intends to or has
asserted or attempted to effectuate any set-off, recoupment or
similar right against any claims of the Company against Xxxx on
account of its rights arising under the Tax Sharing Agreement or
relating to the DCC Intercompany Note.
SECTION 6. TERMINATION EVENTS.
6.1 Termination Events. For
purposes of this Agreement, “Termination Event”
means:
(A) the failure of the Company to make any payment of
principal or interest in accordance with Section 2.3 hereof
within three business days after the due date thereof;
(B) any representation, warranty or statement made by the
Company in any Forbearance Document shall prove to be untrue in
any material respect on the date as of which made or deemed made;
(C) the Company shall default in the due performance or
observance by it of any term, covenant or agreement contained in
this Agreement or any other Forbearance Document (other than
those referred to in Section 6.1(A) or (B) above) and
such default is not remedied within 30 days after the
earlier of (i) an officer of the Company obtaining
knowledge of such default or (ii) the Company receiving
written notice of such default from the Requisite Forbearing
Noteholders;
(D) Xxxx shall set-off any amount against the Xxxx
Intercompany Note;
(E) a final judgment or order for the payment of money
damages shall be rendered against the Company by a court of
competent jurisdiction, provided that the aggregate of
all such judgments shall exceed $7,500,000 in excess of
applicable insurance coverage; or
(F) the commencement by the Company of a voluntary case
under the Bankruptcy Code or the seeking of relief by the
Company under any bankruptcy or insolvency or analogous law in
any jurisdiction outside of the United States.
6.2 Termination of Forbearance
Period. Upon the occurrence of any Termination
Event the Requisite Forbearing Noteholders shall have the right
upon providing written notice to the Company to terminate the
Forbearance Period; provided, however, that
notwithstanding the foregoing, upon the occurrence of a
Termination Event described in Section 6.1(F) above, the
Forbearance Period will automatically terminate without notice
of any kind.
6.3 Effect at End of Forbearance
Period. On the Termination Date, whether pursuant
to Section 6.2 or otherwise, the Forbearance Period shall
automatically terminate and the Forbearing Noteholders (or any
thereof) shall be fully entitled to exercise any rights and
remedies they may have as a result of any Note Default
under their respective Existing DCC Note Documents, under
the Forbearance Documents or applicable law.
6.4 No Waiver. Nothing in this
Agreement shall in any way be deemed to be a waiver of any
Note Default that may now exist or that may exist at the
end of the Forbearance Period.
SECTION 7. CONDITIONS PRECEDENT.
The effectiveness of this Agreement and the obligation of the
Forbearing Noteholders to institute the provisions of this
Agreement and the commencement of the Forbearance Period shall
be effective on the date (the “Effective Date”)
on which the following conditions precedent have been satisfied:
(a) this Agreement shall have been executed by the Company
and the Company shall have received signature counterparts to
this Agreement in the form of Exhibit A hereto executed by
the holders of (i) all of the Private Placement Notes and
(ii) not less than 90% of the aggregate outstanding
principal amount of the
Medium Term Notes or such lesser percentage as may be agreed to
by the Company on or before August , 2006 (or
such later date as is agreed to be the Company);
(b) the Company shall have duly executed and delivered to
the Collateral Agent the Security Agreement, and shall have
executed and delivered each other document or agreement that is
required to be executed and delivered in connection therewith;
(c) the Company shall have paid all accrued and unpaid
interest owing as of the Effective Date with respect to the DCC
Notes, calculated at the non-default interest rate applicable to
each such DCC Note; and
(d) Xxxx shall have made an
8-K filing
(or other public filing), which shall be in form and substance
reasonably acceptable to the Representative, in which it shall
have publicly disclosed the following: (1) the terms of the
Tax Sharing Agreement and (2) the facts surrounding and
risks associated with the various IRS audits.
SECTION 8. MISCELLANEOUS.
8.1 Captions. The Preliminary
Statements to this Agreement (except for any definitions set
forth therein) and the section captions used in this Agreement
are for convenience only and do not affect the construction of
this Agreement.
8.2 Existing Documents
Unaffected. Except as herein otherwise
specifically provided, all provisions of the Existing DCC
Note Documents shall remain in full force and effect and be
unaffected hereby.
8.3 Amendments or Modifications. No
amendment, modification, termination, or waiver of any provision
of this Agreement, nor consent to any variance hereto, shall be
effective unless the same shall be in writing and signed by the
Requisite Forbearing Noteholders and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that:
(i) any extension of the Forbearance Period shall require
the written consent of all of the Forbearing Noteholders,
(ii) any reduction in the principal amount of any DCC Note
may not be made without the consent of the applicable holder of
such DCC Note, (iii) any reduction in the rate of interest
on any DCC Note may not be made without the consent of the
applicable holder of such DCC Note, (iv) any release of the
Company from any of its obligations under the Forbearance
Agreement or any other Forbearance Documents, or any consent to
the assignment of any of its rights thereunder, shall require
the written consent of all of the Forbearing Noteholders; and
(v) any reduction in the percentage set forth in the
definition of “Requisite Forbearing Noteholders” or
any modification or amendment to this Section 8.3 shall
require the written consent of all of the Forbearing Noteholders.
8.4 No Other Promises or
Inducements. There are no promises or inducements
that have been made to any party hereto to cause such party to
enter into this Agreement other than those that are set forth in
this Agreement.
8.5 No Waiver of Rights. No waiver
shall be deemed to be made by any party hereunder of any of its
rights hereunder unless the same shall be in writing signed on
behalf of such party. Each waiver, if any, shall be a waiver
only with respect to the specific instance involved and shall in
no way impair the rights of any party.
8.6 Successors and Assigns. This
Agreement is binding upon the Company, the Forbearing
Noteholders and their respective successors and assigns, and
inures to the sole benefit of the Company, the Forbearing
Noteholders and their successors and assigns; provided
that notwithstanding anything in the Existing
Note Documents to the contrary, without the prior written
consent of the Company (which consent may be withheld by the
Company in its sole discretion), no Forbearing Noteholder may
assign all or any portion of its interest under any DCC Note
without causing the purchaser or assignee of such interest to
become a party to this Agreement pursuant to an instrument of
assumption and joinder in form and substance reasonably
acceptable to the Company and any purported transfer or
assignment shall be deemed to be void and of no force and
effect. The Company does not have any right to assign its rights
or delegate its duties under this Agreement.
8.7 Entire Agreement. This
Agreement sets forth the entire agreement and understanding
among the parties as to the subject matter hereof and merges and
supersedes all prior discussions, agreements, and undertakings
of every kind and nature among them with respect to the subject
matter hereof.
8.8 Counterparts. This Agreement
may be executed in any number of counterparts, and by the
parties hereto on the same or separate counterparts and by
facsimile signature, and each such counterpart, when executed
and delivered, shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
Agreement.
8.9 Notices. All notices, requests,
demands and other communications provided for hereunder shall be
in writing and mailed or delivered to any party, addressed, in
the case of any Forbearing Noteholder to its address set forth
on its counterpart signature page with a copy to Xxxxxxx X.
Xxxxxx, Esq., Xxxxxxxx & Xxxxx,
000 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
and, in the case of the Company, addressed as follows: Xxxx
Credit Corporation, 0000 Xxxxx Xxxxx, Xxxxxxx, Xxxx 00000,
Attention: Xxxxxx X. Xxxxx, President, with a copy to Xxxxxxx X.
Xxxxxx, Esq., Xxxxx Day, 000 X. 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000. All notices, statements, requests,
demands and other communications provided for hereunder shall be
deemed to be given or made when delivered or 48 hours after
being deposited in the mails with postage prepaid by registered
or certified mail, addressed as aforesaid, or sent by facsimile
with telephonic confirmation of receipt, except that notices
pursuant to any of the provisions hereof shall not be effective
until received.
8.10 Severability of Provisions;
Attachments. Wherever possible each provision of
this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law. Any provision of this
Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the
validity or enforceability of such provision in any other
jurisdiction. Each schedule or exhibit attached to this
Agreement shall be incorporated herein and shall be deemed to be
a part hereof.
8.11 Payment of Professional
Fees. The Company agrees to pay the fees and
reasonable expenses of incurred by Xxxxxxxx & Xxxxx
LLP, as counsel for the Forbearing Noteholders, in connection
with the negotiation of this Agreement and to pay the fees of
Xxxxxx Del Genio Xxxxx & Co., LLC (“CDG”) in
the aggregate amount agreed to between the Company and CDG.
8.12 Governing Law; Submission to Jurisdiction;
Venue; Waiver of Jury Trial.
(A) THIS AGREEMENT AND THE OTHER FORBEARANCE DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY THE LAW OF THE STATE OF NEW YORK. Any legal action or
proceeding with respect to this Agreement or any other
Forbearance Document may be brought in the courts of the State
of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof,
and, by execution and delivery of this Agreement, the Company
hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the
aforesaid courts.
(B) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OF THE OTHER FORBEARANCE DOCUMENTS (INCLUDING,
WITHOUT LIMITATION, ANY AMENDMENTS, WAIVERS OR OTHER
MODIFICATIONS RELATING TO ANY OF THE FOREGOING), OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO
HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date referenced in the first paragraph of
this Agreement.
XXXX CREDIT CORPORATION
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