EXHIBIT 10.48
EXTENSION AGREEMENT FOR
AMENDMENT AND FORBEARANCE AGREEMENT DATED JUNE 20, 2001
Extension Agreement dated as of September 1, 2001 ("Extension
Agreement") for Amendment and Forbearance Agreement dated June 20, 2001 (the
"Forbearance Agreement") among Standard Federal Bank ("Standard Federal" or
"Lender"), XxXxxxx Industries, Inc. ("Industries"), XxXxxxx E-Z Pack, Inc. ("E-Z
Pack"), XxXxxxx Galion, Inc. ("Galion"), Shelby Steel Processing Company
("Shelby"), XxXxxxx Tube Company d/b/a Quality Tube ("Tube"), XxXxxxx
International FSC ("International"), XxXxxxx Southland Co. ("Southland"), and
XxXxxxx Group Leasing, Inc. ("Leasing"). Industries, E-Z Pack, Galion, Shelby,
Tube, International, Southland and Leasing are identified collectively as the
"Borrowers" and individually as a "Borrower"; Industries, in its capacity as
guarantor, is identified as the "Guarantor"; and (3) the Borrowers and the
Guarantor are identified collectively as the "Obligated Parties" and
individually as an "Obligated Party".
RECITALS
A. Borrowers have requested an extension to October 31, 2001 of the
Forbearance Period to permit Borrowers additional time to stabilize their
financial situation and refinance or otherwise satisfy the Obligations in full.
B. Capitalized terms used but not defined in this Agreement have the
same meanings given to those terms in the Forbearance Agreement and the Loan
Documents.
C. Each Obligated Party reaffirms, ratifies, confirms and approves its
obligations and duties under the Forbearance Agreement and the Loan Documents
(including the Guarantor Loan Documents) as modified by this Extension
Agreement. Future administration of the Obligations and the financing
arrangements among Standard Federal and the Obligated Parties shall continue to
be governed by the covenants, terms and conditions of the Forbearance Agreement
and the Loan Documents, which are ratified and confirmed and are incorporated by
this reference, except to the extent the Forbearance Agreement or the Loan
Documents are superseded, amended, modified or supplemented by this Extension
Agreement or are inconsistent with this Extension Agreement, then this Extension
Agreement will govern.
D. Other than the Specified Defaults each Obligated Party represents
and warrants, after due inquiry and investigation, that it is not aware of any
other Events of Default or defaults, or of any event that, with the passage of
time, notice, or both, would become an Event of Default or a default under the
Forbearance Agreement, Loan Documents or this Extension Agreement.
E. Each Obligated Party acknowledges and agrees that (i) Standard
Federal has fully performed all of its obligations under the Forbearance
Agreement and the Loan Documents; (ii) Standard Federal has no obligation to
continue to lend to Borrowers; (iii) Standard Federal has no obligation to
forbear from enforcing its rights and remedies other than as set forth in this
Agreement; (iv) any loans made after the date of this Extension Agreement will
continue to be made in Standard Federal's sole discretion; (v) Standard Federal
has made no representations of any nature or kind that funding in any amount
will continue; and (vi) Standard Federal has made
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no representations of any nature or kind that the Forbearance Period will again
be extended beyond its extended expiration.
F. Each Obligated Party further acknowledges and agrees that the
actions taken by Standard Federal to date in furtherance of the Forbearance
Agreement and the Loan Documents are reasonable and appropriate under the
circumstances and are within Standard Federal's rights under the Loan Documents
and applicable law.
G. Each Obligated Party represents and warrants to Standard Federal
that it received direct and substantial economic benefit from all of the
Obligations and that it will continue to receive direct and substantial economic
benefit from the Obligations, and from any other loans made or that may be made
in the future.
H. Subject to the terms and conditions of this Agreement, and in
reliance on the Obligated Parties' agreements, acknowledgments, representations,
and warranties in the Forbearance Agreement, Standard Federal has agreed to
extend the Forbearance Period as set forth below.
AGREEMENT
Based on the foregoing Recitals (which are incorporated herein as
agreements, representations, warranties, and covenants of the Obligated
Parties), Standard Federal and each Obligated Party agree as follows:
1. Forbearance. Subject to the condition that Standard Federal
receives, on or before September ___, 2001, a fully executed copy of this
Agreement, acknowledged by each of the Obligated Parties as provided below,
together with fully executed copies of all Exhibits hereto that require
signature, and there being no default under the Forbearance Agreement, Standard
Federal agrees that the Forbearance Period is extended through October 31, 2001.
2. No Further Forbearance Implied. Each Obligated Party acknowledges
that Standard Federal has no obligation to continue making loans; again extend
the term of the Forbearance Period; or forbear from enforcing its rights and
remedies after the Forbearance Period, and nothing contained herein or otherwise
is intended to be or is a promise or agreement to continue making loans; or
extend the term of the Forbearance Period beyond the extended expiration
thereof. Furthermore, no future agreement by Standard Federal to continue making
loans; or to extend the term of the Forbearance Period beyond the expiration
thereof, or any other agreement, is valid or enforceable unless it is contained
in a written agreement signed by Standard Federal.
3. RELEASE. AS OF THE DATE OF EXECUTION OF THIS EXTENSION AGREEMENT BY
THE OBLIGATED PARTIES, EACH OBLIGATED PARTY REPRESENTS AND WARRANTS THAT THEY
ARE AWARE OF, AND POSSESS, NO CLAIMS OR CAUSES OF ACTION AGAINST STANDARD
FEDERAL, NATIONAL BANK OF CANADA ("NBC"), FIFTH THIRD BANK, SUCCESSOR TO OLD
KENT BANK BY REASON OF MERGER, ("FIFTH THIRD"), OR NATIONAL CITY BANK OF
MICHIGAN/ILLINOIS ("NCB") (NBC, FIFTH THIRD AND NCB TOGETHER, THE
"PARTICIPANTS") ALL OF WHICH ARE PARTICIPATING BANKS IN THE LOANS TO THE
OBLIGATED PARTIES. NOTWITHSTANDING THIS REPRESENTATION AND AS FURTHER
CONSIDERATION FOR THE AGREEMENTS AND UNDERSTANDINGS
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HEREIN, EACH OBLIGATED PARTY INDIVIDUALLY, JOINTLY, SEVERALLY, AND JOINTLY AND
SEVERALLY, IN EVERY CAPACITY, INCLUDING BUT NOT LIMITED TO, AS SHAREHOLDERS,
OFFICERS, PARTNERS, DIRECTORS, INVESTORS, OR CREDITORS OF ANY ONE OR MORE OF THE
OBLIGATED PARTIES, EACH OF ITS EMPLOYEES, AGENTS, EXECUTORS, SUCCESSORS AND
ASSIGNS, HEREBY RELEASES STANDARD FEDERAL, NBC, FIFTH THIRD AND NCB AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, AFFILIATES,
SUBSIDIARIES, SUCCESSORS AND ASSIGNS FROM ANY LIABILITY, CLAIM, RIGHT OR CAUSE
OF ACTION THAT NOW EXISTS, OR HEREAFTER ARISES, WHETHER KNOWN OR UNKNOWN,
ARISING FROM OR IN ANY WAY RELATED TO FACTS IN EXISTENCE AS OF THE DATE OF
EXECUTION OF THIS EXTENSION AGREEMENT BY THE OBLIGATED PARTIES. BY WAY OF
EXAMPLE AND NOT LIMITATION, THE FORGOING INCLUDES ANY CLAIMS IN ANY WAY RELATED
TO ACTIONS TAKEN OR OMITTED TO BE TAKEN BY STANDARD FEDERAL, NBC, FIFTH THIRD,
NCB, OR ANY OR ALL OF THEM, UNDER THE LOAN DOCUMENTS, THE GUARANTOR LOAN
DOCUMENTS, THE BUSINESS RELATIONSHIP WITH STANDARD FEDERAL, NBC, FIFTH THIRD,
NCB OR ANY OR ALL OF THEM AND ALL OTHER OBLIGATIONS OF ANY NATURE OR KIND OF ANY
ONE OR MORE OF THE PARTIES, ANY ORAL AGREEMENTS OR UNDERSTANDINGS (ACTUAL OR
ALLEGED), ANY BANKING RELATIONSHIPS THAT ANY ONE OR MORE OF THE PARTIES HAS OR
MAY HAVE HAD WITH STANDARD FEDERAL, NBC, FIFTH THIRD, NCB OR ANY OR ALL OF THEM
AT ANY TIME AND FOR ANY REASON INCLUDING, BUT NOT LIMITED TO, DEMAND DEPOSIT
ACCOUNTS, OR OTHERWISE.
4. Waiver of jury trial and bond; submission to jurisdiction:
and acknowledgment.
(A) 1. Any judicial proceeding against any Obligated Party
brought by Lender with respect to any term or condition of this
Extension Agreement, the Forbearance Agreement or the Loan Documents,
or any other present or future agreement between any Obligated Party
and Lender and/or any other matter of any kind whatsoever may be
brought by Lender in a court of competent jurisdiction in the State of
Michigan, United States of America, and the parties each hereby
irrevocably consents and submits itself to jurisdiction in any such
court; and, by execution and delivery of this Agreement, each of the
Obligated Parties and Lender accept for themselves and in connection
with their respective properties, generally and unconditionally, the
nonexclusive jurisdiction of the aforesaid courts, and irrevocably
agree to be bound by any final judgment rendered thereby in connection
with this agreement, or any other present and future agreement between
any of the Obligated Parties and Lender and/or any other matter of any
kind whatsoever.
2. Each of the Obligated Parties waives personal service of
any and all process upon it, and consents that all such service of
process may be made by first-class mail or messenger directed to it at
its address set forth in the Forbearance Agreement. Each of the parties
waives any bond or surety or security upon such bond or surety that
might, but for this waiver, be required of Lender.
3. Nothing contained in this section affects or limits the
right of Lender to serve legal process in any other manner permitted by
law or affects Lender's right to bring any action or proceeding against
any Obligated Party or their property in the courts of any other
jurisdiction selected by lender in its sole and absolute discretion.
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4. Any judicial proceeding by any Obligated Party against Lender
and/or any person or entity related to or affiliated with Lender
involving, directly or indirectly, any matter or claim in any way
arising out of, related to or connected with this agreement or any
present or future agreement between any Obligated Party and Lender
and/or any other matter of any kind whatsoever, may be brought only in
a court located in the state of Michigan, county of Oakland (which
court shall have sole and exclusive jurisdiction to hear such matters).
5. Each of the Obligated Parties waives any objection to
jurisdiction and venue of any action instituted hereunder or in
connection herewith and may not assert any defense based in any way on
lack of jurisdiction or venue or based upon forum non conveniens.
(B) each Obligated Party acknowledges that (1) it has fully
read all of this Extension Agreement and has been given the opportunity
to consult with counsel and other advisors of its choice, and after
consulting with such counsel or advisors (or having had the opportunity
to do so), knowingly, voluntarily and without duress, coercion,
unlawful restraint, intimidation or compulsion, enter into this
Extension Agreement, based upon such advice and counsel (if any) and in
the exercise of its business judgment, (2) this Extension Agreement has
been entered into in exchange for good and valuable consideration,
receipt of which the Obligated Party hereto acknowledges, (3) it has
carefully and completely read all of the terms and provisions of this
agreement and is not relying on the opinions or advice of lender or its
agents or representatives in entering into this Extension Agreement.
(C) the Obligated Parties and Lender acknowledge that the
right to a trial by jury is a constitutional right, but that the right
may be waived. Each of the Obligated Parties and Lender each knowingly,
voluntarily, irrevocably, and after the opportunity to consult with
their respective counsel, without coercion, waive any and all rights to
trial by jury of all disputes between them including, without
limitation, any claims and/or defenses asserted in any judicial
proceeding described herein. Neither Lender nor any of the Obligated
Parties will be deemed to have given up this waiver of jury trial
unless the Obligated Party claiming that this waiver has been
relinquished has a written instrument signed by the other Obligated
Parties and Lender stating that this waiver has been given up.
(D) the Obligated Parties or Lender may file an original
counterpart or a copy of this Extension Agreement with any court as
written evidence of the waivers and consents contained herein.
STANDARD FEDERAL BANK
By:_______________________________
Its:_______________________________
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This Extension Agreement is executed by each of the Obligated Parties on
September ___, 2001.
XxXXXXX INDUSTRIES, INC. XxXXXXX E-Z PACK, INC.
By:________________________________ By:_________________________________
Its:_______________________________ Its:________________________________
XxXXXXX GALION, INC. SHELBY STEEL PROCESSING
COMPANY
By:________________________________ By:_________________________________
Its:_______________________________ Its:________________________________
XxXXXXX TUBE COMPANY XxXXXXX INTERNATIONAL FSC
d/b/a Quality Tube
By:________________________________ By:_________________________________
Its:_______________________________ Its:________________________________
XxXXXXX SOUTHLAND CO. XxXXXXX GROUP LEASING, INC.
By:________________________________ By:_________________________________
Its:_______________________________ Its:________________________________
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