1
BANKBOSTON, N.A.
NBD BANK
dated of July 31, 1998
Connectivity Products Incorporated
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Re: Forbearance Agreement and Tenth Amendment
-----------------------------------------
Ladies and Gentlemen:
Reference is hereby made to the Amended and Restated Revolving Credit
and Term Loan Agreement, dated as of May 31, 1996 by and among (a) Connectivity
Products Incorporated, a Delaware corporation (the "COMPANY"), (b) the financial
institutions listed on SCHEDULE I thereto (the "BANKS"), and (c) BankBoston,
N.A., a national banking association in its capacity as Administrative Agent and
Documentation Agent for the Banks (as amended and in effect from time to time,
the "CREDIT AGREEMENT"), and the various notes, guaranties and security
documents delivered in connection therewith (collectively, the "LOAN
DOCUMENTS").
The Company acknowledges that prior to July 31, 1998 the Company was in
default of the requirement set forth in the Credit Agreement that the
Overadvance Amount, as such term is used in the definition of BORROWING BASE, be
reduced to $0.00 effective as of July 10, 1998. In addition, as of May 22, 1998,
the Company is also in default of its obligation to deliver its financial
statements for the first fiscal quarter of 1998 and the fiscal year 1998
projections pursuant to ss.9.4(j) and (k) of the Credit Agreement, respectively
and the representation and warranty made pursuant to ss.8.4 of the Credit
Agreement with respect to the financial statements delivered to the Banks prior
to the delivery of the audited financial statements for fiscal year 1997
prepared by Ernst & Young. These Events of Default are hereinafter referred to
as the "SPECIFIED DEFAULTS", and the Company acknowledges and agrees that the
Co-Agents and the Banks have not waived any of the Specified Defaults. The
Company also acknowledges and agrees that all of the Company's obligations,
liabilities and indebtedness to the Banks and the Co-Agents under the Credit
Agreement may at any time be declared due and payable in full by reason of the
Specified Defaults, that the Banks have no further commitment to extend credit
to the Company and the Banks and the Co-Agents are entitled to accelerate the
Bank Obligations and to proceed to enforce any and all of their respective
rights and remedies under the terms of the Loan Documents. The Company has now
requested that the Banks and the Co-Agents extend the Revolving Credit Loan
Maturity Date and forbear from exercising their rights and remedies under the
Loan Documents until the Forbearance Termination Date (as hereinafter defined)
under the following terms and conditions:
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SS.1. DEFINITIONS. All capitalized terms used herein without
definition that are defined in the Credit Agreement, as amended and in effect on
the date hereof, shall have the same meanings herein as therein. All accounting
terms used herein and not otherwise defined shall be used in accordance with
generally accepted accounting principles. For the purposes of this Agreement,
"BANK OBLIGATIONS" shall mean all indebtedness, obligations and liabilities of
the Company and its Subsidiaries to any of the Banks and the Co-Agents existing
on the date of this Agreement or arising thereafter, direct or indirect, joint
or several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, including without limitation, those arising or incurred under any of
the Loan Documents or under any other instruments, documents or agreements at
any time evidencing such indebtedness, obligations or liabilities.
SS.2. RATIFICATION OF EXISTING AGREEMENTS. The Company hereby
ratifies and confirms in all respects all of the Bank Obligations, except as
otherwise expressly modified in this Agreement upon the terms set forth herein.
In addition, by execution of this Agreement, the Company represents and warrants
that, to the best of its knowledge, as of the date hereof, no claim or
counterclaim, right of set-off or defense of any kind exists or is outstanding
with respect to the Bank Obligations. The Company further agrees that, to the
extent any such claim, counterclaim, right of setoff or defense of any kind to
its knowledge exists, the Company hereby waives and releases each and all of
them in consideration for the Co-Agents and the Banks entering into this
Agreement. The Company acknowledges that, in entering into this Agreement, the
Banks have relied on the representations, warranties and waivers contained in
this ss.2. As of July 31, 1998, the Company agrees that the outstanding
aggregate principal amount of the Revolving Credit Loans plus the aggregate
Maximum Drawing Amount of the Letters of Credit outstanding under the Credit
Agreement is equal to $18,225,372.92.
SS.3. REPRESENTATIONS AND WARRANTIES. The Company has adequate
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement has been duly authorized,
executed and delivered by the Company and does not contravene any law, rule or
regulation applicable to the Company or any of the terms of the Company's
charter documents, by-laws or other governing document or any indenture,
agreement or undertaking to which the Company is a party. The obligations of the
Company under this Agreement and the Loan Documents constitute its legal, valid
and binding obligations enforceable against it in accordance with their
respective terms. All of the representations and warranties made by or on behalf
of the Company in the Loan Documents are true and correct on the date hereof as
if made on and as of the date hereof, except for those matters previously
disclosed in writing to the Banks or disclosed herein.
SS.4. FORBEARANCE OBLIGATIONS. Subject to the conditions set forth
in ss.5 hereof, the Banks agree to forbear from enforcing any of their rights
and remedies under the Loan Documents (except with respect to the Anicom, Inc.
stock, which the Company agrees is to be sold and the proceeds applied as
provided in ss.6(j) hereof) for the purpose of seeking payment of any of the
Bank Obligations (including, without limitation, any act with respect to any
collateral now or hereafter securing payment any Bank Obligations or any setoff
or any other application of funds of the Company now or hereafter on deposit
with or otherwise controlled by any of the Banks until that date (the
"FORBEARANCE TERMINATION DATE") which is the earliest to occur of (a) the
Company's failure to comply with any of the terms and conditions of this
Agreement, including any of the undertakings set forth in ss.ss.5 and 6, (b) an
Event of Default (other than the Specified Defaults) under any of the Loan
Documents, (c) if the Company or any person or entity claiming by or through the
Company ever commences, joins in, assists, cooperates or participates as an
adverse party or adverse witness in any suit or other proceeding against the
Banks relating to the indebtedness referred to as the Bank Obligations or any
amounts owing hereunder, (d) any of the claims of the Banks under this Agreement
or with respect to the Bank Obligations shall be
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subordinated to the claims of any other creditor of the Company, (e) the Company
shall make a general assignment for the benefit of creditors, or admit in
writing its inability to pay or generally fail to pay its debts as they mature
or become due, or shall petition or apply for the appointment of a trustee or
other custodian, liquidator or receiver of the Company or of any substantial
part of the assets of such Company or shall commence any case or other
proceeding relating to the Company under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect, or shall take any
action to authorize or in furtherance of any of the foregoing, or if any such
petition or application shall be filed or any such case or other proceeding
shall be commenced against the Company and the Company shall indicate its
approval thereof, consent thereto or acquiescence therein, (f) a decree or order
is entered appointing any such trustee, custodian, liquidator or receiver or
adjudicating the Company bankrupt or insolvent, or approving a petition in any
such case or other proceeding, or thirty days after a decree or order for relief
is entered in respect of the Company in an involuntary case under federal
bankruptcy laws as now or hereafter constituted, (g) more than ten percent (10%)
by Dollar amount of the Company's trade creditors reduce to less than thirty
(30) days the number of days which the Company has to pay its accounts payable,
and (h) November 30, 1998. The period from the effective date of this Agreement
through the Forbearance Termination Date is referred to herein as the "Limited
Forbearance Period". Except as expressly provided above in this ss.4, the Banks
reserve the right to exercise all of their rights and remedies under the Loan
Documents. The Company agrees to refrain from making payments on their
Subordinated Debt prior to the Forbearance Termination Date and in any event, to
the extent the relevant Subordination Agreements so provide, during the
continuance of any Event of Default (including any Specified Defaults) under the
Credit Agreement. Upon the Forbearance Termination Date, the Banks and the Agent
shall be free in their sole and absolute discretion to proceed to enforce any or
all of their rights and remedies under or in respect of the Loan Documents and
applicable law, including without limitation, those credit termination,
acceleration, enforcement and other rights and remedies arising by virtue of the
occurrence of the Specified Defaults. All of the Company's payment and
performance obligations to the Banks hereunder, including without limitation,
the obligations set forth in ss.ss.5 and 6 below, shall survive the Forbearance
Termination Date, and all of such obligations shall be secured by the collateral
security granted under the Loan Documents.
SS.5. CONDITIONS TO EFFECTIVENESS. This Agreement shall become
effective upon satisfaction of the following conditions on or prior to September
1, 1998:
(a) The Banks, the Co-Agents and the Company shall have
executed and delivered counterparts of this Agreement to the
Administrative Agent;
(b) The Companies shall have paid, in cash, (i) a
forbearance fee (the "Forbearance Fee") to the Administrative Agent for
the benefit of the Banks in an amount equal to $50,000 and (ii) the
remaining installment of the restructuring fee in the amount of $30,000
which was due and payable as of July 10, 1998;
(c) The Administrative Agent shall have received a
certificate executed by the Company certifying that no Defaults or
Events of Default currently exist under the Credit Agreement, other
than the Specified Defaults;
(d) The Company and Anicom, Inc. and the Administrative
Agent shall have entered into a letter agreement with Xxxxxx Trust and
Savings Bank as Trustee under the Escrow Agreement, in form and
substance satisfactory to the Banks, pursuant to which not less than
171,202 of the Shares (as defined in the Escrow Agreement) shall have
been transferred to or at
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the direction of the Administrative Agent and satisfactory provisions
shall have been made with respect to the remaining 19,274 Shares; and
(e) The Company shall have paid all fees and expenses
incurred by the Banks and the Agent, including but not limited to, all
legal fees and disbursements, and commercial finance examination fees,
and billed for all periods through August 24, 1998.
SS.6. COVENANTS AND AGREEMENTS. Without any prejudice or impairment
whatsoever to any of the rights and remedies of any of the Banks and the
Co-Agents contained in any of the Loan Documents or in any agreement, document
or instrument executed in connection therewith, the Company covenants and agrees
with the Co-Agents and the Banks as follows:
(a) DISCRETIONARY LENDING. During the Limited Forbearance
Period, the Banks shall continue to be under no obligation to lend to
the Company or to issue, extend or renew Letters of Credit, and as
such, the Banks shall continue to suspend the commitment fee
contemplated by ss.2.2 of the Credit Agreement, and any advances made
by the Banks to the Company and any Letters of Credit issued, extended
or renewed during the Limited Forbearance Period shall be at the sole
and absolute discretion of the Banks and any discretionary advances
made by the Banks and any obligation incurred by the Banks as a result
of the issuance, extension or renewal of any Letters of Credit shall
constitute Bank Obligations.
(b) INTEREST. The Company acknowledges and agrees that
interest shall continue to accrue at the rate specified in ss.2.5 of
the Credit Agreement (as amended by ss.7 set forth beloW); PROVided
that if an Event of Default other than a Specified Default occurs, then
interest shall accrue on all Bank Obligations outstanding under the
Loan Documents at the default rate of interest set forth in ss.6.11 of
the Credit Agreement (as amended by ss.7 set forth below), whether or
not such amount amount overdue, and shall be payable monthly in arrears
on the last day of each calendar month.
(c) COMPLIANCE WITH LOAN DOCUMENTS. The Company shall
comply and continue to comply will all of the terms, covenants and
provisions contained in the Loan Documents to and any other instruments
evidencing or creating any of the Bank Obligations except as such
terms, covenants and provisions are expressly modified in this ss.6
or ss.7.
(d) COLLATERAL. The Companies shall provide to the
Administrative Agent such additional security agreements and other
security documents as the Administrative Agent may request in order to
obtain, perfect and preserve a prior perfected security interest
(subject only to Permitted Liens) in all existing and after-acquired
personal property and fixtures of the Company for the benefit of the
Banks and the Co-Agents.
(e) CASH FLOW PROJECTIONS. The Company shall deliver to
the Administrative Agent no later than September 1, 1998 updated weekly
cash flow projections for the period commencing on October 1, 1998 and
ending on November 30, 1998 based upon and in the form of EXHIBIT A
attached hereto. All such projections shall include, among other
things, detailed weekly collections and disbursements, calculation of
availability under the Credit Agreement, anticipated borrowings and a
rolling Overadvance calculation.
(f) SALE OF COMPANY OR ANY PORTION THEREOF. The Company
shall deliver to the Agent (i) by not later than Monday of each
calendar week, satisfactory in form and substance to
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the Administrative Agent, a written status report as of the end of the
prior calendar week as to any offers to purchase all or a part of the
Company or its businesses and (ii) promptly upon receipt of the same,
copies of all letters of intent, purchase and sale agreements or other
material documentation evidencing an intention or offer to purchase all
or a part of the Company or its businesses.
(g) CHARTER DOCUMENTS. The Administrative Agent shall
have received by not later than September 1, 1998 an officers
certificate from the Company certifying that there have been no changes
to the charter documents of the Company and certified copies of
corporate resolutions and other evidence of corporate authority
requested by the Administrative Agent from the Company authorizing the
execution of this Agreement and all transactions contemplated herein;
(h) LEGAL OPINION. The Agent shall have received by not
later than September 1, 1998 a favorable written opinion, addressed to
the Banks and the Co-Agents, dated the date hereof, from Xxxxx and
Xxxxxxxx, PC, counsel to the Company in form and substance satisfactory
to the Administrative Agent;
(i) CONSULTANT. The Company will on or prior to October
1, 1998 engage a business consultant pursuant to an engagement letter
containing a scope of assignment and work plan, all of which shall be
satisfactory to each of the Banks which consultant shall commence
performance under such engagement letter on October 15, 1998; PROVIDED,
HOWEVER, the Company shall not be required to commence performance
under such engagement if (i) no Event of Default (other than a
Specified Default) exists at any time and (ii) on or prior to the
October 15, 1998 the Company shall have entered into a purchase and
sale agreement for the sale of, or a binding commitment to purchase,
the assets and business, and the assumption of selected liabilities, of
its Energy Electric Assembly division ("EEA") on substantiality the
terms outlined in the letter of intent dated July 31, 1998, a copy of
which letter has been provided to each of the Banks (the "Proposed
Sale");
(j) ANICOM STOCK PROCEEDS. All proceeds from the sale of the
shares of the common stock of Anicom, Inc., delivered to the
Administrative Agent pursuant to the Escrow Agreement (as amended or
modified and in effect) shall be applied to the outstanding amount of
interest on and principal of the Revolving Credit Loans or, at the
option of the Banks, up to $202,381.16 of which may be paid to Anicom,
Inc. solely to obtain the release to the Administrative Agent of the
remaining stock of Anicom, Inc. held by the Escrow Agent pursuant to
the Escrow Agreement. To the extent that (i) the Overadvance Amount is
repaid from such proceeds the Overadvance Amount shall be permanently
reduced Dollar for Dollar and (ii) the principal amount of such
Revolving Credit Loans are repaid from such proceeds the Revolving
Credit Commitment shall be permanently reduced Dollar for Dollar;
(k) YEAR 2000. Upon the request of the Agent or any Bank,
the Company will provide a description of its program to address Year
2000 Issues, including updates and progress reports. The Company will
advise the Banks of any reasonable anticipated material adverse effect
on its business, operations or financial condition as a result of Year
2000 Issues. "Year 2000 Issues" means anticipated costs, problems and
uncertainties associated with the inability of certain computer
applications to effectively handle data including dates on or after
January 1, 2000, as such inability affects the business, operations,
and financial condition of the Company and of the Company's material
customers, suppliers and vendors; and
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(l) ASSIGNMENTS. The Company agrees that the conditions
to assignment contained in clauses (i), (ii) and (iii) of Section 20.1
are hereby waived and that clause (v) of the definition of "Eligible
Assignee" is amended by deleting the words "if, but only if, any Event
of Default has occurred and is continuing,."
(m) FURTHER ASSURANCES. The Company shall at any time or
from time to time execute and deliver such further instruments, and
take such further action as the Administrative Agent or any Bank may
reasonably request, in each case further to effect the purposes of this
Agreement, the Loan Documents and all documents, agreements and
instruments executed in connection therewith.
SS.7. AMENDMENT TO CREDIT AGREEMENT. The Credit Agreement is hereby
amended as follows:
(a) Section 1.1 of the Credit Agreement is amended as
follows:
(i) the definition of APPLICABLE MARGIN set forth in
such ss.1.1 is amended by deleting such definition and
restating it in its entirety as follows:
APPLICABLE MARGIN. The Applicable Margin for all
Revolving Credit Loans or with respect to the
commitment fees are as set forth in the table below:
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Revolving
Credit Loans Commitment Fee
-----------------------------------------------------
2.00% .50%
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(ii) The following definitions as set forth in such
ss.1.1 are amended by deleting such definitions and restating
them in their entirety as follows:
INTEREST PAYMENT DATE. The last day of each calendar
month including the calendar month which includes the
Drawdown Date.
INTEREST PERIOD. Initially, the period commencing on
the Drawdown Date of each Revolving Credit Loan and
ending on the last day of the calendar month in which
the Drawdown Date occurs and thereafter, each
calendar month.
OVERADVANCE AMOUNT. As defined in ss.11.8.
(iii) The definition of "Revolving Credit Loan
Maturity Date" as set forth in such ss.1.1 is hereby amended
to be "November 30, 1998" and the Company agrees that
notwithstanding any other provision of the Loan Documents, all
Bank Obligations shall become due and payable on such date if
they have not previously become due and payable.
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(iv) The definition of "Administrative Agent's Head
Office" as set forth in ss.1.1 is hereby changed to be 000
Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, and clauses (c) and (d) of
Section 21 are changed to have notices go to 000 Xxxxxxx
Xxxxxx, Xxxxxx, XX 00000, Attention: X. Xxxxxxxx Vannah, Vice
President, Mail Stop 01-06-01.
(v) The definition of "Obligations" as set forth in
such ss.1.1 is hereby amended by adding the following clause
to the end thereof "and any other indebtedness, obligations or
liabilities of the Borrower or any of its Subsidiaries to any
of the Banks"
(b) Section 6.11 of the Credit Agreement is amended by
deleting such ss.6.11 and restating it in its entirety as follows:
INTEREST AFTER DEFAULT. During the continuance of a Default or
Event of Default (other than a Specified Default as defined in
the Forbearance Agreement, dated as of July 31, 1998) the
principal of the Loans (whether or not overdue) and interest
on the Loans (to the extent permitted by applicable law)
shall, until such Default or Event of Default has been cured
or remedied or such Default or Event of Default has been
waived by the Banks, bear interest at a rate per annum equal
to four percent (4%) above the rate of interest otherwise
applicable to such Loans set forth in this Agreement.
(c) Clause (c) of ss.9.4 of the Credit Agreement is
amended by inserting the following text immediately after the text
"subsections (a) and (b) above,": and on Tuesday of each calendar week
as of the end of the immediately preceding calendar week.
(d) Clause (e) of ss.9.4 of the Credit Agreement is
amended by (i) deleting the text "fifteen (15) days after the end of
each calendar month" and substituting the text "on Tuesday of each
calendar week" therefor and (ii) deleting the text "as at the end of
such calendar month" and substituting the text "as at the end of the
immediately preceding calendar week" therefor.
(e) Section 9.4 of the Credit Agreement is further
amended by (i) deleting the word "and" at the end of clause (j) of
such ss.9.4, (ii) deleting the period at the end of clause (k) of
such ss.9.4 and substituting a semicolon therefor, and (iii) adding the
following new clause (l):
(l) on Tuesday of each calendar week weekly cash flow
variance reports (actual, by line item, as compared to budget, by line
item) as at the end of the immediately preceding calendar week
(f) Section 9.9.2 of the Credit Agreement is amended by
deleting such ss.9.9.2 and restating it in its entirety as follows:
COMMERCIAL FINANCE EXAMS. As frequently as the Administrative
Agent shall determine, either Co-Agent may conduct a
commercial finance exam which exam shall INTER alia, indicate
whether or not the information set forth in the Borrowing Base
Report most recently delivered is accurate and complete in all
material respect based upon a review of the Accounts
Receivable (including verification with respect to the amount,
aging,
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identity and credit of the respective account debtors and the
billing practices of the Borrower or its applicable
Subsidiary) and inventory (including verification as to the
value, location and respective types). In addition to the
foregoing, prior to inclusion in the Borrowing Base of any
assets acquired by the Borrower or any of its Subsidiaries
after the Closing Date, the Banks shall be permitted to
conduct a commercial finance exam with respect to such assets
to determine their eligibility. All such exams and reports
shall be conducted and made at the expense of the Borrower and
may include examination of all books, records and financial
information determined to be relevant by either of the Banks.
(g) Section 10.3 of the Credit Agreement is amended by
deleting paragraphs (a), (c), (d), (e), (f), (g), (h) and (i) thereof
and the provision at the end of Section 10.3 and amending paragraph (b)
to read as follows:
(b) demand deposits and time deposits at one of the
Banks and the investment in Anicom, Inc. stock made
prior to July 31, 1998.
(h) Section 10.4 of the Credit Agreement is amended by
deleting such ss.10.4 and restated in its entirety as follows:
10.4 RESTRICTED PAYMENTS. The Borrower will not make any
Restricted Payments.
(i) Section 11.6 of the Credit Agreement is amended by
deleting such ss.11.6 and restating it in its entirety as follows:
11.6 CAPITAL EXPENDITURES. The Borrower will not make, or
permit any Subsidiary of the Borrower to make, Capital
Expenditures which exceed $35,000 in the aggregate during any
calendar month; PROVIDED, HOWEVER, that if during any calendar
month the amount of Capital Expenditures permitted for that
calendar month is not so utilized, such unutilized amount may
be utilized in the next succeeding calendar month, but in no
event shall the aggregate amount of all Capital Expenditures
made during the months of August through November, 1998 exceed
$140,000.
(j) Section 11.7 of the Credit Agreement is amended by
deleting such ss.11.7 and restating it in its entirety as follows:
11.7 MINIMUM EBITDA. The Borrower will not permit Consolidated
EBITDA at the end of any calendar month to be less than
$225,000, which amount may be revised by the Banks upon the
sale of the EEA Division of the Borrower.
(k) Section 11 of the Credit Agreement is further amended
by adding the following new ss.11.8:
11.8 MAXIMUM OVERADVANCE. The Borrower will not permit the
Overadvance Amount as at the end of any calendar week set
forth in the table below to exceed the amount set forth
opposite such week (such specified amount being deemed to be
the "Overadvance Amount" during such period):
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Overadvance
Calendar Week Ended Amount
---------------------------------------------------------------------
08/07/98 $7,483,000
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08/14/98 $7,668,000
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08/21/98 $7,868,000
---------------------------------------------------------------------
08/28/98 $7,603,000
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09/04/98 $7,723,000
---------------------------------------------------------------------
09/11/98 $7,723,000
---------------------------------------------------------------------
09/18/98 $7,723,000
---------------------------------------------------------------------
09/25/98 $7,723,000
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10/02/98 and to be based on cash flow
thereafter flow projections to be
delivered to the Administrative
Agent no later than 09/01/98
pursuant to ss.6(e) in
form substance satisfactory
to the Administrative Agent, but in
any event no more than $6,900,000
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To the extent that the Overadvance Amount is repaid from the proceeds
from the sale of the shares of the common stock of Anicom, Inc., delivered to
the Administrative Agent pursuant to the Escrow Agreement (as amended or
modified and in effect), the Overadvance Amount set forth opposite each date in
the table above shall be permanently reduced Dollar for Dollar.
SS.8. EXPENSES. The Company agrees to pay to the Banks and the
Co-Agents (a) on demand by the Banks or the Co-Agents, an amount equal to any
and all reasonable out-of-pocket costs or expenses (including reasonable legal
fees and disbursements of counsel to the Banks and the Co-Agents, including fees
and expenses of in-house counsel to the Banks and the Co-Agents, consulting,
accounting, appraisal, investment banking and similar professional fees and
charges) incurred or sustained by any of the Banks or the Co-Agents in
connection with the negotiation and preparation of this Agreement and all
related matters and (b) from time to time any and all reasonable out-of-pocket
costs, expenses (including reasonable legal fees and disbursements (including
fees and disbursements of in-house counsel), consulting, accounting, appraisal,
investment banking and similar professional fees and charges) hereafter incurred
or sustained by any of the Banks or the Co-Agents in connection with the
administration of credit extended by the Banks to the Company or the
preservation of or enforcement of their rights under the Loan Documents or in
respect of the Company's other obligations to them.
SS.9. AMENDMENTS. This Agreement shall not be amended without the
written consent of the Banks.
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SS.10. NO WAIVER. Except as otherwise expressly provided for in this
Agreement, nothing in this Agreement shall extend to or affect in any way the
Company's obligations or any of the rights and remedies of the Banks and the
Co-Agents in respect of the Credit Agreement arising on account of the
occurrence of any Event of Default other than the Specified Defaults, all of
which are expressly preserved.
SS.11. NO CLAIMS WITH RESPECT TO THIS AGREEMENT. The Company
acknowledges and agrees that: (a) to the best of their knowledge, the Company
has no claim or cause of action against any of the Banks or the Co-Agents (or
any of their directors, officers, employees or agents); (b) to the best of their
knowledge, the Company has no offset right, counterclaim or defense of any kind
against any of their obligations, indebtedness or liabilities to the Banks or
the Co-Agents; and (c) the Banks and the Co-Agents have heretofore properly
performed and satisfied in a timely manner all of their respective obligations
to the Company. The Banks and the Co-Agents wish (and the Company agrees) to
eliminate any possibility that any past conditions, acts, omissions, events,
circumstances or matters would impair or otherwise adversely affect any of the
rights, interests, contracts, collateral security or remedies of the Banks.
Therefore, the Company unconditionally releases, waives and forever discharges
(i) any and all liabilities, obligations, duties, promises or indebtedness of
any kind of any of the Banks and the Co-Agents to the Company, except the
obligations to be performed by the Banks and the Co-Agents for the Company as
set forth in this Agreement and as expressly stated in the Loan Documents and
(ii) all claims, offsets, causes of action, suits or defenses of any kind
whatsoever (if any), whether against any Bank or the Co-Agents or any of its
directors, officers, employees or agents with respect to the obligations to be
performed by the Banks and the Co-Agents for the Company as set forth in the
Loan Documents, in either case (i) or (ii), on account of any condition, act,
omission, event, contract, liability, obligation, indebtedness, claim, cause of
action, defense, circumstance or matter of any kind whatsoever which existed,
arose or occurred at any time prior to the date hereof or which could thereafter
arise as the result of the execution of (or the satisfaction of any condition
precedent or subsequent to) this Agreement; PROVIDED, HOWEVER, that the Company
shall not be deemed to have waived any rights or claims arising from the gross
negligence or willful misconduct of the Banks and the Co-Agents.
SS.12. REPRESENTATIONS AND WARRANTIES. The Company hereby repeats, on
and as of the date hereof, each of the representations and warranties made by it
in ss.8 of the Credit Agreement (other than ss.ss.8.4 (but only for the period
prior to the delivery of the audited financial statements for fiscal year 1997
prepared by Ernst & Young), 8.5 and 8.11 (but solely with respect to the
Specified Defaults)), PROVIDED, that all references therein to the Credit
Agreement shall refer to such Credit Agreement amended hereby.
SS.13. WAIVER OF JURY TRIAL. THE COMPANY HEREBY WAIVES ANY RIGHTS
THAT IT MAY HAVE TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT
OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE LOAN DOCUMENTS,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH
RIGHTS AND OBLIGATIONS. Except as prohibited by law, the Company hereby waives
any right that it may have to claim or recover in any litigation referred to in
the preceding sentence any special, exemplary, punitive or consequential damages
or any damages other than, or in addition to, actual damages; PROVIDED, HOWEVER,
that the Company shall not be deemed to have waived any claim the Company may
have to recover such damages for claims which arise from the gross negligence or
willful misconduct of the Banks and the Co-Agents, or the willful breach by the
Banks of the Co-Agents of any of the Loan Documents. The Company hereby (a)
certifies that no representative, agent or attorney of any Bank or the Co-Agents
has represented, expressly or otherwise, that such Bank or the Co-Agents would
not, in the event of litigation, seek to enforce the foregoing
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waivers and (b) acknowledges that it has been induced to enter into this
Agreement by, among other things, the waivers and certifications herein.
SS.14. MISCELLANEOUS. This Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of Massachusetts and
shall take effect as a sealed instrument under such laws. Any and all notices or
other communications required hereunder shall be in writing and shall be
delivered as required by the Credit Agreement.
SS.15. COUNTERPARTs. This letter agreement may be executed in any
number of counterparts, but all such counterparts shall together constitute but
one instrument. In making proof of this letter agreement it shall not be
necessary to produce or account for more than one counterpart signed by each
party hereto by and against which enforcement hereof is sought.
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If you are in agreement with the foregoing, please sign and return the
enclosed copy of this letter agreement to the Administrative Agent.
CONNECTIVITY PRODUCTS INCORPORATED
By:
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Title:
BANKBOSTON, N.A., individually and as
Administrative Agent and Documentation Agent
By:
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Title:
NBD BANK
By:
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Title:
