Exhibit 10(a)(i)
REAFFIRMATION AGREEMENT, GENERAL RELEASE,
CONSENT AND ACKNOWLEDGEMENT OF COMMERCIAL
REASONABLENESS OF PRIVATE SALE
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THIS REAFFIRMATION AGREEMENT, RELEASE, CONSENT AND ACKNOWLEDGMENT OF
COMMERCIAL REASONABLENESS OF PRIVATE SALE (this "Agreement") is made as of
February 1, 2001, by and among ATLANTIC HARDWARE & SUPPLY CORPORATION, a New
York corporation ("Atlantic Hardware"), UNIVERSAL SUPPLY GROUP, INC. (formerly
known as Colonial Commercial SubCorp.), a New York corporation ("Universal
Supply"), COLONIAL COMMERCIAL CORP., a New York corporation ("Colonial"),
(Atlantic Hardware, Universal Supply and Colonial are sometimes referred to as
the "Guarantors") and LASALLE BANK NATIONAL ASSOCIATION, a national banking
association ("Bank"). Capitalized terms not otherwise defined herein shall have
the meanings assigned to such terms in the Foreclosure Agreement, dated as of
February 1, 2001, by and among WELL-BILT STEEL PRODUCTS, INC., a New Jersey
corporation ("Borrower"), INDEPENDENT STEEL PRODUCTS, LLC, a New York limited
liability company ("Buyer"), Guarantors and Bank (the "Foreclosure Agreement").
W I T N E S S E T H:
WHEREAS, pursuant to the Atlantic Hardware Documents, Universal Supply
Documents and Well-Bilt Steel Documents, Bank made loans and other financial
accommodations to or for the benefit of Guarantors and Borrower, and Guarantors
and Borrower have granted to Bank a lien against and security interest in
substantially all of their respective assets, including the Subject Assets, as
security for the Atlantic Hardware Obligations, Universal Supply Obligations and
Well-Bilt Steel Obligations;
WHEREAS, Borrower and Bank desire to sell the Subject Assets to the
Buyer, and the Buyer desires to purchase the Subject Assets from Bank in a sale
(the "Sale") under Section 9-504 of the Illinois Uniform Commercial Code (the
"UCC") pursuant to the Foreclosure Agreement; and
WHEREAS, Guarantors will derive substantial direct and indirect benefit
from the consummation of the Sale, including, without limitation, the
application of the proceeds thereof to the Well-Bilt Steel Obligations in
accordance with Section 5.3(d) of the Foreclosure Agreement.
NOW, THEREFORE, in consideration of the Sale and to induce Bank to
proceed therewith, Guarantors agree as follows:
SECTION 1. Reaffirmation and Ratification of Atlantic
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Hardware Documents and Universal Supply Documents.
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1.1. Reaffirmation. Atlantic Hardware hereby reaffirms the Atlantic
Hardware Obligations owing under the Atlantic Hardware Documents as of the date
and time immediately preceding consummation of the Sale and the continuing
validity and effectiveness of (i) the Atlantic Hardware Documents, (ii) the lien
and security interest granted to the Bank pursuant to the Atlantic Hardware
Documents and (iii) all other rights and remedies of Bank arising under the
Atlantic Hardware Documents and applicable law. Universal Supply hereby
reaffirms the Universal Supply Obligations owing under the Universal Supply
Documents as of the date and time immediately preceding consummation of the Sale
and the continuing validity and effectiveness of (i) the Universal Supply
Documents, (ii) the lien and security interest granted to the Bank pursuant to
the Universal Supply Documents and (iii) all other rights and remedies of Bank
arising under the Universal Supply Documents and applicable law.
1.2. Ratification; Atlantic Hardware Documents and Universal Supply
Documents Remain in Full Force and Effect. Atlantic Hardware hereby ratifies and
confirms all terms and provisions of the Atlantic Hardware Documents and agrees
that the Atlantic Hardware Documents remain in full force and effect. Universal
Supply hereby ratifies and confirms all terms and provisions of the Universal
Supply Documents and agrees that the Universal Supply Documents remain in full
force and effect. Colonial hereby reaffirms, ratifies and confirms all terms and
provisions of its third party guaranties of each of the Atlantic Hardware
Obligations, Universal Supply Obligations and Well-Bilt Steel Obligations and
agrees that such guaranties remain in full force and effect.
SECTION 2. Consent to Sale; Commercial Reasonableness; Releases
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and Waivers.
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2.1. Consent. Each Guarantor hereby agrees and consents to, and
confirms and acknowledges, all aspects of the Sale.
2.2. Confirmation of Indebtedness, Loan Agreement and Security
Interest. East Guarantor hereby confirms, reaffirms and acknowledges: (a) that
the Well-Bilt Steel Obligations owing to Bank as of the Closing Date are due and
payable pursuant to the Well-Bilt Steel Documents and that Borrower has no
defense to the payment thereof or counterclaim with respect thereto; and (b) the
continuing validity and effectiveness of (i) the Well-Bilt Steel Documents, (ii)
the lien and security interest granted to Bank in the Encumbered Assets, and
(iii) all other rights and remedies of Bank arising under the Well-Bilt Steel
Documents and applicable law.
2.3. Acknowledgement of Commercially Reasonable Sale and of
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Rights of Bank under the UCC.
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(a) Each Guarantor hereby acknowledges and agrees that Bank has the
right, pursuant to the Well-Bilt Steel Documents and the UCC, as a secured
party, to effect the Sale and otherwise exercise all of its rights set forth in
Article 9 of the UCC, and further acknowledges and agrees that: (i) the Sale is
in all respects being conducted in a commercially reasonable manner; and (ii)
Bank has complied with all applicable provisions of the Well-Bilt Steel
Documents, the UCC and other applicable law in conducting the Sale.
(b) Each Guarantor has substantial experience in the industry within
which it conducts its business and has independently determined that the
consideration paid or otherwise transferred by the Buyer pursuant to the
Foreclosure Agreement for the Subject Assets is fair and reasonable. Each
Guarantor has approved the terms of the Sale.
2.4. Waiver and Release of Rights under Article 9 of UCC; General
Waiver and Release. Each Guarantor hereby waives and releases all of its rights
as a debtor under Article 9 of the UCC to object to the Sale, including, without
limitation, its right to receive notice of such sale (other than the notice of
such sale effected hereby) from Bank pursuant to Section 9-504(3) of the UCC and
any right it may have under the Well-Bilt Steel Documents to receive any and all
other notices. Each Guarantor hereby consents to and confirms the commercial
reasonableness of the Sale. Each Guarantor further waives and releases any and
all rights, claims and causes of action it may now, heretofore or hereafter have
against Bank and its successors, assigns, officers, directors, employees,
attorneys, agents and representatives, including, without limitation, in
connection with the Sale, the Foreclosure Agreement and the transactions
contemplated thereby. Each Guarantor represents to Bank that it presently has no
claim, demand, defense, right of setoff or counterclaim of any kind or nature
whatsoever against Bank, its officers, directors, employees, attorneys, agents
or representatives, nor will it bring any such claim, demand, defense, right of
setoff or counterclaim of any kind or nature whatsoever against Bank, its
officers, directors, employees, attorneys, agents or representatives in the
future. Each Guarantor hereby further acknowledges and agrees that Bank is
specifically relying upon the agreements contained in this Agreement. Each
Guarantor further represents that it has been represented by counsel which it
has selected and that it is fully apprised of the consequences of its
undertaking under this Section 2.4.
2.5 Indemnification.
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Each Guarantor will be liable to, and will indemnify, hold harmless and
defend Bank and its successors, assigns, officers, directors, employees,
attorneys, agents and representatives ("Indemnified Parties"), from and against
any and all claims, actions, disputes, losses, damages, expenses and costs
(including without limitation costs in evaluating any alleged claim, action or
dispute) arising out of or related to the Foreclosure Agreement and such
indemnity obligation will be deemed to be Atlantic Hardware Obligations and
Universal Supply Obligations.
SECTION 3. General.
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(a) This Agreement has been delivered at Chicago, Illinois,
and shall be construed in accordance with and governed by the internal laws of
the State of Illinois without regard to principles of conflicts of laws.
(b) Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Agreement as of February 1, 2001.
ATLANTIC HARDWARE & SUPPLY CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Its: Secretary
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UNIVERSAL SUPPLY GROUP, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Its: Executive Vice President
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COLONIAL COMMERCIAL CORP.
By: /s/ Xxxxx X. Xxxxxxx
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Its: Executive Vice President
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Accepted and Agreed as of February 1, 2001.
LASALLE BANK NATIONAL ASSOCIATION
By:
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Its:
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