Exhibit 10.9
FORBEARANCE AGREEMENT
This Forbearance Agreement ("Agreement") is entered into
effective as of June 1, 2004, by and among BANK ONE, N.A., ("Lender"),
CONTINENTAL CONVEYOR & EQUIPMENT COMPANY, a Delaware Corporation ("Continental")
and XXXXXXX CONVEYOR COMPANY, a Delaware corporation ("Xxxxxxx") (Continental
and Xxxxxxx are collectively referred to the "Borrowers" and each individually
as a "Borrower").
R E C I T A L S:
A. Pursuant to the terms of that certain Assumption and
Modification Agreement by and between Borrower and Bank dated
as of March 7, 1997 ("Assumption"), the Borrowers assumed all
of the Obligations of CONTINENTAL CONVEYOR & EQUIPMENT CO.
L.P., formerly a limited partnership organized and existing
under the laws of the State of Delaware, and XXXXXXX CONVEYOR
CO. L.P., formerly a limited partnership organized and
existing under the laws of the State of Delaware
(collectively, the "Borrowers") under that certain Credit
Facility and Security Agreement by and among the Borrowers
and Bank (and/or its predecessor Bank One Cleveland, N.A.)
dated as of September 14, 1992; as amended by a certain First
Amendment to Credit Facility and Security Agreement by and
among the Borrowers and Bank executed on August 27, 1993; as
further amended by a certain Second Amendatory Agreement by
and among the Borrowers and Bank dated as of October 5, 1994;
as further amended by a certain Consolidated Amendment No. 1
to Credit Facility and Security Agreement by and among the
Borrowers and Bank dated as of July 28, 1995; as further
amended by a certain Consolidated Amendment No. 2 to Credit
Facility and Security Agreement by and among the Borrowers
and Bank dated as of December 13, 1996; as further amended
by a certain Third Amendatory Agreement to Credit Facility
and Security Agreement by and among the Borrower and Bank
dated as of March 28, 1997; as further amended by a certain
Fourth Amendatory Agreement by and among the Borrower and Bank
dated as of December, 1998; as further amended by a certain
Fifth Amendatory Agreement by and among the Borrower and Bank
dated as of April 29, 1999; as further amended by a certain
Sixth Amendatory Agreement by and among the Borrower and Bank
dated as of March 28, 2000, as modified by a letter amendment
dated as of March 25, 2002 (collectively, the "Original Credit
Agreement"); and as further amended by a certain Amended and
Restated Credit Facility and Security Agreement by and among
the Borrower and Bank dated as of July 25, 2002 (the "Restated
Credit Agreement") as further amended by a certain First
Amendment to Amended and Restated Credit Facility and Security
Agreement dated as of June 30, 2003; and as further amended
by a certain Second Amendment to Amended and Restated Credit
Facility and Security Agreement dated as of August 12, 2003
(which, together with the Original Credit Agreement and the
Restated Credit Agreement are sometimes collectively referred
to herein as the "Credit Agreement"). Capitalized terms not
otherwise defined herein shall have the meanings given to such
terms in the Credit Agreement.
B. The Borrowers' obligation to repay advances on the
Revolving Loan (as defined in the Credit Agreement) is evidenced by a certain
Amended and Restated Revolving Note (Revolving Loan), as amended by a certain
Second Amended and Restated Replacement Promissory Note, and as further amended
by the Third Amended and Restated Replacement Promissory Note (the "Restated
Revolving Note"). The Borrower's obligations to repay the Term Loan A (as
defined in the Credit Agreement) is evidenced by a certain Amended and Restated
Promissory Note (Term Loan A) (the "Restated Term Note"). To secure the
Obligations, including advances under the Restated Revolving Note and the
Restated Term Note, the Borrowers granted to Lender a security interest in
substantially all of their assets.
C. The Borrowers acknowledge that they are currently in
default of certain of the terms of the Credit Agreement, and by reason thereof,
Lender has no obligation to make additional advances under any of the Credit
Documents.
D. Under the terms of the Credit Documents, Lender is
currently entitled to exercise any right, power or remedy permitted to Lender by
law or any provision of the Credit Documents to effectuate repayment of all
amounts owing to Lender under the Credit Documents, including, without
limitation, the repossession and/or foreclosure and sale of the Collateral. The
parties agree that, as of May 27, 2004, there is due and owing from Borrowers to
Lender $11,417,318 as the outstanding principal amount of the Revolving Loan,
and $1,258,854 as the outstanding principal balance of the Term Loan A, together
with accrued but unpaid interest thereon and certain costs and expenses.
E. The Borrowers have requested that Lender forbear from
exercising its rights and remedies under the Credit Documents.
F. Lender is willing to forbear in the exercise of its
remedies under the Credit Documents upon the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the foregoing recitals (which are incorporated
herein by reference), and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Forbearance. During the Forbearance Period (as defined
below), Lender will not make demand for payment under the Restated
Revolving Note and/or Restated Term Note, or exercise any of its rights
or remedies under the Credit Documents with respect to the Designated
Defaults (as defined below). For purposes of this Agreement,
"Forbearance Period" means the period commencing on the date hereof and
ending on the earlier of: (a) June 15, 2004; (b) the occurrence of a
Default hereunder; (c) the termination of the forbearance period
pursuant to that certain Forbearance Agreement by and among Continental
Global Group, Inc. ("Continental Global"), N.E.S. Investment Co., and
CFSC Wayland Advisors, Inc., dated as of April 26, 2004 (the "Global
Forbearance Agreement"); and/or (d) either the Trustee under, or
holders of 25% or more of the Series A and Series B Notes issued by
Continental Global and administered by Norwest Bank Minnesota, Trustee
under, that certain Indenture, dated as of April 1, 1997 (the
"Indenture"), have declared the Series A and Series B Notes and/or any
Liquidated Damages (as defined in the Indenture) to be due and payable;
provided, however, that Lender's present willingness to so forbear and
to forgo the exercise of any of Lender's rights, remedies, powers
and/or privileges under the Credit Documents shall only be construed as
a limited, one-time forbearance. The Borrowers acknowledge and agree
that, notwithstanding the foregoing: (i) except as set forth herein,
Lender reserves the right to enforce each and every term of the Credit
Documents; (ii) Lender is under no duty or obligation of any kind or
any nature to grant the Borrowers any additional period of forbearance
beyond the Forbearance Period; (iii) Lender's actions in entering into
this Agreement shall not be construed as a waiver or relinquishment of,
or estoppel to assert, any of Lender's rights or remedies under any of
the Credit Documents, applicable law or in equity; and (iv) Lender's
actions in entering into this Agreement are without prejudice to
Lender's right to pursue any and all remedies under the Credit
Documents, pursuant to applicable law, or in equity available to it in
the sole discretion upon the termination (whether upon expiration
thereof, upon acceleration, or otherwise) of the Forbearance Period.
2. Short Term Extension. Lender hereby agrees to extend the
maturity date on the Restated Term Loan until July 31, 2004. Such
extension is a one time extension, and Lender shall have no obligation
whatsoever to further extend, modify or amend such Restated Term Loan.
3. Letter of Credit Limit. During the Forbearance Period,
Continental's Letter of Credit sub-limit shall be increased from
$4,000,000 to $4,250,000 and Xxxxxxx'x Letter of Credit sub-limit shall
be decreased from $500,000 to $250,000.
4. Effect and Construction of Agreement. Except as expressly
provided in this Agreement, the Credit Documents shall remain in full
force and effect in accordance with their respective terms and be
unaffected hereby. To the extent of any inconsistency, amendment or
superseding provisions, this Agreement shall govern and control. Except
as expressly provided in this Agreement, the Borrowers expressly
acknowledge that nothing in this Agreement shall be deemed to
constitute in any way a waiver, extinguishment, satisfaction, or
novation of the Obligations and/or Borrowers' existing indebtedness to
Lender. The Borrowers acknowledge that they have consulted with counsel
and with such other advisors as they have deemed necessary in
connection with the negotiation, execution and delivery of this
Agreement. This Agreement shall be construed without regard to any
presumption or rule requiring that it be construed against the party
causing this Agreement or any part hereof to be drafted.
5. The Loans. Lender hereby agrees that during the Forbearance
Period, Lender will continue to make advances under the Revolving Loan
to or for the benefit of the Borrowers, which Revolving Loan shall not
exceed the amount provided in Section 2.4 of the Credit Agreement, as
amended. During the Forbearance Period interest shall not accrue on the
Revolving Loan or the Term Loan A at the Default Rate.
6. Grant and Confirmation of Security Interests and Liens by
the Borrowers. The Borrowers hereby confirm their prior grant of a
security interest to Lender, and to the extent necessary, hereby grant
a new security interest to Lender, in all of their respective
Collateral. The Borrowers acknowledge and agree that the security
interests and liens previously and hereby granted to Lender in the
Collateral: (a) secure all amounts now or hereafter owing to Lender by
the Borrowers, including, without limitation, all loans and other
advances under the Credit Documents; (b) remain valid, first and best
liens therein, subject only to the permitted encumbrances specified in
the Credit Agreement; and (c) are not impaired by the execution and
performance of this Agreement. The Borrowers further represent and
warrant that as of the date hereof, there are no claims, set offs or
defenses to the Obligations or to Lender's exercise of any rights or
remedies available to it as a creditor in realizing upon the
Collateral. The Credit Documents and the liens and security interests
granted thereby and hereby, shall remain in full force and effect after
the consummation of the transactions contemplated herein.
7. Representations and Warranties. To induce Lender to enter
into this Agreement, each Borrower, jointly and severally, represents
and warrants to Lender as follows:
(a) As of the date of this Agreement, the Borrowers are in
default under certain provisions of the Credit Documents, including,
without limitation, the following provisions of the Credit Agreement,
and as a result of such defaults, Lender is entitled to exercise its
rights and remedies as provided by law and in the Credit Documents: (i)
Sections 8.1(O),(Q) of the Credit Agreement; (ii) Section 8.2(U) of the
Credit Agreement, and (iii) Section 11.1(D) as it pertains to the
Borrowers' Guaranty of payments due by Continental Global to its note
or bond holders, which are hereafter referred to as the "Designated
Defaults."
(b) Before execution and delivery of this Agreement by all
parties, Lender had no obligation to modify, extend or otherwise amend
the terms and conditions of any of the Credit Documents. The Borrowers
agree that Lender's execution of this Agreement does not create any
such obligations other than as expressly set forth herein.
(c) Each Borrower has full corporate power and authority to
execute, deliver, and perform its obligations under this Agreement and
has taken all corporate action required by law, its Articles or
Certificate of Incorporation, and its By-laws or Code of Regulations to
authorize the execution, delivery and performance of this Agreement.
This Agreement is the valid binding agreement of each Borrower
enforceable against each Borrower in accordance with their respective
terms.
(d) No consent or approval of any party is required in
connection with the execution and delivery of this Agreement by the
Borrowers, and the execution and delivery of this Agreement does not:
(i) contravene or result in a breach or default under any of the
Borrowers' respective Articles or Certificates of Incorporation,
By-laws or Code of Regulations, or any other agreement or instrument to
which any Borrower is a party or by which any of their respective
properties are bound, (ii) violate any law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award applicable
to any Borrower, or (iii) result in the creation or imposition of any
lien, security interest or encumbrance on any property of any Borrower,
whether now owned or hereafter acquired, other than liens in favor of
Lender.
(e) All representations and warranties contained in this
Agreement (including but not limited to the Recitals herein), in the
Credit Agreement, and in any and all of the other Credit Documents are
true and correct as of the date of this Agreement, and all such
representations and warranties shall survive the execution of this
Agreement, the termination of the Forbearance Period and the payment in
full of the Obligations. The Credit Documents represent unconditional,
absolute, valid, and enforceable obligations of the Borrowers. The
Borrowers have no claims or defenses against Lender or any other person
or entity which would or might affect: (i) the enforceability of any
provisions of the Credit Documents; or (ii) the collectability of sums
advanced by Lender. The Borrowers understand and acknowledge that
Lender is entering into this Agreement in reliance upon, and in partial
consideration for, this acknowledgment and representation, and agree
that such reliance is reasonable and appropriate.
(f) The Recitals in this Agreement are true and correct in all
respect.
8. Conditions Precedent to Effectiveness of Agreement. The
Borrowers understand that this Agreement shall not be effective and
Lender shall have no obligation to forebear exercising any rights or
remedies under the Credit Documents unless and until each of the
following conditions precedent (the "Conditions") have been satisfied
on or before the commencement of the Forbearance Period: (a) Each
Borrower shall have executed and delivered to Lender certified
resolutions of its directors authorizing the execution, delivery and
performance of this Agreement and the transactions contemplated
thereof; (b) Continental Global, N.E.S. Investment Co., and CFSC
Wayland Advisors, Inc. shall have entered into and delivered to Lender
a copy of the Global Forbearance Agreement; (c) neither the Trustee
under, nor holders of 25% or more of the Series A and Series B Notes
issued by Continental Global under the Indenture, shall have declared
the Series A and Series B Notes and/or any Liquidated Damages to be due
and payable; and (d) the Borrowers shall have paid Lender the Initial
Forbearance Payment due under Section 8and all other amounts owing
under Section 9 The parties hereby agree that in the event the
Forbearance Period commences and any Conditions have not yet been
satisfied, then until the Borrowers satisfy such Conditions, the
Borrowers shall be deemed to be in Default hereunder and Lender shall
be entitled to exercise any of its rights and remedies hereunder.
9. Forbearance Fee. In consideration of this Agreement, the
forbearance, and the other agreements set forth herein, Borrower agrees
to pay to Lender a forbearance fee in the amount of Twenty Five
Thousand and 00/100 Dollars ($25,000.00) (the "Forbearance Fee") which
shall be fully earned by Lender as of the date of this Agreement. Such
Forbearance Fee shall be deducted from the Deferred Forbearance Payment
due Lender as set forth and defined in that certain Forbearance
Agreement, dated May 1, 2004, among Lender and Borrowers.
10. Attorney's Fees and Expenses; Lender's Out-of-Pocket
Expenses. The parties acknowledge that Lender has employed outside
counsel and accountants for advice and other representation and has
incurred and will continue to incur legal and/or other costs and
expenses in connection with: (a) the monitoring, review and analysis of
transactions involving the Borrowers and the Borrowers' books and
records and financial condition; (b) the preparation, negotiation and
execution of this Agreement and any and all other related document or
any amendment of or modification to same; (c) recording and filing any
of the foregoing documents or any other of the Credit Documents; (d)
obtaining appraisals or title or lien searches; (e) any litigation,
contest, dispute, suit, proceeding or action, whether instituted by
Lender, any Borrower, or any other entity in any way relating to this
Agreement or the administration thereof or any of the Borrowers'
affairs; (f) any attempt to enforce any rights of Lender against any
Borrower or any other entity which may be obligated to Lender by virtue
of this Agreement or any Credit Document, including without limitation,
the Borrowers' debtors; and (g) any attempt to inspect, verify,
protect, collect, sell, liquidate or otherwise dispose of the
Collateral. The reasonable attorneys' and accountants' fees arising
from such services and all reasonably incurred expenses, costs, charges
and other fees of such counsel, accountants or of Lender in any way or
respect arising in connection with or relating to any of the events or
actions described in this Section 9shall be payable, on demand, by the
Borrowers, jointly and severally, to Lender, and shall be additional
Obligations of the Borrower secured by the Collateral.
11. Covenants. The Borrowers hereby covenant and agree that
during the Forbearance Period, they will:
(a) Continue to comply with all covenants and other
obligations of the Borrowers under the Credit Documents, as amended
hereby, including, but not limited to, making all payments of interest,
principal, fees and other amounts as and when due and payable by
Borrowers to Lender under the Credit Documents; provided that the
Borrowers shall not be required to comply with or cure the Designated
Defaults during the Forbearance Period;
(b) Give prompt written notice to Lender of: (i) any Default
hereunder; (ii) any occurrence which might mature into a Default
hereunder (whether by the passage of time, giving of notice or
otherwise); and (iii) any other matter which might result in a material
adverse change in the financial condition of any Borrower or the value
of the Collateral (such notice will describe the foregoing matters with
particularity and the action which the Borrowers are taking or propose
to take with respect thereto); and
(c) Remain in compliance with all financial, collateral
maintenance, and reporting covenants and requirements under the Credit
Documents and this Agreement, except as same may constitute a
Designated Default hereunder.
12. Sale of Lender's Collateral. Upon the expiration of the
Forbearance Period, Lender shall have the right to sell, lease or
otherwise dispose of the Collateral in accordance with the terms of the
Credit Documents and applicable law. The Borrowers hereby consent and
agree to such sale, lease or other disposition of the Collateral by
Lender. To the extent permitted by applicable law, the Borrowers hereby
waive, renounce and forever relinquish all right to notice prior to
disposition of the Collateral required by the Credit Documents, and all
other rights that are waivable under Article 9 of the Uniform
Commercial Code, as enacted in any applicable state (and similar
provisions of any applicable law of any other jurisdiction), whether
such rights are waivable before or after default, including without
limitation, those rights with respect to the compulsory disposition of
collateral and with respect to redemption of collateral, and the right
to notice of any disposition of collateral. The Borrowers further waive
and forever relinquish any and every right of redemption, including any
statutory right of redemption and any equitable right of redemption.
This Section 11 and the irrevocable waivers contained herein shall
survive the termination of this Agreement.
13. Default. A "Default" shall exist under this Agreement if
any one or more of the following events shall have occurred:
(a) Any breach or default of any term, representation,
warranty, condition or covenant set forth in, or any event of default
under, any of the Credit Documents or this Agreement, other than the
Designated Defaults;
(b) Any Borrower shall fail to keep or perform any of the
covenants or agreements contained herein or any representation or
warranty of any Borrower herein was false, misleading or incorrect in
any respect when made; or
(c) The Trustee under, and/or the holders of 25% or more of
the Series A and Series B Notes issued by Continental Global under the
Indenture, shall have declared the Series A and Series B Notes and/or
any Liquidated Damages to be due and payable; or
(d) Lender, in its sole discretion, determines that a material
adverse change has occurred after the date hereof in the financial
condition, operations, or business of any Borrower or the value of the
Collateral.
No notice of the occurrence of a Default hereunder, or the termination of the
Forbearance Period, shall be due to Borrowers.
14. Remedies in Event of Default or Expiration of Forbearance
Period. Immediately upon the occurrence of a Default, and notwithstanding
anything to the contrary set forth herein, Lender may, at its option, terminate
the Forbearance Period and the forbearance accorded to the Borrowers under this
Agreement, whereupon the liabilities of the Borrowers to Lender will be
immediately due and payable without notice, presentment, demand or other notice
of any kind. Upon the expiration or earlier termination of the Forbearance
Period, Lender may exercise its rights and remedies as set forth in the Credit
Documents and in any other document previously, now or hereafter executed and
delivered to Lender by the Borrowers, and all rights and remedies existing under
applicable law and at equity, including, without limitation, appointing a
receiver without notice, without bond, and without regard to the value of the
Collateral or the solvency or insolvency of any Borrower. All rights and
remedies shall be cumulative and not exclusive, and Lender shall have the right
to exercise any and all other rights and remedies which may be available. Any
action by Lender against any property or party shall not serve to release or
discharge any other security, property or person in connection with this
transaction unless or until the Obligations shall irrevocably have been paid in
full.
15. WAIVER AND RELEASE OF ALL CLAIMS AND DEFENSES. THE
BORROWERS, FOR THEMSELVES AND THEIR RESPECTIVE AFFILIATES, SUCCESSORS, ASSIGNS,
SHAREHOLDERS, OFFICERS AND DIRECTORS, HEREBY FOREVER WAIVE, RELINQUISH,
DISCHARGE AND RELEASE ALL DEFENSES AND CLAIMS OF EVERY KIND OR NATURE, WHETHER
EXISTING BY VIRTUE OF STATE, FEDERAL, OR LOCAL LAW, BY AGREEMENT OR OTHERWISE,
AGAINST LENDER, ITS SUCCESSORS, ASSIGNS, DIRECTORS, OFFICERS, SHAREHOLDERS,
AGENTS, EMPLOYEES AND ATTORNEYS, WHETHER PREVIOUSLY OR NOW EXISTING OR ARISING
OUT OF OR RELATED TO ANY TRANSACTION OR DEALINGS AMONG THE PARTIES, INCLUDING
BUT NOT LIMITED TO THE NEGOTIATION, EXECUTION AND DELIVERY OF THIS AGREEMENT,
THE CREDIT DOCUMENTS OR ANY PRIOR AMENEMENT OR RESTATEMENT, WHICH ANY BORROWER
MAY HAVE OR MAY HAVE MADE AT ANY TIME UP THROUGH AND INCLUDING THE DATE OF THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY AFFIRMATIVE DEFENSES,
COUNTERCLAIMS, SETOFFS, DEDUCTIONS OR RECOUPMENTS. NOTHING CONTAINED IN THIS
AGREEMENT PREVENTS ENFORCEMENT OF THIS RELEASE.
16. Setoff. In addition to any rights now or hereafter granted
under applicable law or this Agreement and not by way of limitation of any such
rights, upon the occurrence of any Default, Lender is hereby authorized by the
Borrowers, at any time or from time to time, without notice to any Borrower, or
any other person or entity, any such notice being hereby expressly waived, to
setoff and to appropriate and to apply any and all deposits (general or special,
including, but not limited to, indebtedness evidenced by certificates of deposit
whether matured or unmatured, but not including trust accounts), and any other
indebtedness at any time held or owing to any Borrower by Lender, including, but
not limited to, all claims of any nature or description arising out of or
connected with the Credit Documents, against the Obligations, regardless of
whether or not Lender shall have made any demand under any such document or
otherwise.
17. Notice. Any notice, demand, or communication required or
permitted to be given by any provision of this Agreement will be in writing and
will be deemed to have been given when delivered personally, to the party
designated to receive such notice, or on the date following the date sent by
overnight delivery by a nationally recognized courier service, or on the third
business day after the same is sent by certified mail, postage and charges
prepaid, directed to the following addresses or to such other or additional
addresses as any party might designate by written notice to the other party:
If to Lender:
Bank One, N.A,
00 Xxxxx Xxxx Xxxxxx, 0xx Xxxxx
XX0-0000
Xxxxx, XX 00000
Attn : Xxxxx X. Xxxxxx
with copy sent to:
Xxxx X. Xxxxxxxxx, Esq.
Xxxxx & Berne LLP
Penton Media Building
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxx 00000-0000
If to any Borrower:
=======================
000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
With copy sent to:
Xxxxx X. Xxxxxx, Esq.
Squire, Xxxxxxx & Xxxxxxx L.L.P.
0000 Xxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
18. Amendments. This Agreement may not be amended or modified
except in a writing signed by Lender and the Borrowers.
19. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the Borrowers and Lender and their
respective successors, legal representatives, and assigns; provided, however,
that the foregoing shall not authorize any assignment by any Borrower of its
rights or duties hereunder without Lender's prior written consent. Lender does
not undertake to give or to do or refrain from doing anything directly to or for
the benefit of any person other than the Borrowers and, with respect to the
Borrowers, other than as described herein. Although third parties may
incidentally benefit from this Agreement, there are no intended beneficiaries
other than the Borrowers and Lender.
20. Governing Law and Venue. This Agreement is made in the
State of Ohio and the validity of this Agreement, the Credit Documents, the
construction, interpretation, and enforcement thereof, and the rights of the
parties thereto shall be determined under, governed by, and construed in
accordance with the internal laws of the State of Ohio, without regard to
principles of conflicts of law. The Borrowers agree that all actions or
proceedings arising in connection with this Agreement and the Credit Documents
shall be tried and litigated only in the Federal District Court for the Northern
District of Ohio or the state courts of Summit County, Ohio. The parties hereto
waive any right each may have to assert the doctrine of forum non conveniens or
to object to venue to the extent any proceeding is brought in accordance with
this Section. Service of process sufficient for personal jurisdiction in any
action against any Borrower may be made by registered or certified mail, return
receipt requested, to its address(es) set forth in Section 17 hereof.
21. Execution in Counterparts. This Agreement may be executed
in multiple counterparts, all of which counterparts taken together shall
constitute but one and the same agreement. This Agreement shall become effective
upon the execution of a counterpart hereof by each of the parties hereto.
22. Power of Attorney. Each Borrower does hereby irrevocably
constitute and appoint Lender its true and lawful attorney-in-fact for it, in
its name, place and stead, with full power of delegation and substitution, to
make, execute, deliver and any and all instruments, papers and documents, which
shall become necessary, proper, convenient or desirable to further evidence
perfection of Lender's liens against, or to liquidate any of, the Collateral,
including, without limitation, the right to supply any necessary endorsement for
any instrument.
23. Entire Agreement. This Agreement, together with the other
Credit Documents, contain the entire agreement of the parties hereto and no
party shall be bound by anything not expressed in writing.
24. Severability. Should any part, term or provision of this
Agreement be decided by the courts to be illegal, unenforceable or in conflict
with any law of the state of Ohio, federal law or any other applicable law, the
validity and enforceability of the remaining portions or provisions of this
Agreement shall not be affected thereby.
25. Headings. The headings and captions used herein are
provided for convenience only, and shall not be used in construction of this
Agreement.
26. Further Assurance. The Borrowers agree to execute such
other and further documents and instruments as Lender may request to implement
the provisions of this Agreement and to perfect and protect the liens and
security interests created by the Credit Documents.
27. No Oral Waiver or Course of Dealing by Lender. No oral
representations or course of dealing on the part of Lender or any of its
officers, employees, consultants, professionals or agents, nor any failure or
delay by Lender with respect to the exercise of any right, power, privilege or
remedy under any of the Credit Documents, this Agreement and/or applicable law
shall operate as a waiver thereof and the single or partial exercise of any such
right, power, privilege or remedy shall not preclude any later exercise of any
other right, power, privilege or remedy.
28. WAIVER OF A JURY TRIAL. LENDER AND BORROWERS ACKNOWLEDGE
AND AGREE THAT THERE MAY BE A CONSTITUTIONAL RIGHT TO A JURY TRIAL IN CONNECTION
WITH ANY CLAIM, DISPUTE OR LAWSUIT ARISING BETWEEN OR AMONG THEM, BUT THAT SUCH
RIGHT MAY BE WAIVED. ACCORDINGLY, EACH PARTY AGREES THAT NOTWITHSTANDING SUCH
CONSTITUTIONAL RIGHT, IN THIS COMMERCIAL MATTER, EACH PARTY BELIEVES AND AGREES
THAT IT SHALL BE IN ITS BEST INTEREST TO WAIVE SUCH RIGHT, AND ACCORDINGLY,
HEREBY WAIVES SUCH RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM, SUIT
OR PROCEEDING IN RESPECT OF OR ARISING OUT OF THIS AGREEMENT, THE CREDIT
AGREEMENT, THE CREDIT DOCUMENTS, OR THE CONDUCT OF THE RELATIONSHIP BETWEEN
LENDER AND BORROWER (REGARDLESS OF WHETHER THE CLAIMS MAY ARISE UNDER CONTRACT,
TORT OR OTHERWISE), AND FURTHER AGREES THAT THE BEST FORUM FOR HEARING ANY CLAIM
DISPUTE OR LAWSUIT, IF ANY, ARISING IN CONNECTION WITH THIS AGREEMENT, ANY
CREDIT DOCUMENT OR THE RELATIONSHIP AMONG LENDER AND THE BORROWERS SHALL BE A
COURT OF COMPETENT JURISDICTION SITTING WITHOUT A JURY.
IN WITNESS WHEREOF, Lender and the Borrowers have executed
this Agreement as of the date set forth above.
BANK ONE, N.A.
By: ____________________________
Its: ___________________________
WARNING: BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN
AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED
TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR
WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
CONTINENTAL CONVEYOR & EQUIPMENT COMPANY XXXXXXX CONVEYOR COMPANY
By:____________________________ By:____________________________
Its:___________________________ Its:___________________________
