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EXHIBIT 10.67
THIRD FORBEARANCE EXTENSION AGREEMENT
THIRD FORBEARANCE EXTENSION AGREEMENT, dated as of November 6,
2000 (this "Forbearance Extension"), among
(i) DENALI INCORPORATED (the "Borrower");
(ii) each of the guarantors which are signatories hereto (each
a "Guarantor", collectively, the "Guarantors");
(iii) CANADIAN IMPERIAL BANK OF COMMERCE (in its capacity as
administrative agent for the Lenders referenced below, the
"Administrative Agent");
(iv) ING (U.S.) CAPITAL LLC (in its capacity as documentation
agent for the Lenders referenced below, the "Documentation Agent"); and
(v) the lenders party to the Credit Agreement referenced below
(the "Lenders"), in respect of the Credit Agreement referenced below.
WITNESSETH:
WHEREAS, the Borrower, the Lenders, the Administrative Agent
and the Documentation Agent have entered into that certain Credit Agreement,
dated as of January 12, 1999 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement");
WHEREAS, the Guarantors are party to that certain Guarantee,
dated as of January 12, 1999 (as amended, supplemented or otherwise modified
from time to time, the "Guarantee"), in favor of the Administrative Agent for
the benefit of the Lenders;
WHEREAS, the Borrower, the Guarantors, the Lenders, the
Administrative Agent and the Documentation Agent have entered into that certain
Forbearance Agreement, dated as of June 30, 2000 (the "Forbearance Agreement"),
as extended by that certain Forbearance Extension Agreement, dated as of July
31, 2000 (the "First Forbearance Extension"), as extended by that certain Second
Forbearance Extension Agreement, dated as of September 30, 2000 (the "Second
Forbearance Extension");
WHEREAS, the Specified Events of Default (as defined in the
Forbearance Agreement) and the Additional Specified Events of Default (as
defined in the Second Forbearance Extension) have occurred and are continuing;
WHEREAS, the Forbearance Termination Date (as defined in the
Forbearance Agreement and as extended by the Second Forbearance Extension) has
expired;
WHEREAS, the Borrower and the Guarantors have requested that
the Lenders, the Administrative Agent and the Documentation Agent to revive the
Forbearance Period and extend the Forbearance Termination Date and to provide
for certain other amendments or modifications to the Credit Agreement and the
Forbearance Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual
covenants contained herein and for other valuable consideration, the receipt and
adequacy of which are hereby
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acknowledged, the Borrower, the Guarantors, the Administrative Agent, the
Documentation Agent and the Lenders hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise
defined herein shall have the meanings ascribed thereto in the Credit Agreement,
the Forbearance Agreement, the First Forbearance Extension or the Second
Forbearance Extension, as applicable.
2. Forbearance Extension; Deferral of Principal; Other
Modifications.
(a) The Forbearance Period is hereby revived and the
Forbearance Termination Date is hereby amended to be the earliest to
occur of (i) November 30, 2000, (ii) the closing of the Xxxxx
Transaction and (iii) the occurrence of a Forbearance Event of Default.
(b) During the Forbearance Period, no Eurodollar Loan
shall be made or continued with an Interest Period that ends later than
November 30, 2000.
(c) Section 2(e) of the Second Forbearance Extension
is hereby superceded by the following. Subject to the terms and
conditions set forth herein, the Lenders shall defer their rights to
exercise any warrants held by the Lenders relating to the Borrower that
are exercisable on July 31, 2000, August 31, 2000, September 30, 2000
or October 31, 2000 until the Forbearance Termination Date. If the
Xxxxx Transaction is consummated on or prior to November 30, 2000, the
Lenders shall surrender such warrants to the Borrower for cancellation.
3. Termination. The forbearance and deferral of principal
payments set forth in Section 3 of the Forbearance Agreement, as modified by
Section 2 of the First Forbearance Extension, Section 2 of the Second
Forbearance Extension and Section 2 of this Forbearance Extension shall
terminate on the Forbearance Termination Date. Upon such termination, the
Administrative Agent, the Documentation Agent and the Lenders shall be entitled
to exercise all rights and remedies granted to them pursuant to the Credit
Agreement and the other Loan Documents or under applicable law.
4. Representations and Warranties. In order to induce the
Administrative Agent, the Documentation Agent and the Lenders to enter into this
Forbearance Extension, the Borrower and each Guarantor hereby represents and
warrants to the Administrative Agent, the Documentation Agent and to each Lender
that:
(a) Other than as set forth in Section 4(b), each of
the representations and warranties made by the Borrower and each of the
Guarantors in each Loan Document to which it is a party is true and
correct in all material respects as of the date hereof.
(b) Other than the Specified Events of Default and
the Additional Specified Events of Default, no Default or Event of
Default has occurred and is continuing as of the date hereof.
5. Conditions Precedent to Effectiveness of Forbearance
Extension. This Forbearance Extension shall not become effective unless and
until:
(a) the Administrative Agent has received this
Forbearance Extension, executed and delivered by a duly authorized
officer of the Borrower, each Guarantor, the Required Lenders, the
Administrative Agent and the Documentation Agent;
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(b) the Administrative Agent shall have received for
the account of each Lender payment of all accrued interest, excluding
any accrued default interest, through October 31, 2000;
(c) payments due to the holders of the Permanent
Subordinated Debt as of the date hereof shall have been deferred
pursuant to a waiver agreement, dated as of the date hereof, among the
Borrower and the holders of the Permanent Subordinated Debt and such
waiver agreement shall have been duly executed by the Borrower and each
such noteholder and shall be in form and substance satisfactory to the
Administrative Agent; and
(d) the Administrative Agent has received such other
documents and information as the Administrative Agent may reasonably
require, which documents and information shall be satisfactory to the
Administrative Agent in its sole discretion.
6. Forbearance Events of Default. The Forbearance Period shall
immediately terminate and the forbearance and deferral of principal payments set
forth in Section 3 of the Forbearance Agreement, as modified by Section 2 of the
First Forbearance Extension, Section 2 of the Second Forbearance Extension and
Section 2 of this Forbearance Extension shall be of no further force and effect
upon the occurrence of any of the following (each, a "Forbearance Event of
Default"):
(a) the occurrence of one or more Defaults or Events
of Default under the Credit Agreement (other than a Specified Event of
Default or an Additional Specified Event of Default); or
(b) any representation or warranty made or deemed
made by the Borrower or any Guarantor herein, in the Forbearance
Agreement, the First Forbearance Extension or this Forbearance
Extension or which is contained in any certificate, document or
financial or other statement created and/or delivered at any time under
or in connection with the Forbearance Agreement, the First Forbearance
Extension, the Second Forbearance Extension or this Forbearance
Extension or on or subsequent to the date hereof under or in connection
with any other Loan Document shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) the Borrower or any Subsidiary shall default in
the observance or performance of any agreement contained herein or in
the Forbearance Agreement, the First Forbearance Extension, the Second
Forbearance Extension or this Forbearance Extension (after giving
effect to the provisions hereof); or
(d) the Borrower shall make, or permit to be made by
any Guarantor, any payment to any Person in respect of the Permanent
Subordinated Debt so long as an Event of Default shall continue to
exist under the Credit Agreement and such payment shall be waived by
the holders of the Permanent Subordinated Debt or a payment blockage
notice shall remain in effect, in each case without the prior written
consent of the Administrative Agent, the Documentation Agent and the
Lenders; or
(e) the Administrative Agent shall determine in good
faith that the Xxxxx Transaction will not close on or prior to November
30, 2000; or
(f) the lenders under the Dutch Credit Facility shall
accelerate the payment of principal owing under the Dutch Credit
Facility or shall take any action in furtherance of the exercise of
remedies in respect of the Dutch Credit Facility.
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7. Absence of Waiver. The parties hereto agree that the
agreements set forth herein shall not be deemed to:
(a) be a consent to cure, or waiver of, any Default
or Event of Default;
(b) except as expressly set forth herein, modify or
limit any other term or condition of the Credit Agreement, the
Forbearance Agreement, the First Forbearance Extension, the Second
Forbearance Extension or any other Loan Document;
(c) impose upon any Lender, the Administrative Agent
or the Documentation Agent any commitment or obligation, express or
implied, to consent to any amendment or further modification of the
Credit Agreement, the Forbearance Agreement, the First Forbearance
Extension or other Loan Documents;
(d) impose upon any Lender, the Administrative Agent
or any Documentation Agent any commitment or obligation, express or
implied, to grant or extend any financial accommodations to the
Borrower or the Guarantors (other than as expressly set forth herein)
or to modify or extend the Forbearance Agreement, the First Forbearance
Extension or this Forbearance Extension; or
(e) prejudice any right or remedy that the
Administrative Agent, the Documentation Agent or the Lenders may now
have or may in the future have under the Credit Agreement or under or
in connection with the other Loan Documents or any instrument or
agreement referred to therein including, without limitation, any right
or remedy resulting from any Default or Event of Default.
8. Release of Claims and Waiver. Each of the Borrower and each
Guarantor hereby releases, remises, acquits and forever discharges each Lender,
the Administrative Agent and the Documentation Agent and each of their
employees, agents, representative, consultants, attorneys, officers, directors,
partners, fiduciaries, predecessors, successors and assigns, subsidiary
corporations, parent corporations and related corporate divisions (collectively,
the "Released Parties"), from any and all actions, causes of action, judgments,
executions, suits, debts, claims, demands, liabilities, obligations, damages and
expenses of any and every character, known or unknown, direct or indirect, at
law or in equity, of whatever nature or kind, whether heretofore or hereafter
arising, for or because of any matter or things done, omitted or suffered to be
done by any of the Released Parties prior to and including the date of execution
hereof, and in any way directly or indirectly arising out of any or in any way
connected to this Agreement or the Loan Documents (collectively, the "Released
Matters"). Each of the Borrower and each Guarantor hereby acknowledges that the
agreements in this Section 8 are intended to be in full satisfaction of all or
any alleged injuries or damages arising in connection with the Released Matters.
Each of the Borrower and each Guarantor hereby represents and warrants to the
Administrative Agent, the Documentation Agent and each Lender that it has not
purported to transfer, assign or otherwise convey any right, title or interest
of the Borrower or any Guarantor in any Released Matter to any other Person and
that the foregoing constitutes a full and complete release of all Released
Matters.
9. Miscellaneous.
(a) Section headings used in this Forbearance
Extension are for convenience of reference only and shall not affect
the construction of this Forbearance Extension.
(b) This Forbearance Extension may be executed by one
or more of the parties hereto by facsimile or in any number of separate
counterparts and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
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(c) This Forbearance Extension and the rights and
obligations of the parties under this Forbearance Extension shall be
governed by, and construed and interpreted in accordance with, the law
of the State of New York.
(d) This Forbearance Extension shall be deemed a
"Loan Document" for purposes of the Credit Agreement and the other Loan
Documents.
(e) This Forbearance Extension constitutes the entire
agreement among the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous oral or written agreements
with respect to the subject matter hereof.
(f) Time is of the essence in this Forbearance
Extension.
(g) No amendment or modification of this Forbearance
Extension shall be effective unless made in writing and signed by all
parties. Each of the Borrower and each of the Guarantors acknowledges
and agrees that any and all future discussions with any Lender, the
Administrative Agent or the Documentation Agent shall be without
prejudice to any Lender, the Administrative Agent or the Documentation
Agent and shall not be deemed to modify, waive, or amend any term or
provision of this Forbearance Extension or the Loan Documents.
IN WITNESS WHEREOF, the parties hereto have caused this
Forbearance Extension to be duly executed and delivered as of the day and year
first above written.
DENALI INCORPORATED,
as Borrower
By /S/ XXXXXXX X. XXXX
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Name: XXXXXXX X. XXXX
Title: CHAIRMAN, PRESIDENT & CEO
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
By: XXXXXX XXXXXXX
Name: XXXXXX XXXXXXX
Title: EXECUTIVE DIRECTOR
ING (U.S.) CAPITAL LLC,
as Documentation Agent and as a Lender
By: XXXXXX X. XXXXXXX
Name: XXXXXX X. XXXXXXX
Title: DIRECTOR
CIBC INC.,
as a Lender
By: XXXXXX XXXXXXX
Name: XXXXXX XXXXXXX
Title: EXECUTIVE DIRECTOR
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KEY CORPORATE CAPITAL INC.,
as a Lender
By: XXXXXXX X. XXXXXXX
Name: XXXXXXX X. XXXXXXX
Title: VICE PRESIDENT
BANK OF OKLAHOMA N.A.,
as a Lender
By: XXXXXX X. BEEN
Name: XXXXXX X. BEEN
Title: VICE PRESIDENT
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XXXXXXXXX XXXX XX XXXXX, N.A.,
as a Lender
By: XXXXXXX X. XXXXX
Name: XXXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT
