Exhibit 10.6
FORBEARANCE AGREEMENT
This Forbearance Agreement ("Agreement") dated as of April
26, 2004 is made and entered into by and among Continental Global Group, Inc., a
Delaware corporation (the "Company"), N.E.S. Investment Co. ("N.E.S.")
and CFSC Wayland Advisors, Inc. ("Wayland").
BACKGROUND
A. Wayland is a holder of, or investment manager or advisor for certain
discretionary accounts that are holders or beneficial owners of, certain of the
Notes (as defined below).
B. The Company, Wayland and N.E.S. are in good faith negotiations regarding the
restructuring of the terms of the Notes (the "Potential Restructuring").
C. The Company and N.E.S. desire that Wayland forbear the exercise of any rights
and remedies under or with respect to the Notes owned or controlled by Wayland
while the parties are negotiating the restructuring of the terms of the Notes
and Wayland has agreed to such forbearance in accordance with the terms of this
Agreement.
NOW, THEREFORE, in consideration of the promises and mutual
agreements herein contained, the parties hereto, intending to be legally bound
hereby, hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement and not defined
elsewhere herein shall be defined as set forth below:
"Indenture" means the Indenture, dated as of April 1, 1997,
among the Company each Subsidiary Guarantor (as defined therein) and Norwest
Bank Minnesota, National Association, as trustee, relating to the Notes.
"Notes" means the Company's 11% Series A Senior Notes due 2007
and the Company's 11% Series B Senior Notes due 2007 issued pursuant to the
Indenture.
"Person" means any individual or any partnership, corporation,
joint venture, limited liability company or other unincorporated organization or
entity or any association, trust, or governmental unit.
"Transfer" means to directly or indirectly sell (through a
direct sale or otherwise), pledge, assign, encumber, grant a proxy, grant an
option with respect to, transfer or dispose of any participation or interest
(voting or otherwise) in or enter into an agreement, voting trust, commitment or
other arrangement to sell (through a direct sale or otherwise), pledge, assign,
encumber, grant a proxy, grant an option with respect to, transfer or dispose of
any participation or interest (voting or otherwise) in or the act thereof.
"Trustee" means the trustee under the Indenture.
"Wayland Notes" means Notes in the aggregate principal amount
set forth on Schedule I hereto.
2. Forbearance and Agreement Not to Transfer.
(a) So long as this Agreement remains in effect, Wayland hereby
agrees (i) to forbear from enforcing any and all of its rights
and remedies with respect to all defaults under the Notes or
the Indenture existing as of the date hereof, (ii) not to
instruct or direct the Trustee to enforce any of the rights
and remedies accruing to it under the Indenture or the Trust
Indenture Act of 1939, as amended, with respect to any default
under the Notes or the Indenture existing as of the date
hereof and (iii) to give a copy of this Agreement to the
Trustee and to inform the Trustee that it is not authorized to
take any action on behalf of Wayland that is inconsistent with
Wayland's agreements and obligations under this Agreement.
Wayland expressly consents to the Company's right to confirm
such actions with the Trustee.
(b) Wayland agrees, so long as this Agreement remains in effect,
not to Transfer any Wayland Notes, in whole or in part, unless
the transferee of such Transfer shall agree to be and shall
become bound by the terms of this Agreement with respect to
any Wayland Notes so transferred. Any Transfer of the Wayland
Notes in violation of the foregoing restriction shall be
deemed null and void ab initio.
3. Termination of Agreement. This Agreement shall terminate and
expire upon the earlier to occur of:
(i) mutual written consent of the Company, Wayland and N.E.S.;
(ii) 5:00 P.M. New York City time on May 31, 2004; or
(iii) delivery of notice pursuant to paragraph 16 hereof.
4. Representations and Warranties.
(a) Each of the signatories to this Agreement represents and
warrants to the other signatories to this Agreement that:
(i) it is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has
all requisite corporate, partnership or other power and
authority to enter into this Agreement and to carry out the
transactions contemplated by, and perform its respective
obligations under, this Agreement;
(ii) the execution, delivery and performance by it of this
Agreement do not and shall not (A) violate any provision of
law, order, rule or regulation applicable to it or its
certificate of incorporation or bylaws or other organizational
documents or (B) conflict with, result in the breach of or
constitute (with due notice or lapse of time or both) a
default under any material contractual obligations to which it
is a party or under its certificate of incorporation, bylaws
or other governing instruments;
(iii) the execution, delivery and performance by it of this
Agreement do not and shall not require any registration or
filing with, the consent or approval of, notice to, or any
other action with respect to, any Federal, state or other
governmental authority or regulatory body;
(iv) assuming the due execution and delivery of this Agreement by
each of the other parties hereto, this Agreement is the
legally valid and binding obligation of it, enforceable
against it in accordance with its terms; and
(v) it has been represented by counsel in connection with this
Agreement and the transactions contemplated by this Agreement
and confirms that its decision to execute this Agreement has
been based upon its independent investigation and evaluation
of the matters contemplated hereby.
(b) Wayland further represents, warrants and covenants to the
other signatories to this Agreement that, as of the date of
this Agreement, Wayland is the beneficial owner of, or the
investment adviser or manager for the beneficial owners of,
the aggregate principal amount of Notes set forth on Schedule
I hereto, with the sole power and authority to vote and
dispose of such Notes, and Wayland has no interest in, or
rights with respect to, any other Notes.
5. No Public Announcement. Wayland agrees that it shall not make
any announcement or disclosure regarding this Agreement or the
transactions contemplated hereby without the prior written
consent of the Company.
6. Good Faith. Each of the signatories to this Agreement agrees
to cooperate fully and in good faith with each other to
facilitate the performance by the parties of their respective
obligations hereunder and the effectuation of the Potential
Restructuring.
7. Amendments and Modifications. This Agreement shall not be
amended except by instrument in writing signed by each of the
parties hereto.
8. Further Assurances. Each of the signatories to this Agreement
hereby further covenants and agrees to execute and deliver all
further documents and agreements and take all further action
that may be reasonably necessary or desirable in order to
enforce and effectively implement the terms and conditions of
this Agreement.
9. Complete Agreement. This Agreement constitutes the complete
agreement among the signatories hereto with respect to the
subject matter hereof and supersedes all prior and
contemporaneous negotiations, agreements and understandings
with respect to the subject matter hereof. The provisions of
this Agreement shall be interpreted in a reasonable manner to
effect the intent of the signatories to this Agreement.
10. Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be (a)
transmitted by hand delivery, (b) mailed by first class,
registered or certified mail, postage prepaid, (c) transmitted
by overnight courier, or (d) transmitted by telecopy, and in
each case at the address set forth below:
If to the Company:
Continental Global Group, Inc.
438 Industrial Drive
Winfield, Alabama 35594
Attention: President
Telephone: (205) 487-6492
Facsimile: (205) 487-4233
With a copies to:
Squire, Sanders & Dempsey L.L.P.
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114-1304
Attention: David A. Zagore
Telephone: (216) 479-8610
Facsimile: (216) 479-8780
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, New York 10005-1413
Attention: Dennis F. Dunne
Telephone: (212) 530-5000
Facsimile: (212) 530-5219
If to N.E.S.:
N.E.S. Investment Co. 6140 Parkland Boulevard
Mayfield Heights, Ohio 44124 Attention: Robert
Tomsich Telephone: (440) 461-6000 Facsimile: (440)
449-3112
With a copy to:
Morris, Nichols, Arsht & Tunnell
P.O. Box 1347
Wilmington, Delaware 19899
Attention: A. Gilchrist Sparks, III
Telephone: (302) 658-9200
Facsimile: (302) 658-3989
If to Wayland:
CFSC Wayland Advisers, Inc.
12700 Whitewater Drive
Minnetonka, Minnesota 55343
Attention: Blake Carlson
Telephone: (952) 984-3051
Facsimile: (952) 984-3913
With a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention: Scott K. Charles
Telephone: (212) 403-1202
Facsimile: (212) 403-2202
Notices mailed or transmitted in accordance with the foregoing shall be deemed
to have been given upon receipt.
11. Governing Law. This Agreement shall be governed in all respects by the laws
of the State of New York applicable to contracts made and to be performed in the
State of New York without regard to any conflicts of law provision that would
require the application of the law of any other jurisdiction.
12. Specific Performance. It is understood and agreed by each of the signatories
to this Agreement that money damages would not be a sufficient remedy for any
breach of this Agreement by any party and each non-breaching party shall be
entitled to specific performance, injunctive, rescissionary or other equitable
relief as remedy for any such breach.
13. Headings. The headings of the sections, paragraphs and subsections of this
Agreement are inserted for convenience only and shall not affect the
interpretation hereof.
14. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the signatories to this Agreement and their respective
successors, permitted assigns, heirs, executors, administrators and
representatives.
15. Additional Notes. Nothing herein shall prohibit Wayland, or any of its
affiliates, funds or accounts (together, the "Affiliates"), from acquiring
beneficial or record ownership of any additional Notes (the "Additional Notes"),
subject to applicable securities laws, provided, however, that no such Affiliate
holding such Additional Notes shall commence an involuntary bankruptcy case
against the Company for so long as this Agreement remains in force and effect.
16. Fees and Expenses. The Company agrees to pay all reasonable out-of-pocket
fees and expenses of Wachtell, Lipton, Rosen & Katz, counsel to Wayland
("WLRK"), incurred by Wayland in the negotiation, execution and performance of
(i) this Agreement and (ii) the Potential Restructuring; provided, however, that
the Company may, in its sole discretion, upon written notice to Wayland,
terminate its obligations under this paragraph; provided further, that the
Company shall be responsible for any fees and expenses incurred by WLRK prior to
the delivery of such notice; and provided further, that, upon the delivery of
such notice, this Agreement shall be deemed terminated. WLRK agrees that it
shall provide notice to the Company at such time during any calendar month as
the aggregate amount of its fees and expenses reaches (i) $50,000 and (ii)
thereafter, each multiple of $50,000.
17. Venue. For so long as this Agreement remains in effect and in the event that
an involuntary case is commenced against the Company, Wayland agrees that it
shall not challenge any actions by the Company to change or otherwise transfer
venue of such action.
18. Confidentiality Agreement. Wayland acknowledges that it is subject to all
terms and conditions agreed to in that certain Confidentiality Agreement, dated
January 8, 2004, between the Company and Wayland, provided, however, that such
Confidentiality Agreement is hereby modified by changing the date of March 31,
2004 wherever it appears therein to May 31, 2004.
19. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
by facsimile shall be as effective as delivery of a manually executed
counterpart.
20. No Third-Party Beneficiaries. This Agreement shall be solely for the benefit
of the signatories to this Agreement, and no other Person shall be a third-party
beneficiary hereof. Nothing in this Agreement, express or implied, shall give to
any Person other than the parties hereto any benefit or any legal or equitable
right, remedy or claim under this Agreement.
21. Severability. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability without
affecting the validity, legality and enforceability of the remaining provisions
hereof; and the invalidity of a particular provision in a particular
jurisdiction shall not invalidate such provision in any other jurisdiction.
[Remainder of this page intentionally left blank. Signature
page follows.]
IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed and delivered by its duly authorized officers as of the
date first written above.
Continental Global Group, Inc.
By:
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Name:
Title:
CFSC Wayland Advisors, Inc.
By:
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Name:
Title:
N.E.S. INVESTMENT CO.
By:
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Name:
Title:
SCHEDULE I
Wayland Notes