1
EXHIBIT 10.35
EXECUTION COPY
SEVENTH AMENDMENT made as of December 30, 1996 (the "Amendment") to
FORBEARANCE AGREEMENT made as of June 7, 1996, as amended by the First Amendment
thereto, dated as of June 28, 1996 (the "First Amendment"), the Second Amendment
thereto, dated as of August 13, 1996 (the "Second Amendment"), the Third
Amendment thereto, dated as of September 3, 1996 (the "Third Amendment"), the
Fourth Amendment thereto, dated as of September 27, 1996 (the "Fourth
Amendment"), the Fifth Amendment thereto, dated as of October 30, 1996 (the
"Fifth Amendment") and the Sixth Amendment thereto, dated as of November 28,
1996 (the "Sixth Amendment") (as so amended and as amended through the date
hereof, the "Forbearance Agreement") among XXXXX TECHNOLOGY CORPORATION, BCM
ENGINEERS INC., a Pennsylvania corporation, BCM ENGINEERS INC., an Alabama
corporation, XXXXXX ENVIRONMENTAL SERVICES INC., each of the Lenders which are
parties to the Loan Agreement, and THE CHASE MANHATTAN BANK, as Agent for the
Lenders. Terms which are capitalized herein and not otherwise defined shall have
the meanings ascribed to them in the Forbearance Agreement.
WHEREAS, pursuant to the Sixth Amendment, the Current Forbearance
Period automatically terminates on December 31, 1996; and
WHEREAS, the Borrowers have requested the Lenders to consider
extending the Current Forbearance Period to January 14, 1997 and the Lenders
have so agreed, on the terms and subject to the fulfillment of the conditions
contained in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. EXTENSION OF CURRENT FORBEARANCE PERIOD. The Current Forbearance
Period is hereby extended to January 14, 1997. Accordingly, the First Amendment
is hereby modified by deleting the third sentence of Section 2 thereof and by
substituting the following in lieu thereof:
"However, for the period commencing on the date hereof and
terminating on January 14, 1997 (the "Current Forbearance
Period"), so long as none of the events described in the
following clauses (a), (b) or (c) shall have occurred during
the Current Forbearance Period, the Lenders shall not demand
payment of the Liabilities, nor shall the Lenders otherwise
seek to exercise any of their rights or remedies under the
Loan Agreement, any of the Other Agreements or applicable law
with respect to the Designated Default (and the Forbearance
Agreement is hereby amended to so provide): (a) any Event of
Default (other than the Designated
2
Default) shall have occurred or other event which, with the giving of
notice or passage of time would constitute an Event of Default shall
have arisen, (b) the Xxxxx Award shall have been paid by any Borrower
in whole or in part or shall have been entered as a judgment in any
court of competent jurisdiction and the enforcement of such judgment
shall not have been stayed or (c) any default by any Borrower in the
performance of the terms of this Agreement shall have occurred."
Section 2. Conditions Precedent to Effectiveness of Amendment. This Amendment
shall not be effective unless and until each of the following conditions shall
have been satisfied in the sole discretion of the Lenders or waived by the
Lenders, for whose sole benefit such conditions exist:
(a) The Agent and each of the Lenders shall have received a
fully executed counterpart or original of this Amendment.
(b) Upon the effectiveness of this Amendment, all
representations and warranties set forth in the Loan Agreement shall be true
and correct in all material respects on and as of the effective date hereof,
except for (x) such inducing representations and warranties that were only
required to be true and correct as of a prior date, (y) such representations
and warranties as relate to the defaults described in clause (ii) hereof and
(z) such representations and warranties as relate to the occurrence of an event
which has had or is reasonably likely to have a Material Adverse Effect, but
only to the extent that such event constitutes the Xxxxx Event, and no Default
or Event of Default shall have occurred and be continuing, other than (i) the
Designated Default and (ii) defaults under agreements made in the ordinary
course of business between or among any of the Borrowers and Persons other than
the Agent, the Lenders, or any Affiliate of the Borrowers, such as lease
agreements, none of which agreements is material to the business of such
Borrower and none of which defaults, singly or in the aggregate, has had or is
reasonably likely to have, a Material Adverse Effect.
(c) Except for the collectibility of the Referenced Account
and the occurrence of the Xxxxx Event,no event or development shall have
occurred since the date of delivery to the Lenders of the Borrowers' most
recent financial statements which event or development has had or is reasonably
likely to have a Material Adverse Effect.
(d) All corporate and legal proceedings and all documents and
instruments executed or delivered in connection with this Amendment shall be
satisfactory in form and substance satisfactory to the Lenders and their
counsel, and the Lenders and their counsel shall have received all information
and copies of all documents which the Lenders and their counsel may have
requested in connection herewith and the matters contemplated hereunder, such
documents, when requested by them, to be certified by appropriate corporate
authorities.
3
(e) The Lenders shall have received such further agreements,
consents, instruments and documents as may be necessary or proper in the
reasonable opinion of the Lenders, the Agent and their counsel to carry out the
provisions and purposes of this Amendment.
SECTION 3. GENERAL PROVISIONS.
(a) Nothing contained in this Amendment shall be deemed to be
a waiver of any Defaults or Events of Default, whether or not the Agent or any
of the Lenders shall have any knowledge thereof, nor shall anything contained
in this Amendment be deemed to be a waiver of any future Default or Event of
Default whatsoever.
(b) Except as herein expressly amended, the Forbearance
Agreement, the First Amendment thereto, the Second Amendment thereto, the Third
Amendment thereto, the Fourth Amendment thereto, the Fifth Amendment thereto,
the Sixth Amendment thereto and the Loan Agreement and all other agreements,
documents, instruments and certificates executed in connection therewith, are
ratified and confirmed in all respects and shall remain in full force and
effect in accordance with their respective terms.
(c) All references in any document or agreement to the
Forbearance Agreement shall mean the Forbearance Agreement as amended as of the
effective date hereof.
(d) This Amendment may be executed by the parties hereto
individually or in combination, in one or more counterparts, each of which
shall be an original and all which shall constitute one and the same agreement.
(e) The Third Amendment, Waiver and Consent dated as of May
15, 1996 is hereby modified by deleting the date "December 31, 1996" set forth
in Section 7(a) thereof and by substituting in lieu thereof the date "January
14, 1997".
(f) This Amendment shall be governed and controlled by the
laws of the State of New York without reference to its choice of law principles.
4
IN WITNESS WHEREOF, each of the Borrowers, BCM-Alabama, the Lenders and
the Agent have caused this Amendment to be duly executed by their respective
officers thereunto duly authorized as of the day and year first above written.
XXXXX TECHNOLOGY CORPORATION XXXXXX ENVIRONMENTAL SERVICES INC.
formerly known as Xxxxx Environmental
Technologies Corporation
By: Xxxxxxx X. Xxxxxxxx By: Xxxxxxx X. Xxxxxxxx
---------------------------------- ---------------------------------
(Title) Vice President -- Finance (Title) Vice President
BCM ENGINEERS INC., THE CHASE MANHATTAN BANK, as a
a Pennsylvania corporation Lender and as Agent, formerly known
as Chemical Bank
By: Xxxxxxx X. Xxxxxxxx By:
---------------------------------- ---------------------------------
(Title) Vice President (Title)
BCM ENGINEERS, INC., BTM CAPITAL CORPORATION, formerly
Alabama corporation known as BOT Financial Corporation
By: Xxxxxxx X. Xxxxxxxx By:
---------------------------------- ---------------------------------
(Title) Vice President (Title)
