Exhibit 10.13
AMENDMENT NO. 3 TO
FORBEARANCE AGREEMENT
This Amendment No. 3 to Forbearance Agreement ("Amendment") dated as of
July 13, 2004 is made and entered into by and among Continental Global Group,
Inc., a Delaware corporation (the "Company"), N.E.S. Investment Co. ("N.E.S.")
and Wayzata Advisers LLC, as successor to CFSC Wayland Advisers, Inc.
("Wayland").
BACKGROUND
X. Xxxxxxx is a holder of, or investment manager or advisor for certain
discretionary accounts that are holders or beneficial owners of, certain of the
Notes.
B. The Company, Wayland and N.E.S. are in good faith negotiations regarding the
restructuring of the terms of the Notes.
C. The Company, N.E.S. and Wayland entered into that certain Forbearance
Agreement dated as of April 26, 2004, as amended by that certain Amendment No.1
to Forbearance Agreement dated May 27, 2004 and as further amended by that
certain Amendment No. 2 to Forbearance Agreement dated as of June 14, 2004 (the
"Forbearance Agreement"), pursuant to which among other things, Wayland agreed
to forbear the exercise of certain rights and remedies under or with respect to
the Notes owned or controlled by Wayland while the parties are negotiating the
restructuring of the terms of the Notes.
D. The Company, NES and Wayland mutually desire to extend the term of the
Forbearance Agreement in accordance with the terms of this Amendment.
NOW, THEREFORE, in consideration of the promises and mutual
agreements herein contained, the parties hereto, intending to be legally bound
hereby, hereby agree as follows:
1. Definitions. Capitalized terms used in this Amendment and not defined
elsewhere herein shall have the respective meanings set forth in the Forbearance
Agreement.
2. Termination of Agreement. Paragraph 3(ii) of the Forbearance Agreement is
hereby amended by deleting the date "July 15, 2004" and replacing such date with
the date "July 23, 2004".
3. Confidentiality Agreement. Paragraph 18 of the Forbearance Agreement is
hereby amended by deleting the date "July 15, 2004" and replacing such date with
the date "July 23, 2004".
4. Governing Law. This Amendment shall be governed in all respects by the laws
of the State of New York applicable to contracts made and to be performed in the
State of New York without regard to any conflicts of law provision that would
require the application of the law of any other jurisdiction.
5. Counterparts. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original and all of which shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
by facsimile shall be as effective as delivery of a manually executed
counterpart.
6. Ratification. Except as modified pursuant to this Amendment, all of the
terms, covenants and conditions of the Forbearance Agreement shall remain in
full force and effect and are hereby ratified and confirmed in all respects.
[Remainder of this page intentionally left blank. Signature
page follows.]
IN WITNESS WHEREOF, each of the parties has caused this
Amendment to be executed and delivered by its duly authorized officers as of the
date first written above.
Continental Global Group, Inc.
By:
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Name:
Title:
Wayzata Advisers LLC
By:
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Name:
Title:
N.E.S. INVESTMENT CO.
By:
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Name:
Title:
