F-195038.00
F-196293.00
FORBEARANCE AGREEMENT
THIS AGREEMENT is entered into as of January 22, 2001 by and between
NORTHLAND CRANBERRIES, INC., a Wisconsin corporation (the "Company"), and THE
EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a New York corporation
("Equitable").
WITNESSETH:
WHEREAS, Equitable has made two loans to the Company in the aggregate
original principal amount of $27,500,000 (the "Loans"); and
WHEREAS, the Loans are evidenced by (a) that certain Secured
Promissory Note dated June 14, 1989, as amended by Modification Agreement dated
as of July 9, 1993, in the original principal amount of $17,000,000 ("Note 1")
and (b) that certain Secured Promissory Note dated July 9, 1993 in the original
principal amount of $10,500,000 ("Note 2"; Note 1 and Note 2, collectively, the
"Notes"); and
WHEREAS, the outstanding principal balance of Note 1 and Note 2 as of
the date hereof is $11,376,864.24 and $7,718,807.76, respectively, and there is
also due and owing interest, default rate interest, fees and expenses (including
attorneys' fees and expenses) as set forth in the Loan Documents (collectively,
the "Indebtedness"); and
WHEREAS, pursuant to the documents listed on Exhibit A attached hereto
(collectively, the "Collateral Documents"), the Loans are secured by certain
real and personal property (the "Collateral") described in the Collateral
Documents; and
WHEREAS, the Notes, Collateral Documents and all related documents are
sometimes referred to herein as the "Loan Documents"; and
WHEREAS, Equitable perfected its mortgage liens and security interests
in the Collateral by, among other things, recording its mortgage interests and
filing financing statements in each jurisdiction and office required under
applicable law; and
WHEREAS, by virtue of the occurrence of certain defaults under the
Loan Documents, including, without limitation, the failure to pay the
installment of principal and interest due January 1, 2001 under Note 1 and the
Company's failure to meet certain financial covenants, the Company is in default
of the Loans; and
WHEREAS, the Company is unable to cure such defaults and has asked
Equitable to forbear from exercising certain rights under the Loan Documents;
and
WHEREAS, Equitable is willing to forbear from exercising such rights
solely for the period and solely on the terms and conditions provided herein;
NOW, THEREFORE, in consideration of the above premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined
herein shall have the meanings given to such terms by the Loan Documents. As
used herein, the term "Forbearance Period" shall mean the period of time
beginning on the date of this Agreement and ending on the earlier of:
(a) February 12, 2001;
(b) The occurrence of a default or event of default (other than the
Existing Defaults (as defined below) or the delays in payments
contemplated in this agreement) under any of the Loan Documents or a
breach by the Company of any of the agreements, representations, or
warranties of the Company contained in this Agreement;
(c) Such time as the Company shall contest or deny the validity or
enforceability of this Agreement or any of the Loan Documents, or the
truth of any of the acknowledgements, representations or warranties
set forth herein;
(d) Such time as any material adverse change shall occur in the business
or financial condition of the Company after the date hereof;
(e) The occurrence of any event of default under any similar forbearance
agreement between the Company and any of its other material creditors
or the actual termination of any informal forbearance by any of the
Company's other material creditors. "Material creditors" include any
creditor holding indebtedness totaling $1,000,000 or more;
(f) The filing of any claim or threat to file a claim purported to be
released in Section 22 below; or
(g) The occurrence of an Event of Default hereunder.
2. Waiver of Grace Periods, Notice Requirements and Cure Periods. The
Company waives: (a) the 10 day period provided in Section 4 of Note 1, (b) the
10 day period provided in Section 17(a) of the Mortgage and Security Agreement
dated June 14, 1989, (c) the 10 day period provided in Section 4 of Note 2, (d)
the 10 day period provided in Section 18(a) of the Mortgage and Security
Agreement dated July 9, 1993, and (e) the notice requirement and 30 day period
provided in Section 18(j) of the Mortgage and Security Agreement dated July 9,
1993.
3. Acknowledgement of Indebtedness. The Company acknowledges and
agrees that certain defaults and Events of Default ("Existing Defaults") have
occurred and are continuing under the Loan Documents, including but not limited
to the Company's failure to pay the
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installment of principal and interest due January 1, 2001 under Note 1 and the
Company's failure to meet the financial covenants set forth in the Loan
Documents. The Company acknowledges and agrees that all necessary notices have
been given concerning such Existing Defaults, and that all periods of time in
which the Company might have the opportunity to cure such Existing Defaults have
expired. The Company acknowledges and agrees that Equitable has the right under
the Loan Documents, in its sole and absolute discretion, to declare the entire
Indebtedness to be immediately due and payable and that, once accelerated by
Equitable, the Indebtedness will be due and owing without defense, right of
offset, or counterclaim of any kind or nature. The Company acknowledges and
agrees that nothing contained in this Agreement shall (a) nullify, extinguish,
satisfy, release, discharge, constitute a novation or otherwise affect any of
the Company's obligations to Equitable, (b) constitute a waiver of any default
under the Loan Documents, or (c) vary or waive any of the Indebtedness. The
Company acknowledges and agrees that interest on the January 1, 2001 payment on
Note 1 has accrued at the default rate set forth in the Loan Documents since
January 1, 2001, and that interest at the default rate continues to accrue on
that amount. The Company acknowledges and agrees that all of the recitals to
this Agreement are true and correct.
4. Acknowledgement of Secured Status. The Company acknowledges and
agrees that the Collateral Documents are legal, valid and binding obligations of
the Company and are enforceable in accordance with their terms. The Company
acknowledges and agrees that the Collateral Documents grant to Equitable a valid
and subsisting mortgage lien and security interest in all of the Collateral, and
that Equitable's mortgage liens and security interests were properly perfected
in accordance with applicable law.
5. Forbearance. Equitable agrees to forbear during the Forbearance
Period from seeking immediate payment of the full amount of the Indebtedness,
except to the extent provided herein. Equitable agrees that the Company may
defer the payment of principal and interest that was due on Note 1 on January 1,
2001 and all other scheduled payments of principal and interest on the Loans
that will become due during the Forbearance Period until the expiration or other
termination of the Forbearance Period. In addition, if all deferred payments are
made in full on the expiration or other termination of the Forbearance Period
and no Event of Default has occurred hereunder, Equitable will be deemed to have
waived and forgiven all additional interest due under the Loan Documents as a
result of the application of any default rate of interest. The Company
acknowledges and agrees that if any of the terms or conditions of this Agreement
are not satisfied within the sole discretion of Equitable, or if any Event of
Default occurs hereunder, Equitable's agreement to forbear shall terminate in
accordance with the terms of this Agreement and Equitable shall be entitled to
exercise any or all of its rights and remedies hereunder and under the Loan
Documents. Upon the expiration or other termination of the Forbearance Period,
Equitable may immediately and without notice of any kind exercise any and all
rights and remedies available to it under the Loan Documents or under applicable
law.
6. Consideration for Forbearance. In consideration of Equitable's
agreement to forbear from taking certain actions during the Forbearance Period,
the Company agrees that:
(a) Simultaneously with the execution of this Agreement, the Company shall
provide Equitable with an executed copy of a forbearance agreement
(the "Bank Forbearance Agreement"), in the form attached hereto as
Exhibit B, with all schedules and
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exhibits, between the Company, Firstar Bank, N.A., as Agent, and the
other lenders party to that certain Credit Agreement, dated as of
March 15, 1999, as amended (collectively, the "Banks");
(b) Upon request, the Company shall provide to Equitable copies of all
documents described in subsections (b), (e), (f) and (j) of Section 5
of the Bank Forbearance Agreement;
(c) Simultaneously with the execution of this Agreement, the Company shall
provide Equitable with evidence of payment of all real estate taxes
pertaining to the Collateral;
(d) Simultaneously with the execution of this Agreement, the Company shall
reimburse Equitable the sum of $28,500 which has been and will be
incurred by Equitable in connection with obtaining an appraisal of the
Collateral;
(e) On or before January 19, 2001, the Company shall provide Equitable
with the information required by Section 5(j)(vi)(D) of the Bank
Forbearance Agreement for the months of November and December, 2000;
(f) On or before January 31, 2001, the Company shall pay to Equitable all
of its documented legal fees and expenses incurred in connection with
this Agreement and the review of the Loan Documents and Collateral,
which shall be invoiced to the Company on or before January 19, 2001;
(g) Upon invoice, the Company shall reimburse Equitable for the costs of
lien searches for the Collateral;
(h) Except as specifically provided herein, the Company shall comply with
all of the terms of the Loan Documents;
(m) Within one (1) business day of the Company's receipt thereof, the
Company shall provide Equitable written notice of demand for payment
made by the holder of any guaranty made by the Company; and
(n) The Company shall pay no dividends or make any other distributions to
shareholders, or make any loans for borrowed money to any person other
than extensions of trade credit in the ordinary course of business.
7. Effect of this Agreement; Collateral. Except as expressly provided
above, the Loan Documents shall remain in full force and effect. This Agreement
shall not release, discharge or satisfy any present or future debts, obligations
or liabilities to Equitable of the Company, any guarantor or other person or
entity liable for payment or performance of any of such debts, obligations or
liabilities of the Company, or any mortgage, security interest, lien or other
collateral or security for any of such debts, obligations or liabilities of the
Company, or such debtors, guarantors, or other persons or entities, or waive any
default. Equitable expressly reserves all of its rights and remedies with
respect to the Company, and all such debtors,
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guarantors or other persons or entities, and all such mortgages, security
interest, liens and other collateral and security. Without limiting the
generality of the foregoing, the Indebtedness, the Notes and all extensions,
renewals, modifications and refinancings thereof, and all present and future
debts, obligations and liabilities of the Company to Equitable shall continue to
be secured by the Collateral Documents. The Company acknowledges that Equitable
shall not be obligated to extend the Forbearance Period, to enter into any
forbearance agreement on any future occasion, to otherwise forbear from
exercising its rights after the expiration or other termination of the
Forbearance Period, or to offer the Company any new credit facility upon the
expiration or other termination of the Forbearance Period. Except as modified by
this Agreement, the Company hereby restates and reaffirms each and every
representation, warranty, covenant and agreement contained in the Loan
Documents, specifically including, but not limited to, the Prohibitions on
Secondary Financing provisions, as fully and with the same force and effect as
if such representations, warranties, covenants and agreements were set forth
herein.
8. Representations and Warranties of the Company. In order to induce
Equitable to enter into this Agreement, and in recognition of the fact that
Equitable is acting in reliance thereupon, the Company hereby covenants,
represents and warrants to Equitable that:
(a) The Company is duly incorporated, validly existing and in good
standing under the laws of the State of Wisconsin and has the power
and authority and the legal right to own and operate its property, to
lease the property it operates, and to conduct the business in which
it is currently engaged.
(b) The chief executive office of the Company is, and continues to be,
located at 800 First Avenue South, Wisconsin Rapids, Wisconsin
54495-8020.
(c) The Company has the power and authority to enter into, deliver, issue
and perform all of its obligations under this Agreement. This
Agreement, when duly executed and delivered on behalf of the Company,
will constitute the legal, valid and binding obligations of the
Company enforceable against the Company in accordance with its terms.
(d) No consent or authorization of, filing with, or act by or in respect
of any governmental authority is required in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement. The execution, delivery and performance of this Agreement
(i) has been duly authorized by all necessary action, where
applicable, (ii) will not violate any requirement of law or any
contractual obligation of the Company and (iii) will not result in, or
require, the creation or imposition of any lien on any of its
properties or revenues pursuant to any requirement of law or
contractual obligation.
(e) No information, financial statement, exhibit or report furnished by
the Company to Equitable in connection with the negotiation of, or
pursuant to, this Agreement contains any material misstatement of
fact, omits to state a material fact, or omits any fact necessary to
make the statements contained therein, in light of the circumstances
in which they were made, not misleading on the date when made.
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(f) Other than the Company's failure to pay the installment of principal
and interest due January 1, 2001 under Note 1 and the Company's
failure to meet those financial covenants which it has failed to meet
as of the date hereof, and after giving effect to the provisions of
this Agreement, no defaults or Events of Default exist under the Loan
Documents.
(g) Exhibits A through D to the Bank Forbearance Agreement are a complete
list of all mortgage lien and financing statement filings made by the
Banks covering any collateral securing the Banks' indebtedness,
including date and place of filing.
9. Events of Default. An event of default pursuant to this Agreement
(an "Event of Default") shall have occurred hereunder if:
(a) Subject to Section 9(f) hereof, the Company fails to comply with any
term, covenant or agreement contained herein; or
(b) Any representation or warranty made by the Company herein or in any
certificate, document, financial statement or other statement
furnished at any time under, and in connection with, this Agreement or
the Indebtedness proves to have been incorrect in any material respect
on or as of the date made; or
(c) Any Loan Document ceases to be in full force and effect or ceases to
create a lien on and security interest in the Collateral or for any
other reason Equitable shall cease to have a perfected lien on and
security interest in any of the foregoing; or
(d) Any of this Agreement or the Loan Documents shall, at any time after
their respective execution and delivery, and for any reason, cease to
be in full force and effect or shall be declared null and void or be
revoked or terminated, or the validity or enforceability thereof or
hereof shall be contested by the parties thereto or the parties
thereto shall deny that any of them has any or further liability or
obligations thereunder or hereunder, as the case may be; or
(e) The Company (i) admits in writing that it is insolvent; (ii) makes a
general assignment for the benefit of creditors; (iii) makes a general
assignment to an agent authorized to liquidate a substantial amount of
its property; (iv) files, or consents to the filing of, or the Board
of Directors of the Company votes to authorize the filing of any
proceeding, petition or case under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors which constitutes the commencement
of a case and/or constitutes an order for relief or which seeks: (A)
an adjudication that it is bankrupt or insolvent, (B) a
reorganization, arrangement, winding up, liquidation, dissolution,
composition or other relief with respect to its debts, or (C) the
appointment of a receiver, trustee, custodian or other similar
official for it or any substantial portion of its assets; (v) has
filed against it such a proceeding, petition or case; or (vi) has
filed against it any proceeding or action which seeks the issuance of
a warrant, attachment, execution, distraint or similar process against
any part of its assets with a book value of One Hundred Thousand
Dollars ($100,000) or more in the aggregate if such a proceeding
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or action results in the issuance of such process and such process is
not vacated, discharged, stayed or fully bonded within two (2) days of
entry thereof; or
(f) Any "Event of Default" or "default," as either term is defined in any
of the Loan Documents, other than the failure to pay the installment
of principal and interest due January 1, 2001 under Note 1 and the
Company's failure to meet those financial covenants which it has
failed to meet as of the date hereof, shall occur after the date
hereof; provided, however, that the failure to make any regularly
scheduled payment of principal or interest that comes due prior to the
end of the Forbearance Period shall not constitute an Event of Default
as defined herein; or
(g) The Banks (or the Agent for the Banks) take any action to accelerate
or enforce the obligations of the Company to them, or to foreclose
their mortgages and other liens on the Company's assets or accept a
surrender or transfer to it of all or any part of its collateral
including by way of acceptance of a deed in lieu of foreclosure; or
(h) Any material adverse change in the business, financial condition or
property of the Company shall occur after the date hereof.
10. Right to Enter Mortgaged Premises. Upon the occurrence of an Event
of Default hereunder, Equitable shall have the right to enter and use the
property described in the Collateral Documents, rent free, for such period of
time as shall be necessary to liquidate the Collateral.
11. Additional Indebtedness. If the Company fails to pay or reimburse
to Equitable any amounts called for under this Agreement, such amounts shall be
added to the Indebtedness, and shall be secured by the Collateral to the same
extent as the Indebtedness.
12. Entire Agreement; Amendment. This Agreement and the other
documents referred to herein contain the entire agreement between Equitable and
the Company with respect to the subject matter hereof, superseding all previous
communications and negotiations, and no representation, undertaking, promise or
condition concerning the subject matter hereof shall be binding upon Equitable
unless clearly expressed in this Agreement. No statement or writing subsequent
to the date hereof which purports to modify or add to the terms or conditions
hereof shall be binding unless contained in a writing which makes specific
reference to this Agreement and which is signed by all parties hereto.
13. Non-Waiver. No course of dealing between Equitable and any other
party hereto or failure or delay on the part of Equitable in exercising any
rights or remedies hereunder shall operate as a waiver of any rights or remedies
of Equitable under this or any other agreement. No single or partial exercise of
any rights or remedies hereunder shall operate as a waiver or preclude the
exercise of any other rights or remedies hereunder.
14. Relationship of the Parties. Nothing contained in this Agreement
or in the other documents referred to herein, and no action taken pursuant
hereto, shall be construed as permitting or obligating Equitable to act as
financial or business advisor or consultant to the Company, as permitting or
obligating Equitable to control or to conduct the operations of the Company, as
creating any fiduciary obligation of the part of Equitable to the Company, as
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causing the Company to be treated as an agent of Equitable, or as causing
Equitable and the Company to constitute a partnership, association, joint
venture or other entity. The Company represents that it has had the advice of
experienced counsel of its own choosing in connection with the negotiation and
execution of this Agreement and with respect to all matters contained herein.
15. Successors and Assigns. The provisions of this Agreement shall
inure to the benefit of any holder of the Notes, and shall inure to the benefit
of and be binding upon any successor to any of the parties hereto.
16. Survival. Each of the Company's acknowledgements and agreements
contained in Sections 1 through 4, 7 and 10 of this Agreement shall survive the
expiration or other termination of this Agreement.
17. Choice of Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Wisconsin.
18. Counterparts and Facsimile Signatures. This Agreement may be
signed in any number of counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument. Facsimile copies of signatures
shall be binding as original signatures.
19. No Third Party Benefit. This Agreement is solely for the benefit
of the parties hereto and their permitted successors and assigns. No other
person or entity shall have any rights under, or because of the existence of,
this Agreement.
20. Severability. If any term or provision of this Agreement or the
application thereof to any party or circumstance shall be held to be invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
the validity, legality and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby, and the
affected term or provision shall be modified to the minimum extent permitted by
law so as to achieve most fully the intention of this Agreement.
21. Release. THE COMPANY AND EQUITABLE AGREE THAT THIS AGREEMENT IS IN
THE BEST INTERESTS OF BOTH THE COMPANY AND EQUITABLE. THE COMPANY ACKNOWLEDGES
AND AGREES THAT EQUITABLE HAS ACTED IN GOOD FAITH IN ITS DEALINGS WITH THE
COMPANY WITH RESPECT TO THE LOAN, THE LOAN DOCUMENTS AND THIS AGREEMENT AND THAT
NEITHER EQUITABLE, LEND LEASE AGRI-BUSINESS, INC. NOR THEIR AFFILIATES,
OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, REPRESENTATIVES, ATTORNEYS AND
EMPLOYEES, PREDECESSORS, SUCCESSORS AND ASSIGNS (COLLECTIVELY THE "RELEASED
PARTIES") HAS COMMITTED ANY ACTS OR OMISSIONS WITH RESPECT TO THIS AGREEMENT,
THE LOAN, AND/OR THE LOAN DOCUMENTS WHICH PRODUCE CLAIMS OF BAD FAITH, DURESS,
EXCESSIVE CONTROL, JOINT VENTURE, OR OTHERWISE. THE COMPANY DOES HEREBY
EXPRESSLY REMISE, RELEASE, ACQUIT, AND DISCHARGE ALL ACTIONS, CAUSES OF ACTION,
SUITS, DEBTS, DUES, SUMS OF MONEY, ACCOUNTS, COVENANTS, CONTRACTS, DAMAGES,
CLAIMS AND DEMANDS WHATSOEVER, IN
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LAW OR IN EQUITY WHICH THEY EVER HAD, OR NOW HAVE AGAINST THE RELEASED PARTIES
RESULTING FROM, OR RELATING TO, OR IN ANY WAY ARISING OUT OF EQUITABLE'S
ADMINISTRATION OR HANDLING OF THE LOAN, THE LOAN DOCUMENTS, AND THIS AGREEMENT
AND WHETHER DUE TO THE NEGLIGENCE, MALFEASANCE, MISFEASANCE, OR NONFEASANCE OF
THE RELEASED PARTIES IN CONNECTION WITH OR ARISING OUT OF OR IN ANY WAY RELATED
TO THE BORROWER/LENDER RELATIONSHIPS EXISTING, AND HEREBY ACKNOWLEDGED TO EXIST,
BETWEEN THE COMPANY AND EQUITABLE. IT IS UNDERSTOOD AND AGREED THAT THIS RELEASE
IS NOT TO BE CONSTRUED AS AN ADMISSION OF LIABILITY ON THE PART OF THE RELEASED
PARTIES.
22. Reciprocal Waiver of Jury Trial. NEITHER THE COMPANY NOR
EQUITABLE, NOR ANY ASSIGNEE, SUCCESSOR, HEIR OR LEGAL REPRESENTATIVE OF THE
COMPANY OR EQUITABLE SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE LOAN DOCUMENTS; OR BASED UPON THE DEALINGS OR THE
RELATIONSHIPS BETWEEN OR AMONG THE COMPANY AND EQUITABLE. NEITHER THE COMPANY
NOR EQUITABLE WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS
BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE
PARTIES HERETO, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NEITHER
THE COMPANY NOR EQUITABLE HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER
PARTY THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date set forth above.
NORTHLAND CRANBERRIES, INC.
"Company"
By: /s/ John Swendrowski
---------------------------------------
John Swendrowski
Title: Chairman and CEO
Address: 800 First Avenue South
Wisconsin Rapids WI 54494
THE EQUITABLE LIFE ASSURANCE SOCIETY OF
THE UNITED STATES
"Equitable"
By: /s/
---------------------------------------
Title:
Address:
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EXHIBIT A
COLLATERAL DOCUMENTS
1. Mortgage and Security Agreement dated June 14, 1989 from Northland
Cranberries, Inc. (the "Company") to The Equitable Life Assurance
Society of the United States ("Equitable") as modified by Modification
Agreement dated July 9, 1993 between the Company and Equitable.
2. Assignment of Agreements Leases and Permits dated June 14, 1989 from
the Company to Equitable, as modified by Modification Agreement dated
July 9, 1993 between the Company and Equitable.
3. Mortgage and Security Agreement dated July 9, 1993 from the Company to
Equitable.
4. Assignment of Agreements, Leases and Permits dated July 9, 1993 from
the Company to Equitable.
5. Stock Pledge dated July 9, 1993 from the Company to Equitable.
6. Assignment dated July 9, 1993 from the Company to Equitable.
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EXHIBIT B
BANKS' FORBEARANCE AGREEMENT