Exhibit 10(ix)
LOAN MODIFICATION, REAFFIRMATION AND
FORBEARANCE AGREEMENT
This Loan Modification, Reaffirmation and Forbearance Agreement
("AGREEMENT") is made as of March 11, 2002, by and among Bontex, Inc., a
Virginia corporation having its principal place of business at Xxx Xxxxxx Xxxxx,
Xxxxx Xxxxx, XX 00000 ( "BORROWER) and Congress Financial Corporation, a
Delaware corporation ("LENDER").
BACKGROUND
A. THE FACILITIES
1. Borrower and Lender entered into a certain Loan and Security
Agreement dated January 26, 2000 (together with all amendments, modifications,
addenda and supplements, the "Loan Agreement") and related documents, evidencing
certain financing arrangements between Lender and Borrower as more particularly
described therein. Borrower and Lender entered into an Amendment to Loan and
Security Agreement on November 13, 2000, a Second Amendment to Loan and Security
Agreement on September 12, 2001, a Third Amendment to Loan and Security
Agreement on January 22, 2002 and a Fourth Amendment to Loan and Security
Agreement on February 26, 2002.
2. All agreements and documents described or referred to in this
Section A, as amended, this Agreement, as amended, all "Financing Agreements"
(as that term is defined in the Loan Agreement) and all instruments, documents,
and agreements related thereto or executed in connection therewith, are sometime
referred to herein collectively as the "EXISTING LOAN DOCUMENTS." All
capitalized Terms used herein and not defined herein shall have the meaning
ascribed to such Term in the Existing Loan Documents.
B. EXISTING DEFAULT
1. As of the date hereof, Borrower is and remains in default under the
terms and conditions of the Existing Loan Documents by its failure to repay all
Obligations on the maturity date thereof which coincides with the date of this
Agreement ("EXISTING DEFAULT").
2. Notwithstanding such Existing Default, Borrower has requested that
Lender agree, in consideration of the undertakings and obligations of Borrower
and Guarantor set forth herein, to make certain accommodations and to forbear
for a specified period from the exercise of Lender's rights and remedies under
the Existing Loan Documents. Lender has agreed to make such accommodations as
and only to the extent set forth herein, and without waiving any of Lender's
rights and remedies.
3. By reason of the Existing Default and by the scheduled maturity of
all Obligations under the Existing Loan Documents, Borrower has acknowledged
that all Obligations under the Existing Loan Documents are and continue to be
immediately due and payable and Lender has the full legal right to exercise its
rights and remedies under the Existing Loan Documents,
including, but not limited to, the right to foreclose under any mortgages or
deeds of trust, to enforce its remedies under the Uniform Commercial Code and
other applicable laws, and take possession of and sell any Collateral described
in the Existing Loan Documents.
NOW THEREFORE, with the foregoing Background deemed incorporated by
reference and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound, covenant and agree as follows:
Section 1. ACKNOWLEDGMENT OF INDEBTEDNESS, EVENTS OF DEFAULT, ETC.
1.1. Indebtedness Borrower confirms and acknowledges that as of the
close of business on March 1, 2002, it is indebted to Lender under the Loan
Documents without any deduction, defense, setoff, claim or counterclaim, of any
nature, in the aggregate principal amount of $1,548,951.72 comprised of: (a)
$965,618.27 outstanding with respect to the Revolving Loans, and (b) $583,333.45
outstanding with respect to the Term Loan, plus any accrued and unpaid interest
and all fees, costs and expenses (including attorneys' fees) incurred to date in
connection with the Existing Loan Documents.
1.2. Existing Default. Borrower represents and warrants that as of the
date hereof, no Event (s) of Default or event(s) which with the passage of time
or giving of notice or both would constitute an Event of Default are outstanding
under the Existing Loan Documents and this Agreement, other than Existing
Default.
1.3. Existing Loan Documents Except to the extent and for the period
hereby modified, Borrower hereby confirms and ratifies in all respects the
Existing Loan Documents and the Obligations outstanding thereunder, and
acknowledges that the Existing Loan Documents shall continue in full force and
effect as therein written and that no claims, counterclaims, offsets or defenses
arising out of or with respect to Borrowers Obligations under the Existing Loan
Documents. Borrower hereby confirms its existing grant to Lender of a security
interest in the Collateral. Borrower hereby confirms that all security interests
at any time granted by it to Lender continue in full force and effect and secure
and shall continue to secure the liabilities and Obligations of Borrower and any
additional advances made pursuant to this Agreement (including, without
limitation, the Obligations), so long as any such liabilities or obligations
remain outstanding and that all property subject thereto remain free and clear
of any liens or encumbrances other than (i) those in favor of Lender, and (ii)
liens expressly permitted in the Existing Loan Documents and exhibits thereto.
Section 2. FORBEARANCE
2.1 Grant of Forbearance. Subject to the terms and conditions, and
satisfaction of the EFFECTIVENESS CONDITIONS of this Agreement, during the
Forbearance Period and through the Termination Date (as defined below), Lender
shall forbear from taking any action or exercising any rights or remedies under
the Existing Loan Documents against Borrower, Borrower's property, Guarantor or
the Collateral, due solely to the Existing Default. On the Termination Date, all
forbearance with respect to the Existing Default shall cease and Lender may, in
its discretion, and apart from its rights as a result of any new Event of
Default, exercise rights and
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remedies against Borrower, Borrower's property, Guarantor and the Collateral.
The TERMINATION DATE shall be the date that is the earlier to occur of (i) the
occurrence of an Event of Default (other than the Existing Default); (ii) the
occurrence of any breach or default by Borrower or Guarantor of any covenant or
obligation under this Agreement or any Existing Loan Document; or (iii) April
10, 2002. The term "FORBEARANCE PERIOD" shall mean the period commencing the
date of the Agreement and expiring on the Termination Date.
2.2. Preservation of Rights. By agreeing to forbear from the exercise
of its rights and remedies until the Termination Date, Lender does not waive any
of the Existing Default. All Existing Default are preserved, pending fulfillment
of Borrower's Obligations under this Agreement and under the Existing Loan
Documents. The granting of the agreements of Lender hereunder shall not be
deemed a waiver of Lender's rights and remedies or constitute a course of
conduct or dealing on behalf of Lender. Subject only to the agreements of Lender
described herein, Lender specifically reserves all rights and remedies available
to it under the Existing Loan Documents, any instrument, document or agreement
related thereto or otherwise available at law or equity, and expressly reserves
its rights, without notice to Borrower or Guarantor, to take any and all actions
to preserve and protect the Collateral and to accelerate payment of all amount
outstanding under the Existing Loan Documents upon the occurrence of an Event of
Default other than the Existing Default or a breach by Borrower of this
Agreement.
2.3. Acknowledgements and Waivers. Borrower acknowledges and agrees
that Lender is specifically and reasonably relying upon the representations,
warranties, and agreements contained herein, and that this Agreement is being
executed by Borrower and delivered to Lender as an inducement to Lender to
forbear from exercising contractual remedies available to Lender under the
Existing Loan Documents. Such forbearance by Lender is expressly conditioned on
the accuracy and reliability of the representations, warranties, and agreements
of Borrower that are set forth in this Agreement. Notwithstanding the foregoing,
nothing in this Agreement shall prevent Lender from immediately, and without
further notice or right of cure (all of which are hereby waived by Borrower),
exercising its rights and remedies under the Loan Documents upon a subsequent
Default, Event of Default, or breach by Borrower of any of the terms and
conditions set forth therein, as such terms and conditions are modified and
amended in this Agreement. Borrower further waives, to the extent permitted by
law, for the Forbearance Period, any statute of limitations applicable to
Lender's interest in the Obligations.
Section 3. INTEREST RATE AND ADVANCES.
3.1 Interest. Notwithstanding any provision in the Existing Loan
Documents to the contrary, including Lender's right to charge Default Interest,
commencing the date first above mentioned all Obligations and other loans due or
to become due to Lender under the Existing Loan Documents shall bear interest at
a fluctuating rate per annum (computed on the basis of a year of 360 days and
actual days elapsed) equal to the Prime Rate plus four percent (4%).
3.2 Advances. Borrower and Lender acknowledge that the term of the
Existing Loan Documents matured on March 11, 2002, that all Obligations
thereunder are due and payable without further demand, and that, notwithstanding
the execution and performance of this Agreement by Lender, Lender has no
obligation to extend further credit or to make any further
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revolving credit advances under the Existing Loan Documents, whether
discretionary or otherwise. Notwithstanding the foregoing, Borrower agrees that
if Lender shall, in its sole discretion, extend credit, such additional credit
shall accrue interest on the unpaid principal balance thereof at the rate set
forth in Section 3.1. All such additional loans and advances, and all accrued
and unpaid interest thereon, shall constitute Obligations under the Existing
Loan Documents and this Agreement, and shall be secured by the Collateral.
Section 4. COLLATERAL
4.1. Affirmation of Existing Collateral. Borrower covenants, confirms
and agrees that as security for the repayment of the Obligations, Lender has and
shall continue to have, and is hereby granted a continuing lien on and security
interest in the Collateral, whether now owned or hereafter acquired, created or
arising, together with all proceeds, including insurance proceeds thereof.
Borrower and Guarantor acknowledge and agree that nothing herein contained shall
in any way impair Lender's rights and priority in the Collateral.
4.2 Further Assurances. Upon execution of this Agreement, and
thereafter, Borrower shall take all action requested by Lender to effectuate the
terms and intent of this Agreement and the Existing Loan Documents and in
assuring continued, effective and proper perfection of the liens and security
interests in the Collateral.
Section 5. EFFECTIVENESS CONDITIONS
5.1. Conditions. Lender's undertakings hereunder are subject to
satisfactory completion, as determined by Lender in its sole discretion, (all
documents to be in form and substance satisfactory to Lender and its counsel) of
the following conditions ("EFFECTIVENESS CONDITIONS"):
(a) Borrower's execution and delivery of this Agreement;
(b) Borrower shall have delivered to Lender a supplemental
closing fee of Five Thousand Dollars ($5,000), by certified check, wire transfer
or other immediately available funds which fee shall be fully earned and payable
as of the date hereof; and
(c) Lender shall have received a duly executed Limited
Guaranty from Xxxxx X. Xxxxxxxx ("Guarantor") in form and substance satisfactory
to Lender.
Section 6. REPRESENTATIONS AND WARRANTIES
Borrower reconfirms, warrants and represents to Lender that:
6.1. Organization and Qualification. Borrower is duly organized and is
a validly existing corporation under the laws of the state identified above,
with full power and authority to own its properties and to transact its business
as now transacted. Borrower is qualified to transact business in each
jurisdiction where the ownership of its properties or the transaction of its
business requires such qualification.
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6.2. Authorization. The execution and delivery by Borrower of this
Agreement and the performance by Borrower of the transactions herein
contemplated (i) are and will be within their respective powers, (ii) has been
authorized by all necessary corporate action, and (iii) are not and will not be
in contravention of any order of court or other agency of government, of law or
of any indenture, agreement or undertaking to which Borrower is a party or by
which the property of Borrower is bound, or be in conflict with, result in a
breach of or constitute (with due notice and/or lapse of time) a default under
any such indenture, agreement or undertaking, or result in the imposition of any
lien, charge or encumbrance of any nature on any of the properties of Borrower.
6.3 Valid, Binding and Enforceable. This Agreement and any assignment
or other instrument, document or agreement executed and delivered in connection
herewith, will be valid, binding and enforceable in accordance with their
respective terms.
6.4. Litigation. Except as set forth in Schedule 6.4 attached hereto as
a part hereof, there is no pending or threatened proceeding by or before any
court or governmental agency against or affecting Borrower which, if adversely
decided would have a material adverse effect on the business, operations or
financial condition of Borrower or on the ability of Borrower to perform its
obligations under this Agreement or the other Existing Loan Documents.
6.5. Title to Property. Borrower has good title to all property owned
by it, including all properties reflected in the most recent audited balance
sheet delivered to Lender (except as sold or otherwise disposed of in the
ordinary course of business).
6.6. Taxes. Except as set forth in Schedule 6.6 attached hereto as part
hereof, all tax returns required to be filed by Borrower have been properly
prepared, executed and filed. All taxes, assessments, fees and other
governmental charges upon Borrower or upon any of its properties, incomes, sales
or franchises which are due and payable have been paid.
6.7. Financial Accounting Practice. Borrower make and keep its
books, records and accounts which, in reasonable detail, accurately and fairly
reflect Borrower's transactions and dispositions of its assets.
6.8. Power To Carry On Business. Borrower has all requisite power
and authority to own and operate its properties and to carry on its business as
now conducted and as presently planned to be conducted.
6.9. Compliance with Laws. Borrower is not in violation of any
law, except for violations which in the aggregate do not have a material adverse
effect on its business, operations or financial condition.
Section 7. COVENANTS
7.1 Existing Covenants. Borrower covenants that on and after the
date of execution of this Agreement and until the Obligations are indefeasibly
paid and satisfied in full that, except as expressly modified hereby, Borrowers
shall continue to observe and maintain compliance
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with all covenants, representations and warranties arising in this Agreement and
the Existing Loan Documents.
7.2. Additional Covenants. Borrower hereby covenants and agrees,
in consideration for the accommodations contained herein, as follows:
(a) Borrower will provide Lender with copies of any and all
proposal letters and commitment letters for financing, including preliminary
drafts, received by Borrower immediately upon Borrower's receipt of such
documents, and of any and all responses by Borrower regarding such an agreement,
including proposed "xxxx-ups," revisions or substitutes for such an agreement
immediately upon Borrower giving such responses.
(b) Borrower shall pay or reimburse Lender for its attorneys'
fees and expenses in connection with the enforcement of Lender's rights under
the Existing Loan Documents, and the reasonable fees and expenses incurred in
the preparation, negotiation and execution of this Agreement and the documents
provided for herein or related hereto, and the same shall be included within the
Obligations.
(c) Further Assurances. Borrower hereby agrees to take all
such actions and to execute and/or deliver to Lender all such documents,
assignments, financing statements and other documents, as Lender may reasonably
require from time to time, to effectuate and implement the purposes of this
Agreement.
7.3. Special Bankruptcy Provisions. Borrower hereby agrees that
if Borrower shall:
(a) file with any bankruptcy court or be the subject of any
petition under Title 11 of the U.S. Code, as amended;
(b) be the subject of any order for relief issued under such
Title 11 of the U.S. Code, as amended;
(c) file or be the subject of any petition seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any present or future federal or state act
or law relating to bankruptcy, insolvency, or other relief for debtors;
(d) seek, consent to, or acquiesce in the appointment of any
trustee, receiver, conservator, or liquidator; or
(e) be the subject of any order, judgment, or decree entered
by any court of competent jurisdiction approving a petition filed against
Borrower for any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future federal
or state act or law relating to bankruptcy, insolvency, or relief for debtors,
that any such event shall constitute an incurable Event of Default hereunder,
the Forbearance Period shall terminate automatically, and Borrower: (i) agrees
that it will not contest, object to,
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or interpose any defense, all of which are waived, with respect to any motion by
Lender seeking relief from any automatic stay imposed by Section 362 of Title 11
of the U.S. Code, as amended, or from any other stay or suspension of remedies
imposed in any other manner with respect to the exercise of the rights and
remedies otherwise available to Lender with respect to the Collateral under the
Existing Loan Documents, and (ii) acknowledges and stipulates that Borrower
cannot provide Lender with adequate protection (as that term is defined in
Section 361 of the Bankruptcy Code) and therefore it will not use or seek
approval for continued use of, any of Lender's cash collateral (as that term is
defined in Section 363 of the Bankruptcy Code), including any of the Collateral.
The provisions of this section shall survive the termination or other expiration
of the Forbearance Period.
7.4. NET WORTH COVENANT. Section 9.14 of the Loan Agreement is
hereby amended, as of March 11, 2002, to read as follows:
"9.14. Adjusted Tangible Net Worth. Borrower (excluding, for
purposes of this covenant, foreign subsidiaries and
affiliates) shall continuously maintain Adjusted Tangible Net
Worth of not less than Four Million Nine Hundred Thousand
Dollars ($4,900,000) from February 1, 2002 through February
28, 2002 and not less than Four Million Eight Hundred Thousand
Dollars ($4,800,000) commencing March 1, 2002 and at all times
thereafter."
Section 8. DEFAULTS
8.1 Events of Default. The occurrence of one or more of the
following described events is an Event of Default:
(a) The occurrence of any Event of Default (except an Existing
Default) under the Loan Agreement, or
(b) Failure of Borrower to comply with its representations,
warranties, covenants or other undertakings under this Agreement; or
(c) Failure of Borrower to pay all Obligations upon expiration
of the Forbearance Period.
8.2. Upon such Event of Default, Lender's undertakings under this
Agreement may without notice to Borrower, immediately terminate and Lender may
immediately proceed to enforce all rights and remedies produced by the Existing
Loan Documents, and this Agreement, by contract or applicable law, without
further notice to Borrower or Guarantor.
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Section 9. MISCELLANEOUS
9.1. Counterparts. This Agreement may be executed in any number
of counterparts, each of which will constitute an original and all of which
together shall constitute one instrument. Signature by facsimile shall bind the
parties hereto.
9.2. Third-Party Rights. No rights are intended to be created
hereunder for the benefit of any third- party donee, creditor, or incidental
beneficiary.
9.3. Modifications. No modification hereof or any agreement
referred to herein shall be binding or enforceable unless in writing and signed
on behalf of the party against whom enforcement is sought.
9.4. Indemnity. Borrower hereby agrees to indemnify Lender from and
against all losses, costs, expense, demands and damages whatsoever which Lender
may suffer or incur in respect of any claims which have or may be brought by any
third party relating to this Agreement, the Existing Loan Documents or the
transactions contemplated hereby or thereby. This indemnity shall continue in
full force and effect after the Termination Date and notwithstanding the
completion of the other matters referred to in this Agreement. This
indemnification is in addition to and shall not limit any other indemnification
agreement between Borrower and Lender, and shall be included within the
Obligations.
9.5. Integrated Agreement. This Agreement shall be deemed incorporated
into and made a part of the Existing Loan Documents. Except as expressly set
forth herein, all of the terms, conditions and agreements of the Existing Loan
Documents are ratified and confirmed. The Existing Loan Documents and this
Agreement shall be construed as integrated and complementary of each other, and
as augmenting and not restricting Lender's rights, remedies and security. If,
after applying the foregoing, an inconsistency still exists, the provisions of
this Agreement shall control.
9.6. Non-Waiver. No omission or delay by Lender in exercising any right
or power under this Agreement, or the Existing Loan Documents or any related
agreement will impair such right or power or be construed to be a waiver of any
default or Event of Default or an acquiescence therein, and any single or
partial exercise of any such right or power will not preclude other or further
exercise thereof or the exercise of any other right, and no waiver will be valid
unless in writing and then only to the extent specified. Lender's rights and
remedies are cumulative and concurrent and may be pursued singly, successively
or together.
9.7. Headings. The headings of any paragraph of this Agreement
are for convenience only and shall not be used to interpret any provision of
this Agreement.
9.8 . Survival. All warranties, representations and covenants made by
Borrower herein, or in any agreement referred to herein or on any certificate,
document or other instrument delivered by them or on their behalf under this
Agreement, shall be considered to have been relied upon by Lender. All
statements in any such certificate or other instrument shall constitute
warranties and representations by Borrower hereunder. All warranties,
representations,
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indemnities and covenants made by Borrower hereunder or under any other
agreement or instrument shall be deemed continuing until the Obligations are
indefeasibly paid and satisfied in full.
9.9. Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto.
No delegation by Borrower of any duty or obligation of performance may be made
or is intended to be made to Lender. No rights are intended to be created
hereunder or under any related instruments, documents or agreements for the
benefit of any third party donee, creditor, incidental beneficiary or affiliate
of Borrower.
9.10. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York. The provisions of this
Agreement are to be deemed severable, and the invalidity or unenforceability of
any provision shall not affect or impair the remaining provisions which shall
continue in full force and effect.
9.11. Right of Setoff. In addition to all liens upon and rights of
setoff against the money, securities or other property of either Borrower given
to Lender by law, Lender shall have, with respect to Borrower's and Guarantor's
obligations to Lender whether the Existing Loan Documents or otherwise and to
the extent permitted by law, a contractual possessory security interest in and a
right of setoff against, and Borrower and Guarantor hereby assigns, conveys,
delivers, pledges and transfers to Lender all of Borrower's right, title and
interest in and to, all deposits, moneys, securities and other property of
Borrower now or hereafter in the possession of or on deposit with Lender whether
held in a general or special account or deposit, whether held jointly with
someone else, or whether held for safekeeping or otherwise. Every such security
interest and right of setoff may be exercised without demand upon or notice to
Borrower or Guarantor.
9.12. WAIVER OF JURY TRIAL. BORROWER, GUARANTOR AND LENDER EACH HEREBY
WAIVES ANY AND ALL RIGHTS ANY OF THEM MAY HAVE TO A JURY TRIAL IN CONNECTION
WITH ANY LITIGATION COMMENCED BY OR AGAINST ANY OF THE PARTIES TO THIS AGREEMENT
WITH RESPECT TO RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO UNDER THIS
AGREEMENT OR UNDER THE EXISTING LOAN DOCUMENTS.
9.13. EXCLUSIVE JURISDICTION. BORROWER, GUARANTOR AND LENDER EACH
IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE STATE OF NEW YORK AND
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, IN ANY
AND ALL ACTIONS AND PROCEEDINGS WHETHER ARISING HEREUNDER OR UNDER THE EXISTING
LOAN DOCUMENTS. EACH BORROWER IRREVOCABLY AGREES TO SERVICE OF PROCESS BY
CERTIFIED MAIL RETURN RECEIPT REQUESTED TO THE ADDRESS CURRENTLY CONTAINED IN
LENDER'S RECORDS.
9.14. RELEASE. AS A MATERIAL INDUCEMENT TO LENDER TO ENTER INTO THIS
AGREEMENT, BORROWER (I) DOES HEREBY REMISE, RELEASE, ACQUIT, SATISFY AND FOREVER
DISCHARGE LENDER AND ALL OF ITS PAST, PRESENT AND FUTURE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, ATTORNEYS, REPRESENTATIVES, PARTICIPANTS, HEIRS, SUCCESSORS
AND ASSIGNS, FROM ANY AND ALL MANNER OF DEBTS, ACCOUNTING, BONDS, WARRANTIES,
REPRESENTATIONS, COVENANTS, PROMISES, CONTRACTS,
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CONTROVERSIES, AGREEMENTS, LIABILITIES, OBLIGATIONS, EXPENSES, DAMAGES,
JUDGMENTS, EXECUTIONS, ACTIONS, CLAIMS, DEMANDS AND CAUSES OF ACTION OF ANY
NATURE WHATSOEVER, WHETHER AT LAW OR IN EQUITY, WHICH BORROWER HAS BY REASON OF
ANY MATTER, CAUSE OR THING, FROM THE BEGINNING OF THE WORLD TO AND INCLUDING THE
DATE OF THIS AGREEMENT WITH RESPECT TO ANY MATTERS, TRANSACTIONS, OCCURRENCES,
AGREEMENT, ACTIONS, OR EVENTS ARISING OUT OF, IN CONNECTION WITH OR RELATING TO
THE EXISTING LOAN DOCUMENTS; AND (II) DO 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 LENDER, OR
ANY OR ITS PAST, PRESENT OR FUTURE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
ATTORNEYS, REPRESENTATIVES, PARTICIPANTS, HEIRS, SUCCESSORS OR ASSIGNS, BY
REASON OF OR IN CONNECTION WITH ANY OF THE FOREGOING MATTERS, CLAIMS OR CAUSES
OF ACTION. BORROWER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE FORBEARANCES AND
OTHER INDULGENCES CONTAINED IN THIS AGREEMENT SHALL NOT BE CONSTRUED AS AN
ADMISSION OF WRONGDOING, LIABILITY OR CULPABILITY ON THE PART OF LENDER OR THE
EXISTENCE OF ANY CLAIMS OF BORROWER AGAINST LENDER.
9.15. Advice of Counsel. Borrower acknowledges that it has consulted
with independent legal counsel concerning this Agreement and specifically
regarding the effect and implications of Sections 7.3, 9.12, 9.13, and 9.14
above, and Borrower knowingly and voluntarily hereby waives the rights described
therein or affected thereby.
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IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement the day and year first above written.
LENDER CONGRESS FINANCIAL CORPORATION
By: s/ Xxxxx X. Xxxxxxx
BORROWER BONTEX, INC.
By: s/Xxxxxxx Xxxxxxxx
00
CONSENT OF GUARANTOR
The undersigned guarantor hereby consents to the provisions of the
foregoing Agreement and agrees that the undersigned's obligations under the
Limited Guaranty shall be unimpaired by the said Agreement and that the
undersigned has no defenses or set offs against Lender, its officers, directors,
employees, agents or attorneys, with respect to the Limited Guaranty, and that
all of the terms, conditions and covenants in the Limited Guaranty remain
unaltered and in full force and effect and are hereby ratified and confirmed.
The undersigned hereby certifies that the representations and warranties made in
the Limited Guaranty are true and correct. THE UNDERSIGNED HEREBY RATIFIES AND
CONFIRMS THE WAIVER OF JURY TRIAL PROVISION CONTAINED IN THE LIMITED GUARANTY.
WITNESS the due execution hereof as a document under seal, as of March
11, 2002, intending to be legally bound hereby.
BONTEX, INC.
s/ Xxxxx X. Xxxxxxxx C.E.O.(Seal)
Xxxxx X. Xxxxxxxx
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CORPORATE ACKNOWLEDGMENT
STATE OF VIRGINIA :
: ss
CITY OF BUENA VISTA :
On this, the 14th day of March, 2002, before me, the undersigned Notary
Public, personally appeared Xxxxxxx Xxxxxxxx, known to me (or satisfactorily
proven) and says that he is the C.F.O. of Bontex, Inc., whose name is subscribed
to the within instrument and who acknowledged that he executed the same for the
purposes therein contained.
WITNESS my hand and seal the day and year aforesaid.
s/ Xxxxx X. Xxxxx
s/Xxxxxxx Xxxxxxxx Notary Public
My Commission Expires: July 31, 2004
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SCHEDULE 6.4
LITIGATION
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SCHEDULE 6.6
TAXES
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