EXHIBIT 10.J:
FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT is dated this _____ day of August, 2002 by
and between AMERICAN GLASS, INC. D/B/A X.X. XXXXX GLASS COMPANY, a Delaware
corporation (the "BORROWER" ); and SKY BANK, an Ohio banking association (the
"BANK" ).
RECITALS
WHEREAS, the Bank and the Borrower entered into that certain Loan
Agreement, dated October 31, 2000, pursuant to which the Bank extended to the
Borrower (i) credit in the original principal amount not to exceed Three
Million Dollars ($3,000,000), the terms and conditions of which were made
subject matter of that certain Facility A Note from the Borrower to the Bank
of even date; and (ii) credit in the original principal amount not to exceed
Two Million Nine Hundred Fifty Thousand Dollars ($2,950,000), the terms and
conditions of which were made subject matter of that certain Facility B Note
from the Borrower to the Bank of even date; and
WHEREAS, various Events of Default, as defined in the Loan Agreement,
have occurred and are continuing which include, but are not limited to, the
Events of Default occurring by reason of: (a) the Borrower being in an
overadvanced position of $357,464.01 as reflected on the Borrower's Borrowing
Base Certificate No. 64, dated as August 21, 2002; (b) the Borrower's failure
to make payment under the Facility A Note in the amount of $20,641, due and
owing for July and August 2002; (c) the Borrower's failure to make payment
under the Facility B Note, in the aggregate amount of $57,437.39, due to be
paid for August 5, 2002; and (d) the Borrower's failure to be in compliance
with the Tangible Net Worth requirement set forth in Section 5.14 of the Loan
Agreement (all Events of Defaults as existing as of the date hereof are
collectively referred to herein as the "EXISTING DEFAULTS" ); and
WHEREAS, as a result of the Existing Defaults, certain rights inure to
the Bank as against the Borrowers; and
WHEREAS, the Borrower has determined that it is in its best interests to
enter into this Forbearance Agreement and has requested that the Bank forbear
in the manner of its exercise of its remedies on account of the Existing
Defaults under the Loans and to make certain credit and other accommodations
requested by the Borrower in connection with the Loans; and
WHEREAS, the Bank is willing to accommodate the forbearance request of
the Borrower respecting the manner of enforcement of its remedies subject to
strict compliance by the Borrower with the terms and conditions of this
Forbearance Agreement, any other documents executed in connection with this
Forbearance Agreement, all other rights and remedies of the Bank remaining in
full force and effect irrespective of the terms and conditions of this
Forbearance Agreement.
NOW, THEREFORE, the Bank and the Borrower, in consideration of the
Recitals provided hereinabove, and the of the mutual promises and covenants
contained in this Forbearance Agreement, and for good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, and
intending this Forbearance Agreement to constitute a contemporaneous exchange
for new value, and intending to be legally bound hereby, covenant and agree as
follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Loan Agreement shall have such defined meaning when used herein.
2. Term. The term of this Forbearance Agreement shall commence on the
date first stated above and shall terminate on the earlier of the following
(the "TERMINATION DATE"):
a) July 7, 2003;
b) Upon the occurrence of a Forbearance Default (as defined in Paragraph
12 hereof, all subparagraphs inclusive); or
c) Upon payment in full of all Indebtedness of the Borrower as herein now
existing or hereinafter created, assumed or entered into; or
d) Such other date as agreed, in writing, by the Bank and the Borrower.
3. Outstanding Indebtedness. The Borrower acknowledges and agrees that
the outstanding Indebtedness under the Loan Agreement as of the date of this
Forbearance Agreement is set forth on Exhibit A.
4. Agreement to Forbear.
a) Forbearance. The Bank hereby covenants and agrees that, except as
otherwise provided in this Forbearance Agreement, subject to the Borrower's
compliance with the terms and conditions of this Forbearance Agreement, unless
and until the Termination Date, or a Forbearance Default shall occur, the Bank
shall not commence collection proceedings against the Borrower. The Borrower
expressly acknowledges and agrees that from and after the Termination Date,
the Bank shall have the right, at any time and from time to time, to exercise
any and all rights and remedies available against the Borrower, at law and in
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equity, to the same extent as the Bank would be entitled if the foregoing
forbearance had never been a part of this Forbearance Agreement.
b) Action by the Bank. The Borrower understands and agrees that the
forbearance by the Bank does not relate or extend to any actions that the Bank
may take under the Loan Documents to preserve and protect any collateral
securing the Indebtedness and the interest of the Bank in such collateral,
including, by way of example and not limitation, (i) filing actions against or
defending or intervening in actions brought by third parties or the Borrower
relating to such collateral or the interests of the Bank therein, or (ii) the
sending of notices to any persons or entities concerning the existence of
security interests or liens in favor of the Bank or concerning such
collateral.
5. Conditions Precedent to Effectiveness of Agreement. This Forbearance
Agreement shall not be effective unless and until the Borrower shall have
delivered to Bank the following fully executed documents in form acceptable to
the Bank:
a) Open-End Mortgage and Security Agreement, executed by Bellevue in
favor of either the Bank or Willowbrook;
b) Notice and Waiver of Rights Regarding Warrants of Attorney,
Execution Rights, and Waiver of Rights to Prior Notice and Judicial Hearing,
executed by Willowbrook;
c) Partial Assignment of Rights under Non-Negotiable Promissory Note
and Open-End Mortgage and Security Agreement, executed by Willowbrook in favor
of the Bank (the "PARTIAL ASSIGNMENT" ) ;
d) The First Amendment to Loan Agreement, executed by the Borrower
and NBI, Inc. (the "PARENT" ) and attached hereto as Exhibit C (the "FIRST
AMENDMENT TO LOAN AGREEMENT" );
6. Modification of Facility B Note. The obligations of the Borrower to
repay the unpaid principal amount of the Facility B Loan shall be amended and
restated as follows:
a) As of the date of this Forbearance Agreement, the outstanding
principal Indebtedness under the Facility B Loan shall be $2,011,215.37;
b) Commencing on the date of this Forbearance Agreement, the
aggregate outstanding principal balance of the Facility B Loan shall bear
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interest at Prime Rate plus one percent (1%), and thereafter shall bear
interest and adjust as provided in Section 2.03(a) and (b) of the Loan
Agreement;
c) Commencing on the date of this Forbearance Agreement and on
September 5, 2002, the Borrower shall make interest only payments on the
Facility B Loan in the amounts as set forth in the Amortization Schedule
attached hereto as Exhibit C;
d) Commencing on October 5, 2002, and continuing on the fifth day of
each month until thereafter, through and including January 5, 2003, the
Borrower shall make level principal plus interest payments on the Facility B
Loan in the amounts as set forth in Exhibit C;
e) Commencing on February 5, 2003, and continuing on the fifth day of
each month until thereafter, through and including August 5, 2003, the
Borrower shall make an interest only payment on the Facility B Loan in the
amounts as set forth in Exhibit C.
f) Commencing on September 5, 2003, and continuing on the fifth day
of each month until thereafter, through and including March 5, 2008, the
Borrower shall make level principal plus interest payments on the Facility B
Loan in the amounts as set forth in Exhibit C.
7. The Borrower's Obligations. In addition to any other duties of the
Borrower under this Forbearance Agreement, any Loan Documents, the Partial
Assignment, the Open-End Mortgage and Security Agreement, the First Amendment
to Loan Agreement, the Borrower shall:
a) On or before sixty (60) days following the date of this
Forbearance Agreement, deliver to the Bank written agreements executed by the
Borrower and all of its vendors, suppliers and other creditors pursuant to
which such creditors shall have agreed to terms and conditions pertaining to
the payment of the debt owed to them by the Borrower that are satisfactory to
the Bank, the determination of which shall be within the Bank's sole discretion.
b) As of the date of this Forbearance Agreement and continuing
through the Termination Date, Xxxxxx Xxxxxx shall be employed by the Borrower
on a full-time basis, and shall report to work at the Borrower's plant on a
full-time basis, in the capacity of president of the Borrower, or such other
position having the same or similar job description, during which time he
shall have devoted his best efforts in performing such duties, the
determination of which shall be within the Bank's sole discretion;
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c) Commencing on the date of this Forbearance Agreement and
continuing through the Termination Date, the Borrower shall not make any
payments to the Parent, any Affiliate, any Subsidiary, any division of the
foregoing, or Xxx X. Xxxxxx, in cash or in kind. Notwithstanding the foregoing,
if no Forbearance Default shall have occurred as of October 1, 2003, and subject
to the Bank's prior written consent, which shall not be unreasonably withheld,
the Borrower shall be permitted to pay to the Parent monthly maintenance fees
for administrative costs in amounts not to exceed a total of $3,000 per month.
The foregoing rights to make payments to the Parent shall immediately
terminate upon the occurrence of a Forbearance Default.
d) Use its best efforts to negotiate and deliver to the Bank within
five (5) days after execution of the collective bargaining agreement, a
favorable collective bargaining agreement with the American Flint Glass
Workers Union in approximate cost savings of $20,000 per month, the
determination of which shall be within the Bank's sole discretion.
e) On or before September 30, 2002, deliver to the Bank written
agreements with the Borrower's natural gas suppliers, reflecting terms and
conditions that are more favorable to the agreements under which the Borrower
presently purchases natural gas products from such suppliers, the
determination of which shall be within the Bank's sole discretion.
f) On or before thirty (30) days following the date of this Forbear-
ance Agreement, the Borrower shall deliver to the Bank a marketing plan
outlining its target market and for the promotion and sale of the Borrower's
products, a component of which may be the employment of an officer who shall be
primarily responsible for developing the sales and marketing of the Borrower's
products.
8. Payment. The Borrower shall cause to be received by the Bank all of
the Bank's expenses from and after August 2002 incurred by the Bank as a result
of the Defaults under the Loan Documents. Such expenses include, but are not
limited to, attorneys' fees, court costs and such other out-of-pocket expenses
as shall be presented to the Borrower.
9. Representations and Warranties. In addition to any covenants,
representations and warranties contained in the Loan Agreement, Borrower
hereby represents, warrants and covenants to the Bank that:
a) Authorization. This Forbearance Agreement has been duly and
validly executed and delivered by the Borrower and constitutes a legal, valid
binding and voluntary agreement of the Borrower, enforceable in accordance with
its terms and all other agreements, documents and instruments executed in
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connection herewith or therewith, and duly executed and delivered by the
Borrower pursuant to the provisions hereof, and it will constitute legal,
valid and binding and voluntary obligations of the Borrower enforceable in
accordance with the terms thereof.
b) No Fraudulent Intent. Neither the execution and delivery of this
Forbearance Agreement nor the performance of any actions required hereunder or
described herein is being consummated by the Borrower with, or as a result of,
any actual intent by the Borrower to hinder, delay or defraud any entity to
which the Borrower is now or will hereafter become indebted.
c) Recitals. The Recitals in this Forbearance Agreement are
incorporated herein by reference and made an integral part of this Forbearance
Agreement and are true and correct in all respects.
d) Incorporation of Representations. All representations, warranties
and covenants of the Borrower contained in the Loan Documents are true and
correct as of the date of this Forbearance Agreement except as same shall
solely and directly relate to the Existing Defaults.
e) Corporate Power; Authorization. The Borrower has the corporate
power and has been duly authorized by all requisite corporate action, to
execute and deliver this Forbearance Agreement and to perform its obligations
hereunder. This Forbearance Agreement has been duly executed and delivered by
the Borrower.
f) Enforceability. This Forbearance Agreement contains the legal,
valid and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their respective terms.
g) No Violation. Neither this Forbearance Agreement nor the
consummation of the transactions contemplated herein or the performance by the
Borrower of its obligations hereunder or thereunder will (i) violate any law,
rule, regulation or court order to which the Borrower is subject; (ii)
conflict with or result in a breach of any agreement or instrument to which
the Borrower is a party or by which it or its properties are bound, or (iii)
result in the creation or imposition of any Lien on any property of the
Borrower, whether now owned or acquired in the future, other than Liens in
favor of the Bank.
h) Obligations Absolute. The obligation of the Borrower to repay the
Indebtedness is absolute and unconditional and there exists no right of set
off or recoupment, counterclaim or defense of any nature whatsoever to such
payment.
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10. Reaffirmation of Loan Agreements. In consideration of the Bank's
agreement to forbear to the extent provided hereunder in the manner of
enforcement of its remedies, the Borrower agrees and reaffirms that the Loan
Documents constitute valid and legally binding obligations of the Borrower,
and that the Loan Documents are enforceable against the Borrower in accordance
with their terms; neither this Forbearance Agreement nor any other documents
described herein shall be deemed or construed to be a satisfaction,
reinstatement, novation or release of, the Loan Documents or any of them, or a
waiver by the Bank under the Loan Documents, or any of them or at law or in
equity; the Borrower has no defenses, set-offs, claims, counterclaims or
causes of action of any kind or nature whatsoever with respect to the
Indebtedness or the Loan Documents, or with respect to any other documents or
instruments now or heretofore evidencing, securing, or in any way relating to
any Loan Documents, or with respect to the administration or funding by the
Bank of any loans or other transactions that gave rise to any of the
Indebtedness, or any of the property of the Borrower, and the Borrower hereby
expressly waives, releases and relinquishes any and all such defenses,
set-offs, claims counterclaims and causes of action existing as of the date of
this Forbearance Agreement against the Bank.
Upon any Default or other occurrence or date permitting the Bank to
exercise its rights under this Forbearance Agreement or the Loan Documents,
and upon notice, the Bank shall have sole and exclusive discretionary
authority to apply the collateral, security or the proceeds thereof to any of
the Loans, in any order or amount as the Bank, in its sole discretion shall
deem appropriate. The Borrower specifically and expressly waives any and all
claimed rights to contest the Bank's rights in application of payment of such
proceeds in the manner so chosen by the Bank.
11. Effect and Construction of Loan Documents. Except as expressly
provided herein, the Loan Documents shall remain in full force and effect in
accordance with their respective terms. Without limiting the generality of
the foregoing, nothing herein shall be construed to:
a) impair the validity, perfection or priority of any Lien securing
the Indebtedness;
b) waive or impair any rights, powers or remedies of the Bank under
the Loan Documents with respect to the Existing Defaults or otherwise; or
c) require the Bank to make any loans or other extensions of credit
to the Borrower.
12. Default. Each of the following shall constitute a "Forbearance
Default":
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a) The occurrence of any Default or Event of Default under any of the
Loan Documents, the Open-End Mortgage and Security Agreement, the Partial
Assignment, the First Amendment to Loan Agreement, or any other agreement or
document, instruments, certificates and agreements executed and delivered in
connection with the Loan Agreement or this Forbearance Agreement, as any of
them may be amended, modified, extended or supplemented from time to time; or
b) Any representation of the Borrower in this Forbearance Agreement
or any financial or other statements provided to the Bank pursuant to this
Forbearance Agreement shall be untrue or inaccurate in any material respect,
the Bank being the sole and exclusive judge as to materiality;
c) The Borrower shall breach, default under or fail to fully perform
any of its respective agreements, obligations, or covenants under this
Forbearance Agreement, or any agreements, documents or instruments executed in
connection herewith.
13. Remedies. Upon the occurrence of a Forbearance Default, the
obligation of the Bank to forbear as contemplated hereunder, and any and all
other obligations of Bank pursuant to this Forbearance Agreement, shall
immediately terminate and be without further force and effect, in the same
manner and to the same extent as if the same had never been included in this
Forbearance Agreement, and the Bank shall immediately and without further notice
be entitled to exercise any and all rights or remedies of the Bank hereunder, or
under any of the Loan Documents, the Open-End Mortgage and Security Agreement,
the Partial Assignment, the First Amendment to Loan Agreement or under the law
of the Commonwealth of Pennsylvania, whether at law or in equity, against the
Borrower, including the power to confess judgment, which right the Borrower
expressly acknowledges and reaffirms, without further notice or demand to the
Borrower.
14. Payment Over of Proceeds Upon Dissolution. Etc. Upon any distribution
of assets of the Borrower in the event of (i) any insolvency or bankruptcy case
or proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relative to the Borrower
or to its creditors, as such, or to its assets, or (ii) any liquidation,
dissolution or other winding up of the Borrower, whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy, or (iii)
any assignment for the benefit of creditors or any marshaling of assets and
liabilities of the Borrower, then and in any such event the Bank shall be
entitled to receive indefeasible payment in full of all amounts due in respect
of the Indebtedness outstanding and any and all other amounts due to the Bank
from the Borrower, whether or not an Event of Default has occurred under the
terms of the Loan Documents.
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15. Miscellaneous.
a) Benefit of Agreement. This Forbearance Agreement shall be binding
upon and inure to the benefit of and be enforceable by the parties hereto,
their respective successors and assigns. No other person or entity shall be
entitled to claim any right or benefit hereunder, including, without
limitation, the status of a third-party beneficiary of this Forbearance
Agreement.
b) Governing Law. This Forbearance Agreement shall be governed by
and construed in accordance with the internal substantive laws of the
Commonwealth of Pennsylvania without regard to the choice of law principles.
c) Consent to Jurisdiction. The Borrower agrees that any action or
proceeding arising out of or relating to this Forbearance Agreement shall be
commenced in the United States District Court for the Western District of
Pennsylvania or in the Court of Common Pleas of Allegheny County,
Pennsylvania, and the Borrower agrees that a summons and complaint commencing
an action or proceeding in either of such courts shall be properly served and
shall confer personal jurisdiction if served personally or by certified mail
to the Borrower at the Borrower's address on the records of Sky Bank, or as
otherwise provided under the laws of the Commonwealth of Pennsylvania. The
Borrower hereby waives any claim that either Pittsburgh, Pennsylvania, or the
Western District of Pennsylvania is an inconvenient forum or that either of
the aforementioned courts lacks proper venue for any action arising out of any
transaction involving this Forbearance Agreement. Further, Borrower hereby
specifically consents to the personal jurisdiction of the United States
District Court for the Western District of Pennsylvania or the Court of Common
Pleas of Allegheny County, Pennsylvania, and waives and hereby acknowledges
that the Borrower is estopped from raising any claim that either such court
lacks personal jurisdiction over the Borrower so as to prohibit either such
court from adjudicating any issues raised in a complaint filed with either
such court against the Borrower by the Bank concerning this Forbearance
Agreement or payment to the Bank of the Indebtedness and any other amounts
owed to the Bank by the Borrower.
d) Waiver of Jury Trial. THE BORROWER HEREBY ACKNOWLEDGES THAT, IN
ORDER TO EXPEDITE THE RESOLUTION OF DISPUTES WHICH MAY ARISE UNDER THIS
FORBEARANCE AGREEMENT AND IN LIGHT OF THE COMPLEXITY OF THE TRANSACTIONS
CONTEMPLATED UNDER THIS FORBEARANCE AGREEMENT, THE BORROWER WAIVES THE RIGHT
TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING OF ANY KIND OR NATURE IN
ANY COURT TO WHICH IT MAY BE A PARTY, WHETHER ARISING OUT OF UNDER, OR BY
REASON OF THIS FORBEARANCE AGREEMENT, THE LOAN DOCUMENTS, THE AGREEMENTS
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DELIVERED TO THE BANK CONTEMPORANEOUSLY HEREWITH OR OTHER TRANSACTIONS
HEREUNDER OR BY REASON OF ANY OTHER CAUSE OR DISPUTE WHATSOEVER AMONG THE
PARTIES THERETO OF ANY KIND OR NATURE, AND ACKNOWLEDGE THAT SUCH WAIVER HAS
BEEN SPECIFICALLY NEGOTIATED AS PART OF THIS FORBEARANCE AGREEMENT.
e) No Waiver of Confession of Judgment or Other Remedy. NOTHING
CONTAINED IN THIS FORBEARANCE AGREEMENT SHALL BE CONSTRUED TO BE A WAIVER OF
THE BANK'S RIGHTS TO CONFESS JUDGMENT AGAINST THE BORROWER UNDER THE LOAN
AGREEMENTS OR ANY ONE OF THEM. NEITHER ANY FAILURE NOR ANY DELAY ON THE PART
OF THE BANK IN EXERCISING ANY RIGHT, POWER OR REMEDY HEREUNDER OR THEREUNDER
SHALL OPERATE AS A WAIVER THEREOF, NOR SHALL SINGLE OR PARTIAL EXERCISE
THEREOF PRECLUDE ANY OTHER OR FURTHER EXERCISE THEREOF OR THE EXERCISE OF ANY
OTHER RIGHT, POWER OR REMEDY.
f) Counterparts; Telecopied Signatures. This Forbearance Agreement
may be executed in any number of counterparts and by different parties to this
Forbearance Agreement on separate counterparts, each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute one and the same agreement. Any signature delivered by a party by
facsimile transmission shall be deemed to bean original signature hereto.
g) Notices. Any notices required to be given in this Forbearance
Agreement shall be given in the manner provided for in the Loan Agreement.
h) Survival. All representations, warranties, covenants, agreements,
undertakings, waivers and releases of the Borrower contained herein shall
survive the termination of the Forbearance Period and payment in full of the
Indebtedness of the Borrower under the Loan Documents.
16. Indemnification of the Bank. The Borrower, the Parent and Willowbrook,
jointly and severally, agree to indemnify the Bank and hold the Bank harmless
in respect of any and all claims, liabilities, damages and expenses
(including, without limitation, attorney's fees and expenses) asserted by any
Person whatsoever or incurred by the Bank arising in connection with this
Forbearance Agreement, the Loan Agreement, any of the Loan Documents, the
Open-End Mortgage and Security Agreement, the Partial Assignment and the First
Amendment to Loan Agreement. This indemnity agreement shall survive the
termination of this Forbearance Agreement, the Loan Agreement, the other
documents referenced in this Paragraph and the consummation of the
transactions contemplated hereby.
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This right of indemnification shall be in addition to and not in
substitution for any statutory, common law or contractual rights the Bank may
have for indemnification, contribution, subrogation, or any similar right or
claim the Bank may have against the Borrower.
17. Release. The Borrower and the Parent, in their individual capacities
and on behalf of the Affiliates and Subsidiaries, and Willowbrook, jointly and
severally, on behalf of themselves and their successors and assigns,
respective past, present and future officers, directors, shareholders, agents,
representatives, consultants, affiliates, subsidiary corporations, parent
corporations, and related corporate divisions, and respective heirs,
successors and assigns (the "Releasing Parties" ), do hereby remise, release,
acquit, satisfy and forever discharge the Bank and all of the Bank's
employees, agents, representatives, consultants, attorneys, accountants,
fiduciaries, servants, past, present and future officers, directors, partners,
predecessors, successors and assigns, affiliates, subsidiary corporations,
parent corporations, and related corporate divisions from any and all manner
of debts, accounting, bonds, warranties, representations, covenants, promises,
contracts, controversies, agreements, liabilities, obligations, expenses,
damages, judgments, executions, actions, claims, demand and causes of action
of any nature whatsoever, whether at law or in equity, either now accrued or
hereafter maturing or accruing, which any of the Releasing Parties, now have
or hereafter can, shall or may have by reason of any matter, cause or thing,
from the beginning of the world to and including the date of this Forbearance
Agreement, including specifically, without limitation, any matter arising out
of or relating to this Forbearance Agreement, the Loan Agreement, any of the
Loan Documents, the Open-End Mortgage and Security Agreement, the Partial
Assignment of Rights and the First Amendment to Loan Agreement, or of any
transaction giving rise to any of the Releasing Parties' obligations to the
Bank, and any other agreement or transaction between any of the Releasing
Parties and the Bank, or any subsidiary or affiliate of the Bank relating to
any of the Releasing Parties' obligations. The Releasing Parties and their
respective employees, agents, representatives, consultants, attorneys,
fiduciaries, servants, past, present and future officers, directors, partners,
predecessors, successors and assigns, affiliates, subsidiary corporations,
parent corporations and related corporate divisions, and their respective
heirs, successors and assigns, hereby covenant and agree never to institute or
cause to be instituted or continue prosecution of any suit or other form of
action or proceeding of any kind or nature whatsoever against the Bank or any
of their respective past, present or future officers, employees, agents,
attorneys, accountants, consultants, fiduciaries, servants, officers,
directors, partners, predecessors, successors and assigns, subsidiary
corporations, parent corporations and related corporate divisions, or any
related party, by reason of or in connection with any of the foregoing
matters, claims or causes of actions, other than the enforcement of this
Forbearance Agreement or any of the obligations of the Bank hereunder.
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18. Limitation of Damages. The Bank shall not be liable to the Borrower,
the Parent, any Subsidiary, any Affiliate and Willowbrook for any indirect,
special, consequential or punitive damages arising from any breach of
contract, tort or other wrong relating to or arising in connection with this
Forbearance Agreement, the Loan Agreement, any of the Loan Documents, the
Open-End Mortgage and Security Agreement, the Partial Assignment and the First
Amendment to Loan Agreement, or the action or inaction of the Bank or the
Borrowers hereunder and thereunder.
19. Consideration. The Borrower, the Parent, individually and on behalf
of the Affiliates and the Subsidiaries, and Willowbrook, each acknowledge and
agree that the indemnity agreement set out in Paragraph 16, the release
agreement set out in Paragraph 17 and the limitation of damages agreement set
out in Paragraph 18 above constitute a material inducement to the Bank to
forbear, which each of the foregoing has determined to be a direct advantage
and benefit, and good and valuable consideration, to such party.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Forbearance
Agreement as of the day and year first above written.
ATTEST: AMERICAN GLASS, INC. D/XX
X.X. XXXXX GLASS COMPANY
/s/ Xxxx Xxxxxxx By: /s/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: Chairman & CEO
/s/ Xxxxx X. Xxxxxxx SKY BANK
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
JOINDER SIGNATURE PAGE FOLLOWS THIS PAGE.]
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The Parent and Willowbrook hereby consent to, acknowledge and join the
provisions set forth in Paragraphs 16 through 19 hereof.
WITNESS/ATTEST: NBI, INC.
/s/ Xxxx Xxxxxxx By: /s/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: Chairman & CEO
WILLOWBROOK PROPERTIES, INC.
By: /s/ Xxx X. Xxxxxx
Name: Xxx X. Xxxxxx
Title: President
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STATE OF California )
) SS:
COUNTY OF Los Angeles )
On this the 23rd day of August, 2002, before me, a Notary Public, the
undersigned officer, personally appeared Xxx X. Xxxxxx, who acknowledged
himself to be the President of WILLOWBROOK PROPERTIES, INC. , a Delaware
corporation, and that he as such officer, being authorized to do so, executed
the foregoing instrument for the purposes therein contained by signing the
name of the corporation as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxxxx Xxxxxxxx
Notary Public
My Commission Expires: 7/28/05
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STATE OF California )
) SS:
COUNTY OF Los Angeles )
On this the 23rd day of August, 2002, before me, a Notary Public, the
undersigned officer, personally appeared Xxx X. Xxxxxx, who acknowledged
himself to be the Chairman & CEO of NBI, INC., and that he as such officer,
being authorized to do so, executed the foregoing instrument for the purposes
therein contained by signing the name of the corporation as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxxxx Xxxxxxxx
Notary Public
My Commission Expires: 7/28/05
16
STATE OF California )
) SS:
COUNTY OF Los Angeles )
On this the 23rd day of August, 2002, before me, a Notary Public, the
undersigned officer, personally appeared Xxx X. Xxxxxx, who acknowledged
himself to be the Chairman & CEO of AMERICAN GLASS, INC. D/B/A X.X. XXXXX
GLASS COMPANY, and that he as such officer, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by
signing the name of the corporation as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxxxx Xxxxxxxx
Notary Public
My Commission Expires: 7/28/05
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