EXHIBIT 10.5
AMENDMENT NO. 4 TO FORBEARANCE AGREEMENT
This Amendment No. 4 (the "Fourth Amendment") dated as of April 1,
2006 to Forbearance Agreement (the "Forbearance Agreement") dated as of November
27, 2002 by and between Xxxxxx + Xxxxxx, Inc., a Delaware corporation, located
at 00 Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxx 00000 (the "Borrower"), North Ridge
Securities Corp. ("North Ridge"), Prime Capital Services, Inc. ("Prime"), the
following guarantors: Prime Financial Services, Inc., North Shore Capital
Management Corp. ("North Shore"), Asset & Financial Planning, Ltd., x0000.xxx,
inc, G + C Schlager & Associates Inc., G + C Mortgage Line Inc. (the "Corporate
Guarantors"), Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxx and Xxxxxxx Xxxx (the "Individual
Guarantors" and collectively, with the Corporate Guarantors, the "Guarantors"
and individually, a "Guarantor") and Wachovia Bank, National Association,
formerly known as First Union National Bank, having an office at 000 Xxxxx Xxxx,
Xxxxxx, Xxx Xxxxxx 00000 (the "Bank").
W I T N E S S E T H:
WHEREAS, the Bank, the Borrower, North Ridge, Prime and the
Guarantors entered into a certain Revolving Credit and Term Loan Agreement dated
as of December 27, 2001 ("Loan Agreement"), pursuant to which the Bank made
available certain credit facilities described therein (the Loan Agreement,
together with all of the security agreements, assignments and any other
documents given by the Borrower, Prime and/or Guarantors in favor of the Bank,
hereinafter the "Loan Documents");
WHEREAS, the Bank extended a credit facility to the Borrower for
working capital pursuant to a Revolving Credit Note dated as of December 27,
2001 in the original principal amount of $2,000,000. (the "Revolving Credit
Note");
WHEREAS, the Bank extended a term credit facility to the Borrower
pursuant to a Term Loan Note dated as of December 27, 2001 in the original
principal sum of $5,000,000. (the "Term Loan Note" and together with the
Revolving Credit Note, the "Loan");
WHEREAS, the Borrower was in default of certain financial covenants
described in that certain Notice of Default and Demand for Payment dated
September 19, 2002 from counsel to the Bank to Borrower, Prime and Guarantors;
WHEREAS, as a result of such default, the obligations under the Loan
were due and payable;
WHEREAS, Borrower and Guarantors were unable to repay the Loan which
was due and payable and requested the Bank forbear from enforcing its rights
under the Loan Documents;
WHEREAS, the Bank agreed to so forbear and as a result Borrower,
Prime and the Guarantors entered into the Forbearance Agreement;
WHEREAS, the Borrower informed the Bank that it would be unable to
repay the Loan on the Maturity Date as set forth in the Forbearance Agreement
and requested the Bank further forbear and extend the time of payment for the
Loan and as a result Borrower, Prime, North Ridge and the Guarantors (with the
exception of Xxxxxx Xxxxxxxxx) entered into an Amendment to Forbearance
Agreement, dated as of June 18, 2003 (the "First Amendment") which inter alia,
extended the maturity date to July 1, 2004 (the "First Extended Maturity Date");
WHEREAS, the Borrower informed the Bank that it would be unable to
repay the Loan on the First Extended Maturity Date as set forth in the First
Amendment and requested the Bank further forbear and extend the time of payment
for the Loan and as a result Borrower, Prime and the Guarantors (with the
exception of Xxxxxx Xxxxxxxxx) entered into an Amendment No. 2 to Forbearance
Agreement, dated as of March 4, 2004 (the "Second Amendment") which inter alia,
extended the maturity date to July 1, 2005 (the "Second Extended Maturity
Date");
WHEREAS, the Borrower informed the Bank it would be unable to repay
the Loan on the Second Extended Maturity Date as set forth in the Second
Amendment and requested the Bank to further forbear from enforcing its rights
under the Loan Documents and to further extend the time of payment for the Loan
to and including March 10, 2008 (the "Third Extended Maturity Date") and the
Bank agreed to so forbear, absent its demand, under the terms and conditions set
forth in that certain Amendment No. 3 to Forbearance Agreement, dated as of
March 1, 2005 (the "Third Amendment") by and between Borrower, Prime and certain
Guarantors (with the exception of Xxxxxx Xxxxxxxxx);
WHEREAS, the Borrower has (i) informed the Bank that it is unable to
make the payments required (a) under the Third Amendment and has requested the
Bank to forbear from enforcing its rights under the Loan Documents and modify
the monthly payment amount due on the Loan and further extend the Third Extended
Maturity Date of the Loan to and including October 10, 2008 (the "Extended
Maturity Date") and (b) in that certain consent letter issued by the Bank to the
Borrower dated as of August 5, 2005 (the "Consent Letter") and (ii) requested
that the Bank release its interest in the $862,000 Promissory Note made by
Xxxxxx X. Xxxx to Borrower dated January 29, 2004 (the "Note"), which Note is
collaterally assigned to the Bank;
WHEREAS, the Borrower has advised the Bank that it will comply with
a repayment schedule to repay the Bank as set forth herein;
WHEREAS, the Bank has agreed to so forbear, absent its demand, under
the terms and conditions set forth in this Fourth Amendment;
WHEREAS, the Borrower has informed the Bank that Xxxxxx Xxxxxxxxx
will not sign this Fourth Amendment.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Bank to continue the existing loan facility and extend payment of the
Loan, the Borrower and undersigned Guarantors hereby agree with the Bank as
follows:
Section 1. Confirmation of Amount Due. The Borrower, and the
undersigned Guarantors represent and warrant that as of April 11, 2006 they are
legally, validly and enforceably indebted to the Bank under the Revolving Credit
Note in the principal amount of $739,929.07 and under the Term Loan Note in the
principal amount of $849,084.00, both of which are due and payable without
offset, claim, defense, counterclaim or right of recoupment.
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Section 2. Article Amendments.
(a) Article II, B of the Forbearance Agreement, as amended by the First
Amendment, Second Amendment and Third Amendment, shall be deleted in its
entirety and replaced with the following:
"B. Repayment of Loan. The Borrower shall make payments to the Bank:
(i) with respect to the Revolving Credit Note, absent
demand, accrued interest monthly as set forth below on
the 10th day of each month beginning on April 10, 2006
and continuing on the 10th day of each month thereafter
until October 10, 2008 (the "Extended Maturity Date"),
plus principal payments in reduction of the Revolving
Credit Note, in the principal amount of $25,000. on the
10th day of each month beginning April 10, 2006 and on
the 10th day of each month thereafter until the Extended
Maturity Date and the remaining principal balance and
any accrued interest on the Extended Maturity Date; and
(ii) with respect to the Term Loan Note, absent demand,
accrued interest monthly as set forth below on the 10th
day of each month beginning on April 10, 2006 and
continuing on the 10th day of each month thereafter
until the Extended Maturity Date, plus principal
payments in reduction of the Term Loan Note in the
principal amount of $25,000. on the 10th day of each
month beginning April 10, 2006 and on the 10th day of
each month thereafter until the Extended Maturity Date
and the remaining principal balance and any accrued
interest on the Extended Maturity Date."
Section 3. North Ridge Note. Upon completion by the Borrower, to the
satisfaction of the Bank, of the conditions precedent set forth below, the Bank
will deliver to the Borrower the original Note and cancel the collateral
assignment.
Section 4. Bullet Payment due March 10, 2006. Provided Borrower
completes the conditions precedent set forth below, to the satisfaction of the
Bank, the Bank hereby agrees to waive the extra principal payment due on or
before April 1, 2006 in the sum of $74,205.42 as otherwise required in the
Consent Letter.
Section 5. Conditions Precedent to This Fourth Amendment. The
effectiveness of this Fourth Amendment shall be expressly subject to receipt by
the Bank of the following items:
(a) a fully executed Fourth Amendment;
(b) payment of an extension fee to the Bank in the amount of $10,000.
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(c) payment of all fees and expenses of counsel to the Bank in connection
with the negotiation and preparation of this Fourth Amendment; and
(d) such other agreements and instruments as the Bank reasonably deems
necessary to carry out the terms and provisions of this Fourth Amendment.
Section 6. Representations True; No Default. The Borrower, Prime and
the undersigned Guarantors hereby represent and warrant that:
(a) Except as otherwise expressly disclosed to the Bank in writing by the
Borrower, any and all of the representations and warranties contained in the
Forbearance Agreement or any of the other Loan Documents are true and correct in
all material respects on and as of the date hereof as though made on and as of
such date.
(b) Except as otherwise expressly disclosed to the Bank in writing by the
Borrower, no event has occurred and is continuing which constitutes a Default or
an Event of Default under the Forbearance Agreement or under any of the other
Loan Documents or which upon the giving of notice or the lapse of time or both
would constitute such Default or Event of Default.
(c) No material adverse change has occurred in the Borrower's financial
status since the execution of the Forbearance Agreement;
(d) There is no pending or threatened action or proceeding affecting the
Borrower before any court, governmental agency or arbiter, which may materially
affect the financial condition or operations or prospects of the Borrower or
which purports to affect the legality, validity or enforceability of this Fourth
Amendment, or the Forbearance Agreement, as amended by the First Amendment, the
Second Amendment, the Third Amendment and this Fourth Amendment, or the Loan,
except as described in Schedule 1 hereto.
(e) No UCC liens have been filed against the Borrower or Prime since the
execution of the Third Amendment except as described in Schedule 2 hereto.
(f) No judgments have been entered against either the Borrower or Prime
since the execution of the Third Amendment, except as described in Schedule 3
hereto.
Section 7. Ratification. Except as expressly amended hereby, the
Forbearance Agreement, the First Amendment, the Second Amendment, the Third
Amendment and the other Loan Documents shall remain in full force and effect.
The Forbearance Agreement, First Amendment, the Second Amendment and the Third
Amendment, as hereby amended, and all rights and powers created thereby or
thereunder and under the other Loan Documents are in all respects ratified and
confirmed and remain in full force and effect. Borrower, Prime and the
undersigned Guarantors hereby acknowledge and affirm: (i) the continuing
validity of the Forbearance Agreement, First Amendment, Second Amendment and
Third Amendment; (ii) all of the terms, conditions and obligations contained in
the Forbearance Agreement, First Amendment, Second Amendment and Third Amendment
are and shall remain in full force and effect, except as hereby amended; (iii)
that the Forbearance Agreement, as amended, is a legal, valid and binding
obligation of Borrower, Prime and Guarantors, and the obligations and
liabilities thereunder shall not be diminished by the execution of this Fourth
Amendment or by any of the terms, provisions or conditions of this Fourth
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Amendment; (iv) all appropriate corporate authorizations have been obtained for
this execution of this Fourth Amendment; and (v) that this Fourth Amendment is
executed by Borrower as an inducement to the Bank to enter into this Fourth
Amendment, and with the knowledge that the Bank shall rely on the statements
made herein when executing this Fourth Amendment. The failure of Xxxxxx
Xxxxxxxxx to execute this Fourth Amendment shall not, and is not intended to, in
any way whatsoever release or discharge Xxxxxx Xxxxxxxxx from his obligations
and liabilities to the Bank pursuant to that certain Joint and Several Guaranty
of Payment dated as of December 27, 2001.
Section 8. Definitions and References. Capitalized terms not
otherwise defined in this Fourth Amendment and used herein and which are defined
in the Loan Agreement or in the other Loan Documents shall have the meanings
herein as therein ascribed to them. The term "Agreement" as used in the other
Loan Documents or any other instrument, document or writing furnished to the
Bank by Borrower shall mean the Loan Agreement as hereby amended.
Section 9. Expenses; Additional Information. The Borrower shall pay
to the Bank all reasonable and actual expenses incurred by the Bank since the
execution of the Forbearance Agreement and in connection with the preparation,
negotiation and execution of this Fourth Amendment and authorizes the Bank to
deduct such expenses from its account at the Bank.
Section 10. Notices. All Notices and other communications provided
for hereunder shall be delivered in accordance with the terms of the Forbearance
Agreement.
Section 11. Successors and Assigns. This Fourth Amendment shall be
binding upon and inure to the benefit of the Bank and the Borrowers, Prime or
Guarantors and their respective successors and assigns, except that the
Borrowers, Prime and Guarantors may not assign or transfer any of its rights
under the Loan Documents, Forbearance Agreement, or this Fourth Amendment,
without the prior written consent of the Bank.
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Section 12. Miscellaneous. This Fourth Amendment (a) shall be
binding upon and inure to the benefit of Borrower and the Bank and their
respective successors, assigns, receivers and trustees (provided, however, that
Borrower shall not assign its rights and obligations hereunder without the prior
written consent of the Bank); (b) can be modified or amended only by a writing
signed by each party; (c) shall be governed by and construed in accordance with
the laws of the State of New York and the United States of America; (d) may be
executed in several counterparts, and by the parties hereto on separate
counterparts, and each counterpart, when so executed and delivered, shall
constitute an original agreement, and all such separate counterparts shall
constitute but one and the same agreement; and (e) together with the Forbearance
Agreement, First Amendment, Second Amendment, Third Amendment and Loan
Documents, embodies the entire agreement and understanding between the parties
with respect to the subject matter hereof and supersedes all prior agreements,
consents and understandings relating to such subject matter. The headings herein
shall be accorded no significance in interpreting this Fourth Amendment.
Borrower, Prime and Guarantors hereby acknowledge and agree that the Bank has
not made any representations to induce them to enter into this Fourth Amendment
except as expressly set forth herein and even if any such representations other
than those expressly set forth herein were made they were not relied on in
entering into this Fourth Amendment.
IN WITNESS WHEREOF, the undersigned, if a corporation, has caused
this Agreement to be executed by its respective officer thereunto duly
authorized, as of the date first above written.
Xxxxxx + Xxxxxx, Inc., as Borrower
By: /s/ Xxxxxxx Xxxx
------------------------------------
Xxxxxxx Xxxx
President
Wachovia Bank, National Association,
f/k/a First Union National Bank, as Bank
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Vice President
AGREED AND ACCEPTED:
/s/ Xxxxxxx Xxxx
----------------------------------
Xxxxxxx Xxxx, Individual Guarantor
/s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx, Individual Guarantor
Prime Capital Services, Inc.
By: /s/ Xxxxxxx Xxxx
-----------------------------
Xxxxxxx Xxxx
President
Prime Financial Services, Inc.
By: /s/ Xxxxxxx Xxxx
-----------------------------
Xxxxxxx Xxxx
President
Asset & Financial Planning, Ltd.
By: /s/ Xxxxxxx Xxxx
-----------------------------
Xxxxxxx Xxxx
President
x0000.xxx, Inc.
By: /s/ Xxxxxxx Xxxx
-----------------------------
Xxxxxxx Xxxx
President
G + C Schlager & Associates Inc.,
By: /s/ Xxxxxxx Xxxx
-----------------------------
Xxxxxxx Xxxx
President
G + C Mortgage Line Inc.
By: /s/ Xxxxxxx Xxxx
-----------------------------
Xxxxxxx Xxxx
President
COUNTY OF DUTCHESS,
STATE OF NEW YORK.
On the 20th day of March in the year 2006 before me, the
undersigned, a Notary Public in and for said State, personally appeared Xxxxxxx
Xxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
[ILLEGIBLE STAMP] /s/ Xxx X. Xxxxxxxxxxx
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Notary Public
COUNTY OF HILLSBOROUGH
STATE OF FLORIDA.
On the 27th day of March in the year 2006 before me, the
undersigned, a Notary Public in and for said State, personally appeared Xxxxx
Xxxxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
/s/ Xxxxxxxxx X. Xxxxx
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Notary Public
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XXXXXXXXX X. XXXXX
[LOGO] Notary Public - State of Florida
My Commission Expires Jan 25, 2009
Commission # DO 390201
Bonded by National Notary Assn.
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