FIRST AMENDMENT TO FIRST AMENDED AND RESTATED FORBEARANCE AGREEMENT AND FOURTH AMENDMENT TO LOAN AGREEMENT
EXHIBIT 10.12
FIRST
AMENDMENT TO FIRST AMENDED AND RESTATED FORBEARANCE AGREEMENT AND FOURTH
AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO FIRST AMENDED
AND RESTATED FORBEARANCE AGREEMENT AND FOURTH AMENDMENT TO LOAN AGREEMENT, dated
as of March 31, 2010, amends and supplements that certain First Amended and
Restated Forbearance Agreement and Fourth Amendment to Loan Agreement dated as
of December 8, 2009 (the "Forbearance Agreement") among Xxxxxxx Bank ("Lender"),
Jefferson Electric, Inc. ("Borrower"), Xxxxxx Xxxxx ("Guarantor") and Xxxxx X.
Xxxxx ("Xxxxx Xxxxx," and together with Borrower and Guarantor, the "Borrower
Parties").
RECITAL
Lender and Borrower Parties desire to
amend the Forbearance Agreement as follows.
AGREEMENTS
In consideration of the Recitals and
the agreements contained herein and in the Forbearance Agreement, as amended
hereby, Lender and Borrower Parties agree as follows:
1. Definitions and
References.
Except as otherwise defined herein,
capitalized terms used herein shall have the meanings set forth in the
Forbearance Agreement. Upon satisfaction of the conditions in section
3 herein, all references to the Forbearance Agreement in any documents related
to the Loan Agreement shall mean the Forbearance Agreement as amended by this
Amendment.
2. Amendments. The
Forbearance Agreement is amended by deleting the date "March 31, 2010" in each
place such date appears therein and inserting "April 30, 2010" in its
place.
3. Effectiveness of the
Amendment. This Amendment will not be effective until it shall
have been duly executed and delivered by Lender and Borrower
Parties.
4. No
Waiver. Borrower Parties agree that nothing contained herein
shall be construed as a waiver by Lender of (a) any existing or future default
or event of default under the Loan Documents (as defined in the Loan Agreement)
or the Forbearance Agreement or (b) the compliance by Borrower Parties with any
representation, warranty or covenant contained in the Loan Documents or the
Forbearance Agreement. No waiver of any provision of the Loan
Documents or the Forbearance Agreement by Lender has
occurred. Borrower Parties further agree that nothing contained
herein shall impair the right of Lender to require strict performance by
Borrower Parties of the Loan Documents and the Forbearance
Agreement.
5. Representations and
Warranties. Borrower Parties represent and warrant to Lender
that the execution and delivery of this Amendment: (a) are
within Borrower's power, (b) has been duly authorized by proper action on
the part of Borrower, (c) are not in violation of any applicable law or the
charter documents of Borrower, (d) are not in violation of the terms of any
agreement, restriction, or undertaking to any of the Borrower Parties is a party
or by which any of them is bound, and (e) do not require the approval or
consent of any governmental authority or any other person or party, other than
those obtained and in full force and effect.
6. No Commitment to Extend
Forbearance Period. Borrower Parties acknowledge and agree
that Lender has not agreed to forbear beyond the termination of the Forbearance
Period and that this Amendment shall not constitute an agreement by or require
Lender to extend the Forbearance Termination Date beyond April 30, 2010, grant
additional forbearance periods, extend the time for payment of any the
Obligations, or make any loans or otherwise extend credit to Borrower Parties
after termination of the Forbearance Period.
7. Costs and
Expenses. Borrower agrees to pay on demand all out-of-pocket
costs and expenses paid or incurred by Lender in connection with the
negotiation, preparation, execution and delivery of this Amendment and all
documents, instruments and agreements related hereto and thereto, including the
reasonable fees and expenses of Lender's counsel.
8. Full Force and
Effect. The Forbearance Agreement, as amended hereby, remains
in full force and effect.
9. Titles. The
titles of the sections in this Amendment are for convenience only and do not
limit, construe, or otherwise affect the meaning of any section.
10. Execution in
Counterparts. This Amendment may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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11. Facsimile
Signatures. Facsimile copies of any party's signature hereto
shall be deemed effective execution of this Amendment by such
party.
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BANK:
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XXXXXXX
BANK
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By:
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/s/ Xxxxxx Xxxxxxx | |
| Xxxxxx Xxxxxxx | ||
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BORROWER
PARTIES:
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JEFFERSON
ELECTRIC, INC.
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By:
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/s/ Xxxxxx Xxxxx | |
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Xxxxxx
Xxxxx, President
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| /s/ Xxxxxx Xxxxx | ||
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Xxxxxx
Xxxxx, an individual
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| /s/ Xxxxx X. Xxxxx | ||
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Xxxxx
X. Xxxxx, an individual
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