Exhibit 10.5
FORBEARANCE AND REAFFIRMATION AGREEMENT
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THIS FORBEARANCE AND REAFFIRMATION AGREEMENT (the "Agreement") is made and
entered into as of the 15th day of June, 2001, by and among AMERICAN NATIONAL
BANK AND TRUST COMPANY OF CHICAGO, a national banking association (the "Bank")
and Xxxxxxxxxxx.xxx Inc., a Michigan corporation with its principal place of
business at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Company").
A. WHEREAS, the Company is currently indebted to the Bank pursuant to,
inter alia, the terms of the following instruments or agreements:
(i) Promissory Note (Secured) dated October 1, 2000, in the principal
amount of Three Million and 00/100 Dollars ($3,000,000.00), made, executed and
delivered by the Company to the Bank, as amended from time to time (the "October
Note");
(ii) Installment Note (Secured) dated September 22, 2000 in the
principal amount of Three Million Five Hundred Thousand and 00/100 Dollars
($3,500,000.00), made, executed and delivered by the Company to the Bank (the
"September Note");
(iii) Loan and Security Agreement dated as of January 19, 2000, by and
between the Company and the Bank, as amended from time to time, including under
that certain First Amendment to Loan and Security Agreement dated September 22,
2000 (collectively, the "Loan Agreement");
B. WHEREAS, at the request of the Company, the Bank has issued the
following letters of credit:
(i) Letter of Credit issued by the Bank on May 8, 2000 in the original
amount of Ninety-Two Thousand Three Hundred Forty and 00/100 Dollars
($92,340.00) in favor of 230 Park Investors LLC, as amended and supplemented or
clarified by all other documents executed and/or delivered to the Bank in
connection therewith (the "Park LC");
(ii) Letter of Credit issued by the Bank on May 16, 2000 in the
original amount of Two Hundred Sixty-Eight Two Hundred Seven and 00/100 Dollars
($268,207.00) in favor of 000 Xxxxxxx Xxxxxx Associates, LLC, as amended and
supplemented or clarified by all other documents executed and/or delivered to
the Bank in connection therewith (the "Xxxxxxx XX");
(iii) Letter of Credit issued by the Bank on May 5, 2000 in the
original amount of Seven Hundred Fifty Thousand and 00/100 Dollars ($750,000.00)
in favor of 000 Xxxxx Xxxxxxxx Trust (the "Michigan Trust"), as amended and
supplemented or clarified by all other documents executed and/or delivered to
the Bank in connection therewith (the "Michigan Trust LC 1"); and
(iv) Letter of Credit issued by the Bank on April 5, 2000 in the
original amount of Five Hundred Thousand and 00/100 Dollars ($500,000.00) in
favor of 000 Xxxxx Xxxxxxxx Trust, as amended and supplemented or clarified by
all other documents executed and/or delivered to the Bank in connection
therewith (the "Michigan Trust LC 2") (the letters of credit referred to in
subparagraphs i-iv and the "New Michigan Trust LC" as hereinafter defined, shall
sometimes be collectively referred to as the "LCS") (All obligations,
indebtedness or liabilities of the Company to the Bank as defined, described or
otherwise set forth under the October Note, the September Note, or the Loan
Agreement, including all direct and contingent obligations of the Company to the
Bank under the LCS and the obligation to reimburse the Bank for any draws
thereunder, and any and all overdrafts heretofore, now or hereafter arising
under any bank accounts maintained by the Company at the Bank, shall be
hereinafter collectively referred to as the "Company Obligations").
C. WHEREAS, under the Loan Agreement, to secure the prompt payment to Bank
of the Company Obligations and the prompt, full and faithful performance by
Borrower of all the provisions to be kept, observed or performed by Borrower
under the Loan Agreement or the "Other Agreements" as defined in the Loan
Agreement, the Company granted to the Bank a security interest in and to, and
collaterally assigned to the Bank, inter alia, all of Company's property,
wherever located, whether now or hereafter existing, owned, licensed, leased (to
the extent of Company's leasehold interest therein), consigned (to the extent of
Company's ownership therein), arising and/or acquired, including without
limitation all of Company's: (a) Accounts (as that term is defined in the Loan
Agreement), chattel paper, tax refunds, contract rights, leases, leasehold
interests, letters of credit, instruments, documents, documents of title and
beneficial interests; (b) all goods whose sale, lease or other disposition by
Company have given rise to Accounts and have been returned to or repossessed or
stopped in transit by Company; (c) certificated and uncertificated securities;
(d) goods, including without limitation all its consumer goods, machinery,
equipment, farm products, fixtures and inventory; (e) liens, guaranties and
other rights and privileges pertaining to any of the Collateral (as defined in
the Loan Agreement); (f) monies, reserves, deposits, deposit accounts and
interest or dividends thereon, cash or cash equivalents; (g) all property now or
at any time or times hereafter in the possession, or under the control of Bank
or its bailee; (h) all accessions to the foregoing, all litigation proceeds
pertaining to the foregoing and all substitutions, renewals, improvements and
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replacements of and additions to the foregoing; and (i) all books, records and
computer records in any way relating to the Collateral (as defined in the Loan
Agreement). (All of the aforesaid property and assets herein above described in
this paragraph C, including subparagraphs (a)-(i) inclusive, and in paragraph D
below is hereinafter individually and collectively referred to as the "Bank
Collateral.")
D. WHEREAS, in addition to the foregoing, on or about September 22, 2000,
the Company made, executed and delivered in favor of the Bank, that certain
Pledge Agreement, pursuant to which the Company granted in favor of the Bank,
inter alia, a first lien and security interest in that certain Bank One
Investment Advisors Account #2600171300.
E. WHEREAS, to perfect the Bank's liens and security interests in the Bank
Collateral, the Company executed and delivered to the Bank, inter alia, various
financing statements (the instruments and agreements evidencing the Company
Obligations as referenced above, and any and all other documents, instruments
and agreements heretofore, now or hereafter executed in favor of and/or
delivered to the Bank by the Company or otherwise related thereto shall be
hereinafter collectively referred to as the "Loan Documents").
F. WHEREAS, the Company is in default under the Loan Documents, as a
result, inter alia, of failing to remain in compliance with various financial
covenants under the Loan Agreement (the "Company Defaults").
G. WHEREAS, the Company acknowledges that as a result of the Company
Defaults, pursuant to the terms of the Loan Documents, the Bank presently has
the unconditional and absolute right to demand payment in full of the Company
Obligations and that the Company is unconditionally and absolutely liable to the
Bank therefor.
H. WHEREAS, the Company further acknowledges that as a result of the
Company Defaults, the Bank presently has the absolute and unconditional right to
exercise and enforce any and all remedies under the Loan Documents and
applicable law to recover the Company Obligations, including with respect to the
Bank Collateral.
I. WHEREAS, the Company is desirous of having the Bank refrain and forbear
from exercising the rights and remedies available to the Bank under the Loan
Documents from the date hereof through and including December 31, 2002 (the
"Forbearance Period"), in the manner hereinafter set forth, and to extend the
additional financial accommodations identified hereunder with respect to the
LCS.
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J. WHEREAS, to induce the Bank to forbear as provided in this Agreement,
the Company herein agrees, subject in all respects to the terms of this
Agreement: (i) to ratify and reaffirm all of the Company Obligations, and the
terms and conditions of the Loan Documents; (ii) to grant in favor of the Bank a
first lien and security interest in those assets and properties of the Company
which do not presently comprise the Bank Collateral, including, without
limitation all of the Company's intangible personal property and intellectual
property (the "Additional Bank Collateral"); (iii) to make the payments
hereinafter set forth; (iv) to satisfy in full the Company Obligations on or
before the expiration of the Forbearance Period; (v) that upon the expiration or
termination of the Forbearance Period pursuant to the terms hereof, the Bank
shall have the unconditional and absolute right to recover payment in full of
the Company Obligations to the extent not theretofore satisfied in full, and to
exercise any and all rights and remedies available under the Loan Documents or
this Agreement without the necessity of further demand or acts of acceleration;
(vi) to provide the Bank with the additional reports and disclosures hereinafter
identified and described; and (vii) to fully comply with the additional
undertakings provided for hereunder.
K. WHEREAS, as further inducement to the Bank to forbear as requested in
this Agreement, the Company has advised the Bank of its ongoing negotiations for
the infusion of additional capital and loans from Landmark Communications, Inc.
and/or certain of its affiliates (collectively referred to as "Landmark") (the
"Landmark Infusion").
L. WHEREAS, the Company and Landmark have advised the Bank that the
forbearance hereunder is a condition to the Landmark Infusion.
M. WHEREAS, subject to the terms and conditions of this Agreement, the
Bank has agreed to forbear from enforcing its rights under the Loan Documents
during the Forbearance Period.
N. WHEREAS, the parties hereto expressly acknowledge and agree that as of
the date hereof, subject to the terms of this Agreement, the Bank has not
waived, modified or released, directly or indirectly, expressly or impliedly any
or all of its rights or remedies to enforce the terms of the Loan Documents or
to otherwise seek collection of the Company Obligations, with all such rights
being expressly reserved. Nothing contained in this Agreement shall be deemed or
construed to be a waiver, modification, release or forbearance of any kind or
nature whatsoever with respect to the Company Obligations, or the rights and
remedies available to the Bank, except as expressly provided herein, and all
such rights in favor of the Bank are expressly preserved and shall be deemed
unaffected, valid and subsisting rights notwithstanding the execution and
delivery of this Agreement.
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O. WHEREAS, the Bank and the Company have concluded that the execution by
them of this Agreement is in their respective best interests, and acknowledge
that the terms and provisions hereof are fair and reasonable, that each has had
the benefit of legal counsel and each is receiving a substantial and valuable
benefit if the transactions contemplated herein are consummated.
NOW, THEREFORE, for and in consideration of the promises set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and for the performance of the mutual covenants
hereinafter to be performed, IT IS AGREED as follows:
1. Recitals. The recitals hereinbefore set forth constitute an integral
part of this Agreement, evidencing the intent of the parties in executing this
Agreement and describing the circumstances surrounding its execution.
Accordingly, said recitals are, by express reference, made a part of this
Agreement, and this Agreement shall be construed in the light thereof.
2. Obligations and Deliveries of The Company. To induce the Bank to
consent to this Agreement, the Company, with the intent and understanding that
the Bank is expressly relying thereon, agrees to fully perform all of the
following obligations and to make the following deliveries:
(a) Payment Obligations.
(i) Payments Under The Loan Documents - During the Forbearance
Period, the Company shall timely remit all payments of principal and interest
required under the Loan Documents;
(ii) Additional Monthly Payments - Subject to paragraph 2(a)(iii)
below, the Company shall remit additional monthly payments to the Bank in the
amount of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) (the
"Additional Monthly Payments"). The Additional Monthly Payments shall be applied
first, to the principal balance under the September Note and second, to the
principal balance under the October Note. The Company shall make the Additional
Monthly Payments on or before the fifteenth day of each month, commencing on
July 15, 2001 and continuing through and including December 15, 2002, or until
the Company Obligations are satisfied in full; and
(iii) Reduction of Additional Monthly Payments - If, at any time, the
Company Obligations, other than the obligations under the LCS, are paid in full,
the Additional Monthly Payments shall be reduced to Seventy-Five Thousand and
00/100 Dollars ($75,000.00) (the
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"Reduced Additional Monthly Payments"). In such event, the Reduced Additional
Monthly Payments shall be held by the Bank as cash collateral to secure the
obligations under the LCS. The Reduced Additional Monthly Payments shall be
further reduced on a dollar for dollar basis by the amount that the aggregate
obligations under the LCS are reduced during the period the LCS remain
outstanding (the obligations described in subparagraphs 2(a)(i), 2(a)(ii) and
2(a)(iii) shall collectively be referred to as the "Continuing Payment
Obligations").
(b) Reports - Simultaneous with the execution of this Agreement and
throughout the Forbearance Period, the Company shall provide to the Bank with:
(i) a monthly report of all sales and collections; (ii) monthly cash flow
projections; (iii) a certificate signed by a duly authorized representative of
the Company, on a bi-weekly basis, setting forth: (A) the amount of all cash
balances in accounts held at the Bank; plus (B) an amount equal to eighty
percent (80%) of all "Eligible Accounts," as that term is defined in Section 4.1
of the Loan Agreement, the terms of which are expressly incorporated herein by
reference (collectively, the "Collateral Base Certificate"), provided however,
the provisions of paragraph 4.1 with respect to the Bank's right to reduce the
percentage of unpaid invoice amounts to total invoice amounts shall not apply
during the Forbearance Period ((A) and (B) are hereinafter collectively referred
to as the "Collateral Base Assets"); and (iv) a monthly line-item budget,
setting forth the anticipated expenditures during the Forbearance Period.
Notwithstanding the foregoing, the Company and the Bank agree that from the date
hereof to and including the receipt by the Company of the "Initial Landmark
Contribution" (as below defined) but in no event after July 31, 2001, the
Collateral Base Certificate may also include as "Eligible Accounts" those
accounts for which services have been rendered but not yet invoiced, subject to
reconciliation in the ordinary course of business between the Company and its
customers (the "Additional Eligible Accounts"), provided, however, in the event
any such services not invoiced are subject to a dispute by the customer or other
third parties, then in such event, the Company agrees that such services shall
be excluded as Additional Eligible Accounts immediately upon the Company
receiving any notice of a dispute. The Company shall provide a separate report
on a bi-weekly basis setting forth the Additional Eligible Accounts. The Company
expressly acknowledges that from and after the earlier of August 1, 2001 or the
date the Company receives the Initial Landmark Contribution, the Additional
Eligible Accounts shall no longer be included in the Collateral Base Certificate
as part of the Collateral Base Assets. (The Collateral Base Certificate which
the Company delivered to the Bank on or about June 12, 2001, shall hereinafter
be referred to as the "Initial Collateral Base Certificate").
(c) Deposits - During the Forbearance Period, the Company shall deposit
all of its receipts and all other funds of the Company of any kind or nature
shall be deposited and held in one or more accounts at the Bank, provided the
foregoing obligation shall not apply to the existing Certificate of Deposit in
the amount of Seventy-Five Thousand Nine Hundred Thirty and 10/100 Dollars
($75,930.10) held at Midwest Guaranty Bank;
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(d) Compliance With Loan Documents - The Company agrees to fully comply
with those terms and conditions of the Loan Documents identified in Paragraph
4(k) of this Agreement and the Continuing Payment Obligations;
(e) Reaffirmation and Restatement of Loan Documents, Bank Collateral and
Additional Bank Collateral - Upon request of the Bank, the Company shall execute
and/or deliver any and all documents reasonably requested by the Bank consistent
with terms of this Agreement: (A) to restate and reaffirm the Loan Documents and
the Company Obligations; and (B) to document and perfect the security interests
of the Bank in and to Bank Collateral and the Additional Bank Collateral;
(f) Access - The Company shall provide the Bank and its agents with
unlimited access upon forty-eight (48) hour prior notice, during normal business
hours, to any and all books and records (including all outstanding contracts
with account debtors) of the Company for purposes of enabling the Bank to review
and inspect such books and records, any of which the Bank shall be entitled to
copy at its expense. The Company and its agents and employees shall fully
cooperate in the production of such books and records and in the production and
preparation of such additional financial information as the Bank shall
reasonably request;
(g) Landmark Infusion - The Company shall immediately, and from time to
time hereafter, forward to the Bank all documents relating to the Landmark
Infusion. This undertaking shall specifically include the obligation to deliver
to the Bank, on or before June 15, 2001, a fully executed term sheet for the
Landmark Infusion.
(h) Grant of Lien in Additional Bank Collateral and Amendment to Loan
Agreement - Paragraph 3.1 of the Loan Agreement is hereby amended to provide as
follows:
To secure the prompt payment to Bank of Borrower's Liabilities and the
prompt, full and faithful performance by Borrower of all of the provisions to be
kept, observed or performed by Borrower under this Agreement and/or the Other
Agreements, Borrower grants to Bank a security interest in and to, and
collaterally assigns to Bank, all of Borrower's property, real or personal,
tangible or intangible, wherever located, whether now or hereafter existing,
owned, licensed, leased (to the extent of Borrower's leasehold interest
therein), consigned (to the extent of Borrower's ownership therein), arising
and/or acquired, including, without limitation, all of Borrower's:
(i) all accounts and accounts receivable including, without
limitation, accounts as defined the UCC, credit card receivables,
notes, drafts acceptances, any and all now existing or hereafter
arising rights to payment or amounts due Borrower in the form of
obligations or receivables from whatever source for services
rendered for products sold or leased, or credit extended, whether
or not such rights have been earned by performance (individually,
and collectively referred to as "Accounts");
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(ii) all chattel paper including, without limitation, electronic
chattel paper and tangible chattel paper, supporting obligations,
tax refunds, tax refund claims, contract rights, leases,
leasehold interests, rents, revenues, letters of credit,
instruments, documents, documents of title, letter of credit
rights, promissory notes, notes secured by real estate, and
beneficial interests;
(iii)all general intangibles, including without limitation: choses
in action, software, payment intangibles, health care insurance
receivables, causes of action, corporate or other business
records, contract rights to payment under a contract not yet
earned by performance and not yet evidenced by an instrument or
chattel paper, warranty claims, rights and claims against
carriers and shippers, rights to indemnification and the like,
proceeds of insurance covering the lives of key employees on
which Borrower is beneficiary, all licenses, permits, agreements
of any kind or nature pursuant to which Borrower possesses, uses,
or has authority to possess or use, property (whether tangible or
intangible) of others or others possess, use, or have authority
to possess or use which are property (whether tangible or
intangible) of Borrower, and any letter of credit, guaranty,
security interest, lien rights or other security held by or
granted to Borrower to secure payment by a party who is obligated
on or under an Account, and all other intangible personal
property of Borrower of every kind and nature (other than
Accounts) now owned or hereafter acquired;
(iv) all general and commercial tort claims, including, without
limitation, the general and commercial tort claims described on
Schedule 1 attached hereto;
(v) all intellectual property of Borrower, including without
limitation the intellectual property described on Schedule 2
attached hereto and further including all inventions,
developmental ideas, designs, concepts, proprietary processes,
diagrams, plans, reports, charts, catalogs, manuals, technical
data, patents, patent applications, patents pending, service
marks, trademarks, trademark applications, trade names, trade
styles, trade secrets, goodwill, royalties, registrations,
related computer software programs and applications (including
the source and object codes therefore), computer records, rights
of access to computer service bureaus, service bureau contracts,
computer data, tapes, disks, semi-conductors, chips, and
printouts, copyrights, mask work rights and interests, user,
technical, reference, and other manuals and materials, product
formulas, blueprints, drawings, engineering drawings, copyrights,
copyright applications licenses, franchises and customer lists
and to the extent not described above, all general intangible
property of the Borrower in the nature of intellectual property;
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(vi) all goods whose sale, lease or other disposition by Borrower
have given rise to Accounts and have been returned to or
repossessed or stopped in transit by Borrower;
(vii) all investment property of Borrower, including, without
limitation, certificated and uncertificated securities,
securities accounts, commodities accounts, commodities
contracts, security certificate and securities entitlements;
(viii) all goods, including without limitation all consumer goods,
inventory (as further described below), machinery, equipment,
and any and all accessions, parts and appurtenances thereto
whether presently owned or hereafter acquired by Borrower and
further including, without limitation, vehicles, fixtures,
trade fixtures, as-extracted collateral, and farm products;
(ix) all of Borrower's now owned and hereafter acquired, and
wheresoever located inventory, including without limitation,
any and all raw materials, work in process, finished goods and
materials and supplies of any kind, nature or description which
are used or consumed in Borrower's business or are or might be
used in connection with the manufacture, packing, shipping,
advertising, selling or finishing of such goods, merchandise
and other personal property and other personal property
furnished under any contract of service or intended for sale or
lease, and all documents of title or documents representing the
same;
(x) all liens, guaranties and other remedies, rights and privileges
pertaining to any of the Collateral (as that term is used in
the Loan Agreement);
(xi) all monies, reserves, deposits, deposit accounts and interest
or dividends thereon, cash or cash equivalents;
(xii) all automobiles, trucks, trailers and other vehicles;
(xiii) all stocks and interests in incorporated and unincorporated
businesses, interests in partnerships and joint ventures;
(xiv) all property now or at any time or times hereafter in the
possession, or under the control of Bank or its bailee;
(xv) all customer lists, tax refunds and abatements, goodwill, and
compensating balances;
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(xvi) all personal property of Borrower;
(xvii) all accessions to the foregoing, and all substitutions,
renewals, improvements and replacements of and additions to
the foregoing;
(xviii) all insurance claims and proceeds, refunds, and premium
rebates, including without limitation, proceeds of fire and
credit insurance, whether any of such proceeds, refunds, and
premium rebates arise out of any of the foregoing (i)-(xvii);
(xix) all books, records, information, and computer records in any
way relating to the Collateral (as that term is defined in the
Loan Agreement), and all property in which such books,
records, and information are stored, recorded, and maintained;
(xx) all products and proceeds of the foregoing including, without
limitation, litigation proceeds and proceeds of insurance
policies insuring the Collateral (as that term is defined in
the Loan Agreement); and
(xxi) to the extent not otherwise described above, all collateral as
defined and/or described in the Loan and Security Agreement
executed between Landmark and the Company in connection with
the Landmark Infusion.
The terms used in the Amendment to identify the Additional Bank Collateral
shall also include and encompass without limitation the same meanings as are
assigned to such terms under Article Nine of the Illinois Commercial Code
presently in effect and as thereafter revised by Public Act 87-1047 upon its
enactment, provided, however, for purposes of the balance of the provisions of
the Loan Agreement, the definition of Accounts in Paragraph 1.1A of the Loan
Agreement shall apply. The Company expressly acknowledges that it intends to
herein grant to the Bank a first lien and security interest in all of its assets
and properties and to exclude nothing hereunder, and that the foregoing
description of Additional Bank Collateral and the definitions contained herein
or incorporated by reference hereunder shall be read and construed in the
broadest possible sense, and that it shall execute such additional documents and
take such additional action as may be necessary should the Bank determine in its
discretion that the language hereunder, including the granting language, should
be expanded, clarified or otherwise amended for the purpose of insuring that all
assets and properties of the Company, whether now or hereafter existing, are
included within its scope, and any and all additional security interests, liens,
encumbrances or claims which may hereafter be granted by the Company shall be
deemed to be Additional Bank Collateral. The security interests granted and
described herein, shall continue to attach to the Additional Bank Collateral
notwithstanding any sale, exchange or disposition of the Additional Bank
Collateral or any part thereof by the Borrower.
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(i) Acknowledgment With Respect To Landmark - The Company acknowledges and
agrees that it will not accept any funds from Landmark or grant any liens,
interests, claims or encumbrances to Landmark, prior to the execution and
delivery by the Bank and Landmark of the "Landmark Intercreditor Agreement" (as
below defined). The Company acknowledges and agrees that this obligation shall
apply to any third parties who elect to invest and/or advance funds to the
Company as part of the Landmark Infusion.
3. Bank's Obligations.
(a) Forbearance Against The Company:
(i) Conditions of Forbearance. Conditioned upon and subject to: (i)
the execution of this Agreement by all parties hereto; and (ii) the execution
and delivery by Landmark of an Intercreditor (Subordination) Agreement in the
form attached hereto as Exhibit A (the "Landmark Intercreditor Agreement"), the
Bank agrees to forbear under the Terms of Forbearance as set forth below against
the Company during the Forbearance Period. Thereafter, any further forbearance
against the Company shall be in the Bank's sole and exclusive discretion and
nothing herein contained shall be deemed as a commitment or obligation on the
Bank's part to forbear beyond the end of the Forbearance Period; and
(ii) Terms of Forbearance. The Bank agrees that, during the
Forbearance Period, and only during such time, as provided in this Agreement, it
shall forbear and refrain from exercising any of its rights and remedies against
the Company under the Loan Documents (including with respect to any funds
delivered to the Company as a result of the Landmark Infusion) and/or from
seeking to recover the Company Obligations.
(b) LCS:
(i) Xxxxxxx XX - The Bank agrees to renew the Xxxxxxx XX through
December 31, 2002, pursuant to the terms thereof;
(ii) Michigan Trust LC 1 - The Bank agrees to renew the Michigan Trust
LC 1 through and including December 30, 2002, pursuant to the terms thereof;
(iii) Michigan Trust LC 2 - The Bank agrees to renew the Michigan
Trust LC 2 through and including December 31, 2002, pursuant to the terms
thereof and further agrees to modify the step-down amounts and periods as
follows: July 1, 2001 through April 30, 2002 - $703,171.00; and May 1, 2002
through December 31, 2002 - $527,378.00;
(iv) Park LC - The Bank agrees to renew the Park LC through and
including December 31, 2002, pursuant to the terms thereof;
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(v) New Michigan Trust LC - The Bank agrees that it will issue an
additional letter of credit in favor of the Michigan Trust under terms and
conditions acceptable to the Bank, which shall expire on December 31, 2002, in
the amount of up to Two Hundred Thirty Seven Thousand and 00/100 Dollars
($237,000.00) (the "New Michigan Trust LC"). Prior to the issuance of the New
Michigan Trust LC, the Company shall be obligated to deliver to the Bank cash
collateral from sources other than the Bank Collateral or the Additional Bank
Collateral in the face amount of the New Michigan Trust LC, which shall be held
by the Bank to secure the New Michigan Trust LC (the "New Michigan Trust XX Xxxx
Collateral"). The New Michigan Trust XX Xxxx Collateral shall be treated as cash
for purposes of the Collateral Base Certificate; and
(vi) Acknowledgment by the Company - The Company acknowledges that
notwithstanding the terms of any of the LCS, the Bank shall have no obligation
to extend the expiration dates beyond December 31, 2002. The Company further
acknowledges that unless the beneficiaries under the LCS agree to the execution
of an amendment to the respective LCS, in form and substance acceptable to the
Bank, which acknowledges the December 31, 2002 expiration date, the Bank shall
be entitled to give a notice of nonrenewal as provided in the LCS, which notice
shall be given no earlier than within fifteen (15) days prior to the
commencement of the applicable notice period, and/or to allow the LCS to expire
or be drawn upon in accordance with their respective terms prior to December 31,
2002. Should the LCS or any of them be drawn under this provision or otherwise,
the Company shall be obligated to remit to the Bank within seven (7) business
days thereafter, a sum which is equal to the amount drawn (the "LC Reimbursement
Obligation").
(c) Absence of Further Advances: The Bank and the Company agree that,
notwithstanding the definition of Company Obligations herein, from and after the
date of this Agreement, unless otherwise agreed by the Company, the Bank and
Landmark (for so long as the Landmark Intercreditor Agreement remains in
effect), the Bank shall not advance funds nor shall it be required to advance
funds to the Company. The Company acknowledges and agrees that the restrictions
in this paragraph shall not apply to the accrual of interest upon the Company
Obligations, or the incurrence of reasonable attorneys' fees, costs or expenses
under or in connection with the Loan Documents, this Agreement, the Landmark
Intercreditor Agreement, the Bank Collateral, the Additional Bank Collateral or
the Company Obligations, all of which may be advanced by the Bank and added to
the Company Obligations.
(d) Termination of Forbearance: The Bank's obligation to forbear as
provided under Paragraph 3(a)(ii) above, shall terminate on the earlier of: (1)
the expiration of the Forbearance Period; or (2) the occurrence of a
"Forbearance Termination Event" as hereinafter defined in Section 4 of this
Agreement.
4. Forbearance Termination Events. Upon the occurrence of any of the
events listed below, the Company shall be in default hereunder and should the
Company fail to cure such default in the manner and within the applicable period
set forth below, the Forbearance Period
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shall terminate and the Bank shall be immediately entitled to exercise any and
all rights under the Loan Documents and hereunder, and to recover the Company
Obligations:
(a) The Company fails to remit a payment required under the Continuing
Payment Obligations and does not cure such failure to pay within five (5)
business days after the Company and Landmark receive written notice from the
Bank (the "Monetary Cure Period"), provided, however, that should the Company
default in any of the Continuing Payment Obligations for three (3) consecutive
months, neither the requirement of notice nor the Monetary Cure Period shall not
apply to any subsequent defaults in payment;
(b) The Company fails to comply with any of the terms and provisions
contained in this Agreement, including the provisions of the Loan Documents
enumerated in Paragraph 4(k), and does not cure such failure to comply within
fourteen (14) days after the Company and Landmark receive written notice from
the Bank;
(c) There is a bankruptcy, receivership, reorganization or other insolvency
proceeding instituted by the Company;
(d) There is a bankruptcy, reorganization or other insolvency proceeding
instituted against the Company, which is not dismissed within sixty (60)
calendar days from the date of filing, provided however, nothing contained
herein shall preclude the Bank from participating as a creditor in such
proceeding to the fullest extent permitted by applicable law;
(e) There is a receiver appointed for the Company or a material portion of
any or all of the assets of the Company, and such appointment is not stayed or
reversed within sixty (60) calendar days of the entry of the applicable court
order;
(f) A material portion of the assets of the Company are seized, attached,
subjected to a writ or lien of any kind or nature, or levied upon by any third
parties, which seizure, attachment, writ, lien, or levy is not released within
thirty (30) days thereafter;
(g) There is litigation commenced against the Company involving a material
portion of the assets of the Company and the Company fails to file a responsive
pleading which asserts a good faith defense within the applicable time limits
prescribed therein as may be extended by order of court or agreement of the
parties, or fails to have the proceeding dismissed within that time or otherwise
fails to defend such action in good faith, or notwithstanding the assertion of a
good faith defense, there is a judgment entered in such proceeding;
13
(h) The entry of a monetary judgment against the Company in an amount in
excess of One Hundred Thousand and 00/100 Dollars ($100,000.00), which is not
stayed, dismissed or released prior to the time in which a stay may be obtained
within the applicable time limits prescribed in the pending action, so long as
there has not been any action commenced to enforce the judgment;
(i) In the event Landmark seeks to foreclose, liquidate its interest in,
take possession of (without the consent of the Bank), or otherwise enforce its
rights against the "Landmark Collateral," as defined in the Landmark
Intercreditor Agreement, or Landmark initiates an action to obtain a monetary
judgment with respect to the Landmark Indebtedness, or Landmark otherwise
violates its obligations to the Bank under the Landmark Intercreditor Agreement
with respect to the Bank Collateral, the Additional Bank Collateral or the
obligation to remit cash received from the Company as provided therein;
(j) The Company has not received from Landmark, in good and sufficient
funds, in the form of loans or equity infusions, an amount not less than Ten
Million and 00/100 Dollars ($10,000,000.00) in the aggregate, less related costs
and expenses, which for purposes of this paragraph 4(i) and paragraph 4(n)
below, shall not exceed Two Million and 00/100 Dollars ($2,000,000.00) in the
aggregate (the "Net Cost Maximum"), within ten (10) business days following
approval of the Landmark Infusion by the shareholders of the Company, and in no
event later than December 31, 2001;
(k) The Company fails to comply with any of the following provisions of the
Loan Agreement, as the same may be amended by this Agreement: 3.4; 3.6; 3.10;
4.1; 4.2; 4.4; 5.1, provided the Bank acknowledges that the current insurance of
the Company is in compliance with this provision; 5.2; 6.2 (excluding the
"Landmark Indebtedness" and the "Landmark Collateral" as defined in and governed
by the terms of the Landmark Intercreditor Agreement); 6.3, provided a "going
concern" qualification in the accountants' report shall not constitute a default
hereunder; and 8.13, and does not cure such failure to comply within fourteen
(14) days after Landmark and the Company receive written notice from the Bank;
(l) (i) The Collateral Base Certificate submitted to the Bank on or around
June 30, 2001, reflects that the aggregate amount of the Collateral Base Assets
has decreased in an amount greater than twelve percent (12%) of the amount of
the Collateral Base Assets set forth in the Initial Collateral Base Certificate
(an "Initial Certificate Default"). In such event, the Company or Landmark shall
have five (5) business days following receipt by the Company and Landmark of
notice from the Bank (the "Initial Certificate Cure Period") to restore the
Collateral Base Assets to an amount equal to or greater than the amount of the
Collateral Base Assets reflected in the Initial Collateral Base Certificate (the
"Initial Cure Amount") (such restoration may be effected in the same manner as
the "cure" in paragraph 4(m)(i) below).
(ii) The June 30, 2001 certificate test under subsection (i) of this
paragraph 4(l) shall be the sole test with respect to the Collateral Base Assets
until the receipt by the Company of the Initial Landmark Contribution, at which
time the provisions of paragraph 4(m) shall apply.
(m) (i) The aggregate amount of the Collateral Base Assets, as set forth
under the Collateral Base Certificate, is less than the aggregate amount of the
Company Obligations then
14
outstanding (the "Certificate Shortfall") and the Company or Landmark fails to
cure the Collateral Shortfall within forty-five (45) days after the Company and
Landmark receive written notice from the Bank of such Collateral Base
Certificate Default (the "Certificate Cure Period"). If the Certificate
Shortfall occurs as a result of acts or expenditures by the Company outside of
the ordinary course of its business, the Certificate Cure Period shall be
modified in the manner below provided. Without limiting the scope or generality
of the term "ordinary course of business" the Company expressly acknowledges
that the following acts or expenditures shall be deemed outside the ordinary
course of business: (A) the acquisition by the Company of all or any portion of
the assets or stock of any third party exceeding One Million and 00/100 Dollars
($1,000,000.00) in the aggregate in any calendar year; or (B) any capital
expenditures by the Company which in any calendar quarter exceed Seven Hundred
Fifty Thousand and 00/100 ($750,000.00). In the event of an occurrence of a
Certificate Shortfall as a result of acts or expenditures of the Company outside
the ordinary course of business, the Company or Landmark shall have five (5)
business days to cure such default after the Company and Landmark receive
written notice from the Bank. For purposes of paragraphs 4(l) and 4(m), the term
"cure" shall consist of: (A) the reduction of the Company Obligations; (B) the
increase in "Eligible Accounts;" (C) the deposit of cash into accounts at the
Bank, in an amount sufficient to eliminate the Certificate Shortfall; or (D) the
submission of a "Shortfall Guaranty" (defined below). For purposes of this
paragraph 4(m), each "Standby Landmark Obligation" (defined below) shall be
included in the Collateral Base Assets, except in the event Landmark fails to
timely remit the "Landmark Shortfall Payment" (as below defined).
(ii) Landmark shall have the additional right but not the obligation
to cure the Initial Certificate Default and/or any or all of the Certificate
Shortfalls by submitting to the Bank, prior to the expiration of the applicable
Certificate Cure Period, a continuing unconditional guaranty, in the Bank's
usual and customary form (conformed to be consistent with the terms of this
Agreement and the Landmark Intercreditor Agreement), in the amount of the
Initial Cure Amount or, where a Certificate Shortfall has occurred, in the
amount of the Certificate Shortfall reflected in the most recent Collateral Base
Certificate submitted to the Bank prior to Landmark's delivery of the guaranty
(the "Shortfall Guaranty"). The Bank will not make a demand or claim under, or
otherwise commence an action to enforce, a Shortfall Guaranty unless within one
hundred twenty (120) days of the delivery of the Shortfall Guaranty: (A)
Landmark fails to replace such Shortfall Guaranty with an irrevocable letter of
credit of like amount in form and substance reasonably acceptable to the Bank,
which shall be renewed from time to time (the "Landmark LC Obligation"); or (B)
Landmark fails to remit to the Bank the Initial Cure Amount or the Certificate
Shortfall (the "Landmark Shortfall Payment") as the case may be. In the event
the Bank does not receive the Landmark LC Obligation or the Landmark Shortfall
Payment, and provided there is an Initial Certificate Default or a Certificate
Shortfall then outstanding, the Bank's obligation to forbear under this
Agreement shall terminate immediately. If after the issuance of a Shortfall
Guaranty and/or a Landmark LC Obligation, the Company submits three consecutive
Collateral Base Certificates which do not reflect the existence of a Certificate
Shortfall (excluding solely for purposes of this sentence all Standby Landmark
Obligations), the Bank shall cancel and return all Shortfall Guaranties and
Landmark LC Obligations (collectively, the "Standby Landmark Obligations") then
outstanding. No Landmark LC Obligation shall be drawn unless the Bank's
obligation to forbear under this Agreement terminates and the Company
Obligations are not satisfied within one hundred twenty days (120) following
such termination,
15
provided, however, the Bank shall be entitled to draw upon the Landmark LC
Obligations prior to their expiration if not timely renewed.
(iii) The provisions of this paragraph 4(m) shall not apply unless and
until the Company receives the Initial Landmark Contribution.
(n) The failure of the Company to deliver to the Bank, a fully executed
Landmark Intercreditor Agreement on or before the date of this Agreement;
(o) The failure of the Company and Landmark to execute and deliver all
documents necessary to memorialize and set forth the terms of the Landmark
Infusion by August 31, 2001 (the "Landmark Infusion Documents");
(p) The Company has not yet received from Landmark good and sufficient
funds in an amount not less than Five Million and 00/100 Dollars ($5,000,000.00)
in the aggregate, less related costs and expenses, subject to the Net Cost
Maximum, at the time the Landmark Infusion Documents are executed but, in no
event later than July 31, 2001 (the "Initial Landmark Contribution"); and
(q) The failure of the Company to timely remit the LC Reimbursement
Obligation within five (5) business days after the Company and Landmark receive
written notice from the Bank.
(collectively, the "Forbearance Termination Event(s)").
5. Negative Pledge Agreement. The Company agrees that other than in the
ordinary course of business, it shall not cause or permit title to any of the
Bank Collateral or the Additional Bank Collateral to be sold, transferred,
conveyed, exchanged or otherwise disposed of, without having first obtained the
prior written consent of the Bank, which shall be given or withheld in the
Bank's sole and absolute discretion.
6. Acknowledgment, Estoppel and Release. The Company absolutely,
unconditionally, irrevocably and unequivocally covenants, acknowledges and
agrees with the knowledge that the Bank is expressly relying thereon as an
express and material inducement to the forbearance agreed to herein as follows:
(a) Upon the expiration of the Forbearance Period, the Bank shall have the
unconditional and absolute right to recover the unsatisfied portion of the
Company Obligations in full, which obligations shall be immediately due and
payable, and to enforce all rights and remedies under the Loan Documents, or
this Agreement, in law or in equity;
(b) The terms of the Loan Documents, including, but not limited to, the
Company Obligations, and the validity and first priority of the liens and
security interests in and to the Bank Collateral and the Additional Bank
Collateral are hereby affirmed and ratified by the Company, and it is
acknowledged and agreed that the same are in full force and effect and are
unconditionally binding and enforceable against the Company in accordance with
their respective terms;
16
(c) The Company does not possess any claims, defenses, offsets, recoupments
or counterclaims of any kind or nature against the enforcement or validity of
any of the Loan Documents, this Agreement or the Company Obligations
(collectively, the "Claims"), nor does the Company now have knowledge of any
facts that would give rise to any such Claims. In the event there now exists
facts that would give rise to any Claims against or with respect to the
enforcement of the Loan Documents, this Agreement or the Company Obligations,
the Company hereby absolutely, unconditionally, irrevocably and unequivocally
waives and fully releases any and all such Claims to the same extent as if such
Claims were the subject of a lawsuit, adjudicated to a conclusion in favor of
the Bank and dismissed therein with prejudice;
(d) The Bank has a first and superior, valid, perfected and enforceable
security interest, upon and against all of the Bank Collateral and the
Additional Bank Collateral and there are no security interests, liens, claims or
encumbrances against the Bank Collateral or the Additional Bank Collateral,
except with respect to the possible liens and security interests of Midwest
Guaranty Bank in and to certain equipment of the Company, and with respect to
the security interests and liens to be granted to Landmark pursuant to the
Landmark Infusion, subject to the Landmark Intercreditor Agreement;
(e) Through and including June 8, 2001, there is due and owing under the
October Note the principal amount of One Million One Hundred Eighty Six Thousand
Two Hundred Eighty Two and 00/100 Dollars ($1,186,282.00), plus interest which
continues to accrue on a daily basis at the rates and in the manner set forth in
the October Note, and any and all other expenses, charges, costs and fees
incurred or to be incurred by the Bank in connection with this Agreement and/or
the Loan Documents, and which amount is further in addition to the contingent
balances under the LCS in the aggregate amount of One Million Seven Hundred
Forty Six Thousand Six Hundred Sixty Six and 25/100 Dollars ($1,746,666.25) (not
including any balances resulting from the issuance of the New Michigan Trust
LC), and to any overdrafts which may be currently outstanding as of the date of
this Agreement;
(f) Through and including June 8, 2001, there is due and owing under the
September Note the principal amount of One Million Eight Hundred Sixty Nine
Thousand Four Hundred Seventy Nine and 13/100 Dollars ($1,869,479.13), plus
interest which continues to accrue on a daily basis at the rates and in the
manner set forth in the September Note, and any and all other expenses, charges,
costs and fees incurred or to be incurred by the Bank in connection with this
Agreement and/or the Loan Documents, and which amount is further in addition to
any overdrafts which may be currently outstanding as of the date of this
Agreement;
(g) There is no obligation of the Bank of any kind or nature: (i) to
provide any financial accommodations to the Company, other than as specifically
provided herein; or (ii) to forbear in any manner whatsoever, upon the
expiration of the Forbearance Period;
(h) The Company, for itself and its predecessors, successors and assigns,
and each of them, (the "Releasors"), does hereby absolutely, unconditionally,
irrevocably and unequivocally remise, release and forever discharge the Bank,
Banc One, N.A., Banc One Investment Advisors Corporation, and Bank One Trust
Company, N.A., and their respective predecessors, successors
17
and assigns, and its officers, directors, shareholders, employees, attorneys,
agents, representatives, predecessors, affiliates and each of their respective
successors and assigns (collectively, "Releasees"), from and against all manners
of action, causes of action, suits, debts, accounts, promises, warranties,
damages and consequential damages, demands, agreements, bonds, bills,
specialties, covenants, controversies, variances, trespasses, judgments,
executions, costs, expenses or claims whatsoever, in law or in equity, whether
presently known to Releasors or whether not known, including, but not limited
to, all claims arising out of, under, or relating to the Loan Documents, this
Agreement, the Bank Collateral or the Additional Bank Collateral (collectively,
the "Released Claims"), which Releasors, or any of them, now have or ever had,
or can, shall or may have against Releasees, upon or by reason of any manner,
cause or thing whatsoever on or at any time prior to the date of these presents,
it being the intention of each of the Releasors to reserve nothing whatsoever
hereunder with respect to Releasees and to assure Releasees their peace and
freedom from all Released Claims; and
(i) The invalidity or unenforceability of any provision in this Agreement
or in one or more of the Loan Documents shall in no way affect the validity or
enforceability of any other provision.
7. Representations and Warranties. The Company represents and warrants
with the intent that the Bank is expressly relying thereof as follows:
(a) The Company is a Michigan corporation duly organized and existing in
good standing under the laws of the state of Michigan and as a foreign
corporation not in good standing under the laws of the state of Illinois and has
full power and organizational authority to enter into this Agreement and to
consummate the transactions contemplated herein. All necessary governance action
has been taken in order to authorize the execution, delivery and performance of
this Agreement; and
(b) The execution, delivery and performance of this Agreement does not, and
shall not violate any provision of any applicable law, regulation, judgment,
order, partnership agreement, operating agreement, trust agreement, or by-laws,
as the case may be, or any other agreement or instrument by which the Company or
its properties are bound.
8. Payment of Costs. The Company agrees to pay within ten (10) days after
demand:
(a) all reasonable attorneys' fees incurred by the Bank in connection with
the negotiation and documentation of this Agreement, and all other reasonable,
out-of-pocket expenses, charges, costs and fees referred to in, necessitated by
or otherwise relating to this Agreement (collectively, the "Costs"), all of
which Costs shall be considered to be part of the Company Obligations; and
(b) All reasonable attorney's fees, costs and expenses as provided in the
Loan Documents, which shall specifically include all appraisal fees charged to
the Bank by Dovetail Bid.
9. Binding Effect. Upon the execution and delivery of this Agreement by
all parties hereto, the terms of this Agreement shall be binding upon and inure
to the benefit of the parties
18
hereto and their respective successors or assigns, and to Landmark, which is an
intended third party beneficiary hereof.
10. Governing Law. This Agreement shall be deemed to have been made in the
City of Chicago, State of Illinois, and shall be governed and controlled by the
laws of the State of Illinois as to interpretation, enforcement, validity,
construction, effect, and in all other respects, but without regard to internal
choice of law provisions of the State of Illinois. The Company hereby
absolutely, unconditionally, irrevocably and unequivocally agrees that, subject
to the Bank's sole and absolute election, all actions or proceedings in any way,
manner or respect, arising out of or from this Agreement, the Loan Documents,
the Bank Collateral or the Additional Collateral, shall be litigated only in
courts having situs within the City of Chicago, Illinois, and the Company hereby
consents and submits to the jurisdiction of any local, state or federal court
located within said city.
11. Survival of Representations and Warranties. The representations,
warranties and covenants contained herein shall survive the execution and
delivery hereof and shall remain in full force and effect until a claim based
thereon is barred by applicable statutes of limitation.
12. Future Deliveries, Undertakings and Acknowledgments. The Company
agrees to take such further action and to execute such additional documents as
the Bank may now or hereafter reasonably require to effectuate the terms and
conditions of this Agreement and the undertakings of the Company hereunder. The
Bank acknowledges that upon the irrevocable satisfaction in full of the Company
Obligations, it shall have no further rights to enforce the terms and provisions
of the Loan Documents or this Agreement.
13. Entire Agreement. This Agreement taken together with the Loan
Documents, constitutes the entire agreement between the parties relating to the
subject matter hereof and is the final and complete expression of their intent.
No prior or contemporaneous negotiations, promises, agreements, covenants,
representations of any kind or nature, whether made orally or in writing, have
been made by the parties, or any of them, in negotiations leading to this
Agreement or relating to the subject matter hereof, which are not expressly
contained herein, or which have not become merged and finally integrated herein;
it being the intention of the parties hereto that in the event of any subsequent
litigation, controversy, or dispute concerning the terms and provisions of this
Agreement, no party shall be permitted to offer to introduce oral or extrinsic
evidence concerning the terms and conditions hereof that are not included or
referred to herein and not reflected in writing. This Agreement may be changed,
modified or amended only by a writing executed by the parties hereto. No
conditions of any kind or nature exist to the legal effectiveness hereof, which
shall be in full force and effect immediately upon execution and delivery by all
parties hereto.
14. Loan Documents Unaffected. Subject to the Bank's obligation to forbear
and except as expressly set forth herein: (a) the Loan Documents shall remain in
full force and effect in accordance with their respective terms; and (b) nothing
contained in this Agreement shall: (i) modify or alter any of the terms or
provisions in the Loan Documents in any manner whatsoever; (ii) cure, waive,
release or postpone any defaults now or hereafter existing under the Loan
Documents; (iii) establish a custom between any of the parties hereto; (iv) in
any way waive, limit, or condition the rights of remedies of Bank under the Loan
Documents; or (v) cause the
19
Bank to be or be deemed in control of the Company, its operations or properties,
or to be acting as a "responsible person" with respect to the operation and
management of the Company, or its properties.
15. Strict Compliance. The failure of the Bank to insist upon strict
compliance with any of the terms, covenants, or conditions of one or more of the
Loan Documents or this Agreement, shall not be deemed a waiver of such term,
covenant, or condition, nor shall any waiver or relinquishment of any right or
power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any time or times.
16. Counterparts. This Agreement may be executed in one or more
counterparts all of which taken together constitute one and the same instrument.
17. Contract Review. All parties hereto agree that this Agreement has been
thoroughly reviewed by counsel of their respective choice and, in the event of
an ambiguity or conflict in the terms hereof, there shall be no presumption
against the Bank as the drafter hereof.
18. Captions. The captions incorporated herein are for convenience only,
and do not in any way limit, amplify, or affect the terms or conditions hereof.
19. Severability. The invalidity or enforceability of any provision in
this Agreement or in one or more of the Loan Documents shall in no way affect
the validity or enforceability of any other provision.
20. Notice. Except as otherwise provided and limited in this Agreement,
any notice required to be given pursuant to this Agreement shall be given by
personal delivery, deposit in the United States Mail, postage prepaid, certified
or registered mail, overnight mail or via telecommunication to the following
parties:
If to the Company:
XxxxXxxxxxx.xxx Inc.
000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Fax No. (000) 000-0000
20
with a copy to:
Xxxxx Sugar, Esq.
Xxxxx X. Xxxxxxxx, Esq.
Jaffe, Raitt, Heuer & Xxxxx, P.C.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax No. (000) 000-0000
If to the Bank:
Xx. Xxxxxxx X. Xxxxx
First Vice-President
American National Bank
and Trust Company of Chicago
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxxx, XX 00000
Fax No. (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
Adelman, Gettleman, Xxxxxx,
Xxxxxx & Xxxxxx, Ltd.
00 X. Xxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx, XX 00000
Fax No. (000) 000-0000
If to Landmark:
Xxx X. Xxxxxxxx, III, Esquire
Executive Vice President and General Counsel
Landmark Communications, Inc.
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax No. (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxx, P.C.
0000 Xxxx xx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax No. (000) 000-0000
Any such notice shall be deemed validly served upon actual delivery thereof
or upon acknowledgment or proof of receipt or upon the issuance of a
confirmation of transmittal by the telecommunication device utilized by the
sender, including by facsimile.
21
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the day and year written above.
AMERICAN NATIONAL BANK AND XXXXXXXXXXX.XXX INC., a Michigan
TRUST COMPANY OF CHICAGO, a corporation
national banking association
By______________________________ By______________________________
Its___________________________ Its___________________________
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