Exhibit 10.1
FORBEARANCE AGREEMENT
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THIS FORBEARANCE AGREEMENT (this "Forbearance Agreement") is made as
of August 10, 2001 by and between OPEN PLAN SYSTEMS, INC., a Virginia
corporation ("Company") and WACHOVIA BANK, N.A. (the "Bank").
R E C I T A L S
A. Reference is made to that certain $5,250,000 revolving line
of credit extended by the Bank to the Company pursuant to a Commitment Letter
dated March 15, 2000, as amended by letter dated August 1, 2000 (as amended, the
"Credit Agreement") and the Reimbursement and Security Agreement, dated as of
June 1, 2000, between the Company and the Bank (the "Reimbursement Agreement,"
and collectively with the Credit Agreement, the "Agreements"), and to the notes
executed and delivered by the Company to the Bank evidencing the Company's
obligations to the Bank under the Agreements (collectively, the "Notes," and
together with the Agreements, the "Loan Agreements"). Terms used herein and not
otherwise defined herein, unless otherwise expressly noted, shall have the
meanings assigned to them in the Agreements.
B. The Company is in default of the Loan Agreements and the
Loan Documents for breach or violation of certain provisions of the
Reimbursement Agreement and corresponding provisions of the Credit Agreement
that exist as of the date hereof (the "Declared Defaults"). These provisions
include, without limitation, Sections 5.8, 6.1(b), 6.1(d), 7.13, 7.14 and 7.15
of the Reimbursement Agreement and the corresponding covenants in the Credit
Agreement.
C. By letter dated August 10, 2001, the Bank notified the
Company of the Declared Defaults (the "Default Notice").
D. The Company has asked that the Bank forbear from exercising
its rights and remedies against the Company pursuant to the terms of the Loan
Agreements, the Loan Documents (as hereinafter defined) and under applicable law
during the Forbearance Period (as hereinafter defined) and the Bank has agreed,
except as hereinafter specifically provided, to forbear from exercising its
rights and remedies under the such documents and applicable law on the terms and
conditions set forth herein.
A G R E E M E N T
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Additional Defined Terms. The following capitalized terms
shall have the following definitions:
"Collateral Reserve Account" shall mean a demand deposit account which
the
Company is required to open and maintain with the Bank for the concentration
and collection of proceeds of certain collateral, as provided in Section 2.04
hereof.
"Forbearance Fee" shall mean the sum of $50,000.00.
"Forbearance Period" shall mean the period from the date hereof until
the earlier to occur of (i) October 30, 2001, or (ii) a Termination Event.
"Loan Documents" shall mean the loan, bond and other documents executed
in relation to and in connection with the Loan Agreements.
"Termination Event" shall mean any of the events set forth in Section
8.01 hereof.
SECTION 1.02 Other Definitional Provisions. Except as otherwise
specified herein, all references herein (i) to any Person shall be deemed to
include such Person's successors, transferees and assignees, but only, in the
case of transferees and assignees of the parties to this Forbearance Agreement,
to the extent the applicable transfer or assignment complies with the provisions
of this Forbearance Agreement, and (ii) to any applicable law defined or
referred to herein shall be deemed a reference to such applicable law as the
same may have been or may be amended or supplemented from time to time.
a. When used in this Forbearance Agreement, the words "herein",
"hereof", and "hereunder" and words of similar import shall refer to this
Forbearance Agreement as a whole and not to any provision of this Forbearance
Agreement, and the words "Section", "Schedule" and "Exhibit" shall refer to
Sections of and Schedules and Exhibits to this Forbearance Agreement unless
otherwise specified.
b. Whenever the context so requires, each gender includes the
other gender, and the singular number includes the plural, and vice versa.
SECTION 1.03 Captions. Article and Section captions in this Forbearance
Agreement are included for convenience of reference only and shall not
constitute a part of this Forbearance Agreement for any other purpose.
ARTICLE II
AGREEMENTS OF THE COMPANY
The Company agrees as follows:
SECTION 2.01 Forbearance Fee. The Company shall pay the Bank the
Forbearance Fee, payable upon the earlier of (i) the Company's refinancing of
all of its obligations to the Bank with another lender, (ii) the execution of a
comprehensive, long term refinancing with the Bank of its obligations to the
Bank (to which the Bank is not hereby committing), or (iii) October 30, 2001.
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SECTION 2.02 Line of Credit Agreements.
(A) Availability under the line of credit (i) will be reduced to
$4,550,000 beginning July 31, 2001, (ii) will be further
reduced to $4,400,000 beginning August 15, 2001, and (iii)
will be further reduced to 4,250,000 beginning August 31,
2001.
(B) The interest rate on the line of credit will be increased to
LIBOR + 6.00%.
(C) The advance ratio under the line of credit will be as
follows:
1. The advance rate on Accounts Receivable will be 75% of
eligible Accounts Receivable.
2. The maximum reliance on inventory will be $1,500,000.
3. Inventory advances will be 35% of eligible inventory,
subject to provision 2 above.
4. Eligible inventory will be defined as: "That which is held
for resale in the normal course of business excluding
work-in-process and scrap."
5. No line of credit proceeds may be used to pay obligations
associated with the Company's Lansing, Michigan facility
under construction (the "Lansing Facility") without the
Bank's prior express written consent.
(D) The Company shall provide weekly borrowing base certificates
to the Bank.
(E) The Company shall pay to the Bank, for application to
obligations outstanding under the line of credit, 75% of all
proceeds representing trade accounts receivable, if any,
from the termination of the Company's Mexican joint venture
(Open Plan Systems Mexico, S.deR.L.deC.V.), and the Company
will submit a new borrowing base certificate to the Bank
prior to the Company's next draw on the line of credit,
which draw shall be in compliance with such new borrowing
base certificate, unless otherwise explicitly agreed to by
the Bank in writing.
(F) With respect to the Reimbursement Agreement, the Bank
reserves the right to approve or disapprove, in its sole and
absolute discretion, construction draws on the Lansing
Facility during the Forbearance Period; provided, however,
that the foregoing notwithstanding, the Bank expressly
consents to and agrees to the payment of amounts due to L.D.
Clark Building Co. only on the terms described in Article
VII below.
SECTION 2.03 Financial Information.
(A) The Company must provide the Bank with its final Form 10-Q
filed with the SEC for the quarter ending June 30, 2001 by the close of business
on August 14, 2001. The Company must provide the Bank with a monthly and year to
date financial statement for the month ending July 31, 2001 by the close of
business on September 15, 2001, and for each month subsequent thereto by the
last day of the following month. This financial statement will include a balance
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sheet, income statement and statement of cash flows and be in detail acceptable
to the Bank in all respects.
(B) The Bank (or any firm designated by it) shall have the
continuing right to conduct a field examination (an "Examination") at any
collateral location at any reasonable time, upon reasonable advance notice, and
without hindrance or delay, to inspect, audit, check and make extracts from the
Company's books, records, journals, orders, receipts and any correspondence and
other data relating to the collateral, to the Company's business or to any other
transactions between the parties hereto. The Company will promptly reimburse the
Bank for the cost of all Examinations at the rate of $750 per day ("Examination
Fees") plus out of pocket expenses, provided, however, that the Company's
obligation to reimburse the Bank on account of the Examination Fees shall not
exceed the sum of $12,000.00 on an annual basis beginning on the date hereof.
The amount of the first Examination Fees, when paid by the Company, shall be a
credit against the Forbearance Fee.
SECTION 2.04 Collateral Reserve Account. On or before the close of
business on August 31, 2001, the Company shall establish and thereafter maintain
with the Bank a Collateral Reserve Account into which the Company shall transfer
and deliver all cash, checks, drafts, items and other instruments for the
payment of money which it now has or may at any time hereafter receive in full
or partial payment for or proceeds of inventory or accounts receivable and,
pending such transfer and delivery, the Company shall be deemed to hold same in
trust for the benefit of the Bank. The Company shall not be entitled to withdraw
funds on deposit in the Collateral Reserve Account after its inception without
the prior written consent of the Bank; provided, however, that at any time
during which collected funds exist on deposit in the Collateral Reserve Account,
the Bank may withdraw such deposits, or any portion thereof, therefrom, for
application against the Company's obligations to the Bank in such manner as the
Bank, in its sole discretion, may determine. Notwithstanding the foregoing
however, so long as no default exists under the terms of the Loan Agreements,
the Loan Documents and this Forbearance Agreement (other than the Declared
Defaults), the Bank agrees to settle with the Company as to the amount of
availability under the line of credit after the foregoing application, on a
daily basis, on each business day. The Company irrevocably designates and
appoints the Bank as its true and lawful attorney-in-fact to endorse for
collection any checks, drafts, notes or other instruments received in payment of
or on account of any collateral hereafter coming into the Bank's possession and
control, whether pursuant to the Collateral Reserve Account or otherwise, but
the Bank shall not be under any duty to exercise any such authority or power or
in any way be responsible for the collection of any such collateral.
ARTICLE III
AGREEMENTS OF THE BANK
Subject to the satisfaction of the conditions precedent contained in
Article IV of this Forbearance Agreement, the Bank agrees as follows:
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SECTION 3.01 Forbearance. During the Forbearance Period, so long as the
Company complies with the terms of this Forbearance Agreement, and except as
explicitly stated herein, and subject to the satisfaction of the conditions
precedent contained in Article IV of this Forbearance Agreement, the Bank agrees
that it will forbear from exercising its rights and remedies against the Company
under the Loan Agreements, the Loan Documents and under applicable law until
after the expiration of the Forbearance Period.
ARTICLE IV
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE BANK
The obligations of the Bank under Article III hereof are subject to the
satisfaction of the following conditions precedent (except to the extent
expressly waived or modified by the Bank in writing):
SECTION 4.01 Forbearance Agreement. The Bank shall have received fully
executed counterparts of this Forbearance Agreement from the Company.
SECTION 4.02 Representations and Warranties. Each of the
representations and warranties contained in Article V of this Forbearance
Agreement shall be true and correct in all material respects.
SECTION 4.03 Authorization. If requested by the Bank, the Bank shall
have received true copies of all consents necessary for the execution, delivery
and performance of this Forbearance Agreement and all corporate resolutions of
the Company authorizing the transactions contemplated by this Forbearance
Agreement.
SECTION 4.04 No Termination Event. No Termination Event shall occur
immediately upon execution of this Forbearance Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Forbearance Agreement, the
Company acknowledges, represents and warrants the following to the Bank, and the
Company hereby waives and agrees to be estopped from asserting any legal or
factual claim against the Bank contrary to the following:
SECTION 5.01 Status of Default. The Company is in default under the
terms of the Loan Agreements and the Loan Documents, as provided in the Default
Notice, and the Company does not have any defenses, legal or equitable, to the
payment of the amounts outstanding in regard to the Loan Agreements.
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SECTION 5.02 Existences. The Company is a corporation, duly formed and
validly existing under the laws of the Commonwealth of Virginia.
SECTION 5.03 Authority, Noncontravention, Enforceability. This
Forbearance Agreement constitutes the legal, valid and binding obligation of the
Company, enforceable against it in accordance with its terms (except as the
enforcement of remedies may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium and similar laws affecting creditors rights generally and
to general principles of equity). The execution and delivery of, and performance
under, this Forbearance Agreement is within the Company's power and authority,
without the joinder or consent of any other person or entity, and have been duly
authorized by all requisite action and are not in contravention of law or the
provisions of the Company's charter, bylaws or other organizational documents or
of any indenture, agreement or undertaking to which the Company is a party or by
which it is bound.
SECTION 5.04 Entire Agreement. Other than this Forbearance Agreement,
and other than that certain temporary waiver letter between the Company and the
Bank dated as of May 23, 2001, which is superceded by the terms of this
Forbearance Agreement, as of the date hereof, there exist no understandings,
course of conduct or course of dealing among the parties hereto, or any of them,
which has altered or could alter the terms of the Loan Agreements, this
Forbearance Agreement, the Loan Documents executed and delivered in connection
herewith or therewith, or which would preclude the Bank from enforcing its legal
rights and pursuing its legal remedies under such documents and applicable law.
SECTION 5.05 Oral Agreements and Negotiations. Although there have been
meetings and discussions with the Bank regarding the Loan Agreements and the
documents relating thereto, the Company acknowledges that (i) nothing said or
done by the Bank in connection with such negotiations and/or discussions shall
be binding on the Bank or shall be the basis of any claim against the Bank
regarding the Loan Agreements, or the Loan Documents unless expressly
incorporated into the terms of this Forbearance Agreement; and (ii) it has not
relied on any statements or actions by the Bank or any of its agents or
attorneys regarding the Loan Agreements, or the Loan Documents except those
specifically incorporated into this Forbearance Agreement.
SECTION 5.06 No Defenses; No Waiver of Defaults or Events of Default.
The Company does not have any claims, actions, causes of action, defenses,
counterclaims or set-offs of any kind or nature with respect to the Loan
Agreements, or the Loan Documents, against the Bank or any of its respective
officers, directors, employees, agents or attorneys, which it can or could
assert in connection with the events occurring on or prior to the date of this
Forbearance Agreement. The Company agrees that no default or event of default
now existing under the Loan Agreements or any documents executed in connection
therewith shall be waived by this Forbearance Agreement and that all of the
Bank's rights and remedies are expressly reserved to them, except as provided
herein.
SECTION 5.07 Consents and Approvals. No action, consent or approval of,
or registration or filing with, or any other action by any governmental
authority or of any person is
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required in connection with the execution, delivery and performance by the
Company of this Forbearance Agreement.
SECTION 5.08 Litigation. Except for the suit by L.D. Clark Building Co.
("L.D. Clark") filed in the Circuit Court for the County of Eaton, Michigan on
or about July 9, 2001 against the Company and the Bank, File No. 01-913-C2 (the
"L.D. Clark Suit"), there is no action, suit or proceeding at law or in equity
or by or before any court or governmental authority now pending against or
affecting the Company or its assets or rights which, if adversely determined,
could have a material adverse effect on the Company's ability to perform its
obligations under this Forbearance Agreement.
ARTICLE VI
AFFIRMATIVE COVENANTS
The Company covenants and agrees with the Bank, so long as the Bank's
forbearance hereunder shall remain in effect, or the obligations under the Loan
Agreements shall remain unpaid, to:
SECTION 6.01 Borrowing Base Certificates. Provide the Bank weekly the
borrowing base certificate contemplated hereby, or at such other time as
specifically provided in Section 2.02(E) hereof.
SECTION 6.02 Payments. Notwithstanding the Declared Defaults, the
Company shall make all payments due on the note evidencing the line of credit as
provided therein, and as may be required under, or in the implementation or
exercise of, the provisions and terms hereof.
SECTION 6.03 Financial Information. Deliver or cause to be delivered to
the Bank such information concerning the business, properties or financial
condition of the Company as the Bank shall reasonably request from time to time.
SECTION 6.04 Notice of Termination Event. Give the Bank prompt written
notice of any Termination Event.
SECTION 6.05 Further Assurances. Execute and deliver, or cause to be
executed and delivered, all documents and instruments, in form and substance
satisfactory to the Bank and its counsel, necessary, in the opinion of such
counsel, to perfect and maintain continuously all of the Bank's liens on any
collateral securing the Company's obligations to the Bank at such time or times
as the Bank shall reasonably request.
ARTICLE VII
SALE OF LANSING FACILITY; REDEMPTION OF BONDS
SECTION 7.01 Sale of Lansing Facility. The Bank acknowledges that the
Company is negotiating the sale of the Lansing Facility to a third party
purchaser. If such sale closes before the
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expiration of the Forbearance Period, and if the terms, conditions and date of
closing of such sale are agreeable to the Bank in its sole discretion, then in
connection with such sale of the Lansing Facility, the Bank covenants and agrees
that it will upon closing (i) provide its written consent to the sale of the
Lansing Facility to the extent required under the Loan Agreements, (ii) release
any security interest, mortgage or other lien on the Lansing Facility (including
land, building, fixtures and other assets directly related to the Lansing
Facility and conveyed to the purchaser) and on the cash proceeds of the sale;
and (iii) provide its written consent to the payment of construction draws and
other amounts owed by the Company to L.D. Clark, from the proceeds of such sale,
for work performed on the Lansing Facility. The net cash proceeds from the sale
of the Lansing Facility after payment of L.D. Clark shall be paid to the
Company.
SECTION 7.02. Redemption of Bonds. The Company agrees that in
connection with the sale of the Lansing Facility it will take all necessary
action to redeem all of the Bonds (as defined in the Reimbursement Agreement)
issued by the Michigan Strategic Fund to finance the construction of the Lansing
Facility; provided, however, that the Company shall not be obligated to redeem
all of the Bonds if (i) a sale of the Lansing Facility is not consummated or
(ii) the purchaser of the Lansing Facility agrees to assume the Bonds and the
Bank either consents to the assumption or is released from all of its
obligations under the Loan Documents with respect to the Bonds. The Company will
commence the redemption of the Bonds promptly upon execution of a definitive
purchase agreement for the sale of the Lansing Facility and will effect the
redemption of the Bonds prior to the closing of the sale of the Lansing
Facility. The Bank hereby consents to the redemption of the Bonds and agrees to
provide all other necessary consents to third parties relating to such
redemption. The parties hereto acknowledge that it is anticipated that the Bank
shall seek reimbursement of amounts due from the Company upon redemption of the
Bonds from (i) the escrowed proceeds derived from the issuance of the Bonds,
believed to be in the current approximate amount of $2.1 million, and (ii) the
funds in the Shortfall Account described in Section 7.03 hereof; the Bank
reserves all rights, however, to seek reimbursement from the Company pursuant to
the terms of the Loan Agreements, the Loan Documents and applicable law.
SECTION 7.03 Shortfall Account. To facilitate the redemption of the
Bonds, the Company has established, and agrees to maintain, an account at the
Bank, holding the approximate sum of $328,000.00 (the "Shortfall Account"). The
funds in the Shortfall Account represent proceeds of the Bank's collateral, and
are subject to the Bank's liens securing the Company's obligations outstanding
under the Loan Agreements and the Loan Documents. The Company and the Bank
acknowledge and agree that, during the Forbearance Period, (i) the Shortfall
Account shall be used to pay the Bank amounts which are or may become due under
the Reimbursement Note and/or on account of amounts drawn on the Letter of
Credit, and (ii) in the event that any amounts remain in the Shortfall Account
after payment in full of amounts which are or may become due under the
Reimbursement Note and/or on account of amounts drawn on the Letter of Credit,
then, and only then, shall any such excess be remitted to the Company. After the
Forbearance Period, the Bank shall be entitled to exercise all rights and
remedies regarding the Shortfall Account pursuant to the Loan Agreements, the
Loan Documents and under applicable law. In any event, the Company shall remain
liable to the Bank for amounts which are or may become due under the
Reimbursement Note and/or on account of amounts drawn on the Letter of Credit.
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SECTION 7.04 Exception to Forbearance. Notwithstanding the forbearance
granted herein or any other provision hereof, the Bank reserves, and does not
waive or forbear from exercising, all rights to exercise its remedies under the
Loan Agreements and the Loan Documents, including, without limitation, the
Reimbursement Agreement, and pursuant to applicable law, pertaining only to (i)
the redemption, calling or tendering of the Bonds, and (ii) the collection of
amounts which are or may become due under the Reimbursement Note and/or on
account of amounts drawn on the Letter of Credit as provided herein.
ARTICLE VIII
TERMINATION EVENTS
SECTION 8.01 Termination Events. Upon the occurrence of any of the
following events, the Bank shall be immediately relieved of its agreements under
this Forbearance Agreement, and the Bank, at its option, may immediately pursue
any and all remedies, legal and equitable, available to them under the Loan
Agreements, the Loan Documents, applicable law and/or hereunder:
a. the Company fails to comply with any affirmative
covenant, agreement, obligation, term or condition of
this Forbearance Agreement; or
b. if any monetary or non-monetary default first occurs
subsequent to the date hereof, in the performance of
any of the terms of the Loan Agreements or any of the
Loan Documents, pursuant to the terms thereof (other
than Section 4.3(c) of the Reimbursement Agreement,
Section 5.8 of the Reimbursement Agreement with
respect to the filing of federal and state corporate
income tax returns and the assessment of penalties
and interest on certain payroll taxes, Sections
4.3(d) and 5.9 of the Reimbursement Agreement with
respect to the L.D. Clark Suit or arising out of the
L.D. Clark Suit, Sections 6.1(a) and (d) of the
Reimbursement Agreement with respect to the 30 day
time period and certifications set forth therein,
Sections 5.18 and 7.4 of the Reimbursement Agreement
to the extent such Lien arises out of or is related
to the L.D. Clark Suit, Section 6.8 of the
Reimbursement Agreement with respect to the
assessment of penalties and interest on certain
payroll taxes, Section 7.5 of the Reimbursement
Agreement with respect to Lansing inventory
adjustments, Section 7.12 of the Reimbursement
Agreement in connection with any waiver of required
notice to the bondholders or trustee, Sections 7.13,
7.14 and 7.15 of the Reimbursement Agreement,
Sections 8.1(k) and (l) of the Reimbursement
Agreement, Section 8.1(m) of the Reimbursement
Agreement with respect to the assessment of penalties
and interest on certain payroll taxes and amounts
that may be levied for noncompliance with Form 5500
filing obligations under ERISA, Section 8.1(p) of the
Reimbursement Agreement, and all corresponding
provisions, if any, of the other Loan Documents); or
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c. any representation or warranty made in this
Forbearance Agreement shall prove to have been false
or misleading in any material respect when made; or
d. the results of any Examination differs materially
from the borrowing base certificates then currently
being provided by the Company to the Bank; or
e. the Company shall (i) voluntarily commence any
proceeding or file any petition seeking relief under
Title 11 of the United States Code or any other
federal, state or foreign Bankruptcy, insolvency or
similar law, (ii) consent to the institution of, or
fail to controvert in a timely and appropriate
manner, any such proceeding or the filing of any such
petition, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian,
sequestrator or similar official under bankruptcy,
insolvency or similar law, for it or for a
substantial part of its property, (iv) file an answer
admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, or
(vi) take voluntary action for the purpose of
effecting any of the foregoing; or
f. an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of
competent jurisdiction seeking (i) relief in respect
of the Company under Title 11 of the United States
Code or any other federal, state or foreign
bankruptcy, insolvency or similar law, (ii) the
appointment of a receiver, trustee, custodian,
sequestrator or similar official for the Company for
a substantial part of its property or (iii) the
winding-up or liquidation of the Company, and such
proceeding is not dismissed or stayed within forty
(40) days.
SECTION 8.02 Exercise of Remedies. Upon the expiration of the
Forbearance Period, the Bank shall be entitled to exercise any of its rights and
remedies, including without limitation, remedies under this Forbearance
Agreement, the Loan Agreements, or any Loan Documents, and under applicable law,
and the Bank shall remain entitled to the benefit of each and every other
provision of this Forbearance Agreement which shall remain in effect and
enforceable against the Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 No Waiver. Nothing in this Forbearance Agreement shall be
construed as a waiver by the Bank of any existing defaults known to the Bank or
future defaults under the Loan Agreements, or any Loan Documents, or any rights
the Bank may have to enforce the terms thereof or exercise their rights and
remedies thereunder or under applicable law except for the Bank's express
agreements under Article III of this Forbearance Agreement.
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SECTION 9.02 No Modification. This Forbearance Agreement is not
intended to, and does not, modify, alter, amend or change any of the Bank's
rights under the Loan Agreements, or any of the Loan Documents, except as herein
expressly provided, and is not intended to, and does not, constitute a novation
or release of the agreements or obligations under such documents. The Loan
Agreements, and the Loan Documents otherwise remain in full force and effect in
accordance with their terms. In the event of any conflict in the terms of such
documents with the terms of this Forbearance Agreement, the terms of this
Forbearance Agreement shall govern.
SECTION 9.03 No Amendments. This Forbearance Agreement may not be
supplemented, changed, waived, discharged, modified or amended except by written
instrument executed by the parties hereto.
SECTION 9.04 Survival of Agreements. In the event that all amounts
which are or may become due under the Reimbursement Note and/or on account of
amounts drawn on the Letter of Credit are paid to the Bank and/or that the Bonds
are redeemed in full, then the representations, warranties, affirmative
covenants, negative covenants, events of default, remedies, and other agreements
of or applicable to the Company contained in the Loan Agreements and the Loan
Documents, including, without limitation, the Reimbursement Agreement, and
which, by the terms of the Loan Agreements and/or the Loan Documents have
previously applied to the line of credit, shall survive and remain in full force
and effect, unless otherwise indubitably satisfied by the Company, to the extent
that such provisions would not otherwise remain in effect pursuant to the terms
of the Loan Agreements and the Loan Documents.
SECTION 9.05 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, THE
COMPANY HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS FORBEARANCE AGREEMENT OR
ANY LOAN DOCUMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(VERBAL OR WRITTEN), OR ACTIONS OF THE BANK.
SECTION 9.06 Release. The Company represents and warrants that it has
no claims, actions, causes of action, defenses, counterclaims or setoffs of any
kind or nature which it can or could assert against the Bank in connection with
the making, closing, administration, collection or enforcement by the Bank of
the Loan Agreements, the Loan Documents, this Forbearance Agreement or any
related agreements. In the event the Company has any claims, actions, causes of
action, defenses, counterclaims or setoffs of any kind or nature now existing,
whether known or unknown, which it now or hereafter may assert against the Bank
arising on or before the date hereof or based on facts and circumstances which
occurred on or prior to the date hereof in connection with the making, closing,
administration, collection or enforcement by the Bank of the Loan Agreements,
the Loan Documents, this Forbearance Agreement or any related agreements (the
"Claims"), then by executing this Forbearance Agreement, the Company forever
waives and releases the Bank, and its officers, directors, attorneys, agents,
representatives, employees, shareholders, parent corporations, subsidiaries,
affiliates, successors and assigns (individually, a
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"Released Party"; collectively, the "Released Parties") from the Claims. In
addition, the Company represents and warrants that it will not commence, join
in, prosecute, or participate in any suit or other proceeding in a position that
is adverse to the Bank related to the Claims. This agreement and covenant on the
part of the Company is contractual, and not a mere recital, and the Company
acknowledges and agrees that no liability whatsoever is admitted on the part of
any party, except the Company's indebtedness under the Loan Agreements and the
Loan Documents, and that all agreements and understandings between the parties
hereto are embodied in the Loan Agreements, the Loan Documents and this
Forbearance Agreement. Notwithstanding the foregoing or any other provision of
this Forbearance Agreement, the Company may assert defenses against L.D. Clark
in the L.D. Clark Suit based on the alleged actions of the Bank prior to the
date hereof, and may seek to compel arbitration of the L.D. Clark Suit;
provided, however, that in so doing, the Company seeks no affirmative relief
against the Bank in regard thereto; the Bank makes no admissions in regard
thereto and reserves all rights to dispute or object to the assertions and
actions of the Company.
SECTION 9.07 Governing Law. This Forbearance Agreement has been
prepared, is being executed and delivered, and is intended to be performed in
the Commonwealth of Virginia and the substantive laws of Virginia and the
applicable federal laws of the United States of America shall govern the
validity, construction, enforcement and interpretation of this Forbearance
Agreement.
SECTION 9.08 Integration; Inconsistent Provisions. The Loan Agreements,
the Loan Documents and this Forbearance Agreement constitute the entire
agreement between the parties, and supersede all previous negotiations,
discussions and agreements between the parties, and no parol evidence of any
prior or other agreement shall be permitted to contradict or vary its or their
terms. There are no promises, terms, conditions or obligations other than those
contained in the Loan Agreements, the Loan Documents and this Forbearance
Agreement. To the extent any provision of any document is inconsistent with any
provision of this Forbearance Agreement, the terms of this Forbearance Agreement
shall control.
SECTION 9.09 Not Exclusive. No right, power or remedy conferred on the
Bank by this Forbearance Agreement shall be exclusive of any other right, power
or remedy now or hereafter available to the Bank by agreement or at law or in
equity, by statue or otherwise.
SECTION 9.10 Binding Effect and Assignability. This Forbearance
Agreement shall be binding upon and inure to the benefit of the Company and the
Bank and their respective successors, assigns, heirs and legal representatives;
provided, however, that the Company may not, without the prior written consent
of the Bank, assign any rights, powers, duties or obligations thereunder.
SECTION 9.11 Survival. This Forbearance Agreement and all
representations, warranties, covenants, provisions, terms conditions and
agreements contained in this Forbearance Agreement or made in writing by or on
behalf of the parties hereto in connection with the transactions contemplated in
this Forbearance Agreement shall survive the closing of the transactions
contemplated by this Forbearance Agreement.
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SECTION 9.12 Multiple Counterparts. This Forbearance Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same agreement, and any of the parties hereto may execute
this Forbearance Agreement by signing any such counterpart.
SECTION 9.13 Further Assurances. The Company and the Bank each agree to
execute any additional documents which are reasonably necessary to consummate
the transactions contemplated by this Forbearance Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Forbearance
Agreement to be duly executed as of the day and year first above written.
WACHOVIA BANK, N.A.
By: /s/ Kevin R. Combs (SEAL)
-----------------------------
Name: Kevin R. Combs
---------------------------
Title: Senior Vice Presicent
--------------------------
OPEN PLAN SYSTEMS, INC.
By: /s/ Anthony F. Markel (SEAL)
-----------------------------
Name: Anthony F. Markel
---------------------------
Title: Chairman of the Board
--------------------------
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