FORBEARANCE EXTENSION AGREEMENT
This Forbearance Extension Agreement (this "AGREEMENT") made as of
this 12th day of April, 2002 by and among (i) Perryville III Trust, a trust
created under the laws of the state of New York pursuant to a trust agreement
dated as of December 16, 1994 (the "LANDLORD"), (ii) BNY Midwest Trust Company,
as successor trustee to ▇▇▇▇▇▇ Trust and Savings Bank, not in its individual
capacity but solely in its capacity as Owner Trustee of Perryville III Trust
(the "OWNER TRUSTEE"), (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Realty Services, Inc., a Delaware
corporation ("FWRS"), (iv) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC, a Delaware limited liability
company (together with FWRS, the "TENANTS" and each a "TENANT"), (v) Lombard US
Equipment Finance Corporation, a New York corporation (the "OWNER PARTICIPANT"),
(vi) National Westminster Bank Plc (the "AGENT") and (vii) the banks listed on
Schedule I to that certain Construction Loan Agreement dated as of December 16,
1994, among the Landlord, as Borrower, the lenders party thereto and their
permitted successors and assigns (the "LENDERS") and the Agent.
WHEREAS, the parties hereto have entered into that certain
Forbearance Agreement dated as of February 28, 2002 (the "FORBEARANCE
AGREEMENT") in connection with the Specified Events of Default (as defined in
the Forbearance Agreement);
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC has entered into that certain
Amendment dated as of the date hereof to Amendment No. 1 and Waiver (the
"AMENDMENT TO AMENDMENT NO. 1 AND WAIVER") relating to the Second Amended and
Restated Revolving Credit Agreement dated as of May 25, 2001 (as amended,
modified and supplemented from time to time, the "CREDIT AGREEMENT") among
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ USA Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Power Group,
Inc. (formerly known as ▇▇▇▇▇▇ Energy International), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Energy
Corporation, the guarantors signatory thereto, the lenders signatory thereto,
Bank of America, N.A., as administrative agent, First Union National Bank, as
syndication agent, and ABN AMRO Bank N.V., as documentation agent, arranged by
Banc of America Securities LLC, as lead arranger and book manager, and ABN AMRO
Bank N.V., First Union Capital Markets, Greenwich Natwest Structured Finance
Inc. and Toronto Dominion Bank, as arrangers; and
WHEREAS, the parties hereto desire to (i) extend the term of
forbearance by the Agent, the Landlord, the Required Lenders and the Owner
Participant under the Forbearance Agreement and (ii) make certain other
amendments to the Forbearance Agreement.
NOW, THEREFORE, based on these premises, and in consideration of
the mutual promises, representations and warranties, covenants and conditions
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Tenants, the Landlord, the
Agent, the Owner Participant and the Required Lenders signatory hereto hereby
agree as follows:
SECTION 1. DEFINITIONS. The capitalized terms set forth herein,
and not otherwise defined herein shall have the meanings given to such terms in
that certain Master Lease dated as of December 16, 1994 (as the same has been
and may hereafter be amended, modified or supplemented from time to time, the
"MASTER LEASE").
SECTION 2. AMENDMENTS. Effective as of the date hereof,
the Forbearance Agreement is hereby amended as follows:
(a) Section 4 of the Forbearance Agreement is hereby amended
by deleting the date "April 15, 2002" in clause (a) thereof and replacing such
date with "April 30, 2002".
(b) Section 4 of the Forbearance Agreement is hereby amended
by adding the following after the word "Waiver" in the eighth line thereof:
", as amended by the Amendment dated as of April 12, 2002
to Amendment No. 1 and Waiver,"
(c) Section 6(c) of the Forbearance Agreement is hereby
amended by deleting the first sentence and inserting in lieu thereof the
following:
"The Tenants shall pay on April 15, 2002, a fee to each of
the Required Lenders and the Owner Participant of 50 basis points of its
outstanding Loans (as defined in the Construction Loan Agreement) and
Equity Investment Amount (as defined in the Participation Agreement),
respectively, in the event that the Tenants, or a designee of the Tenants,
have not purchased the Property for the Purchase Price on or prior to
April 15, 2002.
SECTION 3. CONDITIONS PRECEDENT. The effectiveness of this
Agreement shall be subject to the satisfaction of the following conditions
precedent:
(a) Receipt by the Agent of this Agreement executed by the
Tenants, the Landlord, the Owner Trustee, the Agent, the Owner Participant and
the Required Lenders.
(b) Receipt by the Agent of payment by the Tenants of all
accrued fees and expenses of Agent, its counsel and consultants.
(c) Receipt by the Agent of a copy of the Amendment to
Amendment No. 1 and Waiver executed by the requisite lenders thereunder.
(d) Receipt by the Agent of a copy of the waiver or
extension of the Receivables Purchase Agreement among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Funding
Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital & Finance Corporation, Market Street Funding
Corporation and PNC Bank, National Association dated as of September 25, 1998,
as amended.
(e) Receipt by each of the Required Lenders and the Owner
Participant of the penalty fee of 50 basis points of its outstanding Loans (as
defined in the
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Construction Loan Agreement) and Equity Investment Amount (as defined in the
Participation Agreement), respectively, pursuant to Section 6(c) of the
Forbearance Agreement, as amended hereby.
SECTION 4. REPRESENTATIONS AND WARRANTIES. In order to induce the
Agent, the Landlord, the Required Lenders and the Owner Participant to enter
into this Agreement, the Tenants jointly and severally represent and warrant to
the Agent, the Landlord, the Required Lenders and the Owner Participant that:
(a) Subject in the case of Paragraph 32(h) to matters
disclosed in writing to the Lenders and Owner Participant prior to the effective
date of this Agreement, the representations and warranties of the Tenants set
forth in Paragraph 32 of the Master Lease are true and correct in all material
respects.
(b) The Agent, the Lenders and the Owner Participant have a
valid, enforceable and fully perfected first priority security interest in the
Property subject to no Liens other than Permitted Encumbrances.
(c) Except as otherwise provided herein, no Event of Default
exists as of the date hereof, no Event of Default would result from the
execution, delivery or consummation of the transactions contemplated by this
Agreement and no default exists under any of the Tenants' financing documents or
material contracts or agreements.
SECTION 5. FULL FORCE AND EFFECT. Except as expressly amended
hereby, all of the provisions of the Forbearance Agreement shall continue to be,
and shall remain, in full force and effect in accordance with their terms.
Nothing contained herein shall constitute a waiver by the Agent, the Landlord,
the Lenders or the Owner Participant of any of their rights and remedies under
the Operative Documents or under the Forbearance Agreement, all of which rights
and remedies are expressly reserved and not waived.
SECTION 6. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ALL
RESPECTS IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAWS PROVISIONS THEREOF (OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
SECTION 7. COUNTERPARTS. This Agreement may be executed by
one or more of the parties on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed under seal by their respective duly authorized officers as of the
date first written above.
PERRYVILLE III TRUST
By: BNY Midwest Trust Company, as successor
trustee to ▇▇▇▇▇▇ Trust and Savings Bank, not in
its individual capacity but solely in its capacity
as Owner Trustee of Perryville III Trust
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
BNY MIDWEST TRUST COMPANY, as successor trustee to
▇▇▇▇▇▇ Trust and Savings Bank, not in its
individual capacity but solely in its capacity as
Owner Trustee of Perryville III Trust
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ REALTY SERVICES, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP & Treasurer
AGENT, LENDERS, AND OWNER PARTICIPANT:
NATIONAL WESTMINSTER BANK Plc, as Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
NATIONAL WESTMINSTER BANK Plc, as Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
BANK OF MONTREAL, as Lender
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA, as Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
WACHOVIA BANK, NATIONAL ASSOCIATION, as Lender
SUCCESSOR IN INTEREST TO FIRST FIDELITY BANK,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
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LOMBARD US EQUIPMENT FINANCE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Secretary
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