Exhibit 10.1
FORBEARANCE AGREEMENT
THIS FORBEARANCE AGREEMENT ("AGREEMENT") is made as of October 22, 2004, by and
among PLANGRAPHICS, INC., a Maryland corporation ("BORROWER"), XXXX X. XXXXXXXXX
and XXXXX X. XXXXXXXXX (collectively, the "GUARANTORS"), and PLANGRAPHICS, INC.,
a Colorado corporation ("ADDITIONAL GUARANTOR"), and BRANCH BANKING AND TRUST
COMPANY, a North Carolina banking corporation ("BANK"). The BORROWER and the
GUARANTORS are hereafter collectively referred to as the "SUBJECT OBLIGORS." The
SUBJECT OBLIGORS and the ADDITIONAL GUARANTOR are hereafter collectively
referred to as the "OBLIGORS."
RECITALS:
R1. The BORROWER is currently indebted to the BANK under and in connection with
a $750,000.00 revolving line of credit loan ("LINE OF CREDIT") which the BANK
previously provided to the BORROWER.
R2. The LINE OF CREDIT is evidenced by, among other things: (i) a BB&T Loan
Agreement, dated February 15, 2002, as amended and modified by a Schedule "DD"
to BB&T Loan Agreement, dated February 15, 2002, and an Amendment to the BB&T
Loan Agreement, dated July 1, 2004, by and between the BANK and the BORROWER
(collectively, the "LOAN AGREEMENT"); and (ii) a Promissory Note, dated February
15, 2002, executed and delivered by the BORROWER to the order of the BANK in the
maximum stated principal amount of $750,000.00, as modified by various Note
Modification Agreements of various dates executed by the BORROWER (collectively,
the "NOTE").
R3. The GUARANTORS, jointly and severally, unconditionally guaranteed the
payment and performance of all amounts that are owed by the BORROWER to the BANK
under and in connection with the NOTE and the LINE OF CREDIT, pursuant to
various Guaranty Agreements dated February 15, 2002 and July 1, 2004 which were
executed by the GUARANTORS in favor of the BANK (collectively, the
"GUARANTIES").
R4. The indebtedness that is owed to the BANK under the LINE OF CREDIT and the
loan documents relating thereto is secured by first priority duly perfected
security interests and liens in, to and against various tangible and intangible
assets of the BORROWER, including, without limitation, all of the BORROWER'S
accounts, accounts receivable, contract rights, equipment, general intangibles,
and all products and proceeds thereof, pursuant to a BB&T Security Agreement
dated February 15, 2002 and a BB&T Security Agreement dated September 12, 2002
executed by the BORROWER in favor of the BANK (collectively, the "SECURITY
AGREEMENTS") and various financing statements relating to the BORROWER in favor
of the BANK and recorded among the financing statement records of the Maryland
State Department of Assessments and Taxation (collectively, the "FINANCING
STATEMENTS").
R5. The LOAN AGREEMENT, the NOTE, the GUARANTIES, the SECURITY AGREEMENTS,
the FINANCING STATEMENTS, and all other documents executed in connection with or
relating to the LINE OF CREDIT are hereafter referred to collectively as the
"ORIGINAL LOAN DOCUMENTS." (The ORIGINAL LOAN DOCUMENTS, this AGREEMENT, and the
ADDITIONAL GUARANTY are hereafter referred to collectively as the "LOAN
DOCUMENTS.")
R6. All assets of the BORROWER which now or hereafter serve as security for the
indebtedness that is owed to the BANK under the LINE OF CREDIT and the LOAN
DOCUMENTS are referred to herein collectively as the "COLLATERAL."
R7. Pursuant to the terms and conditions of the ORIGINAL LOAN DOCUMENTS, the
LINE OF CREDIT matured on October 3, 2004. Consequently, all indebtedness that
is owed under the LINE OF CREDIT and the ORIGINAL LOAN DOCUMENTS is immediately
due and payable from the SUBJECT OBLIGORS to the BANK.
R8. The SUBJECT OBLIGORS are presently in default under the ORIGINAL LOAN
DOCUMENTS.
R9. The OBLIGORS therefore have asked the BANK to: (a) forbear against the
SUBJECT OBLIGORS and the COLLATERAL as set forth herein; (b) accept payment of
the indebtedness that is owed to the BANK under the LINE OF CREDIT pursuant to
the terms and conditions set forth below; (c) make certain limited advances to
the BORROWER under the LINE OF CREDIT as set forth herein; and (d) agree to the
other terms and conditions set forth herein. The BANK has now had an opportunity
to review the OBLIGORS' requests, and in connection therewith, is willing to
agree as set forth below.
WITNESSETH:
NOW, THEREFORE, in consideration of these premises, and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. Recitals. The recitals set forth above are true and accurate in every
respect and are hereby incorporated into this AGREEMENT by reference.
2. Condition Precedent; Additional Guaranty. It shall be a condition
precedent to the BANK'S obligation to enter into this AGREEMENT that the
ADDITIONAL GUARANTOR execute and deliver a Guaranty Agreement ("ADDITIONAL
GUARANTY") of even date herewith, in a form acceptable to the BANK, in favor of
the BANK pursuant to which the ADDITIONAL GUARANTOR shall unconditionally
guaranty the payment and performance of all obligations owed to the BANK under
the LINE OF CREDIT and the LOAN DOCUMENTS.
3. Forbearance Period. The BANK hereby agrees, subject to the terms and
conditions set forth herein, to forbear from asserting and enforcing its various
rights and remedies under the LOAN DOCUMENTS and applicable law with respect to
the OBLIGORS and the COLLATERAL until the earlier of an EVENT OF DEFAULT (as
defined below) hereunder or 3:00 p.m. on December 3, 2004 (the "FORBEARANCE
PERIOD"). Upon the expiration of the FORBEARANCE PERIOD or upon the occurrence
of an EVENT OF DEFAULT (as defined below), all indebtedness that is owed under
the LOAN DOCUMENTS at that time, including, without limitation, all principal,
accrued and unpaid interest, late charges, audit and field examination fees,
appraisal fees, due diligence expenses, attorneys' fees and expenses and all
other charges and expenses owed thereunder, shall, without notice or demand,
become immediately due and payable from the OBLIGORS to the BANK.
4. Acknowledgments. The OBLIGORS acknowledge and agree that: (a) the LOAN
DOCUMENTS are the valid and binding obligations of the OBLIGORS; (b) the SUBJECT
OBLIGORS are presently in default on their respective obligations to the BANK
under the ORIGINAL LOAN DOCUMENTS; and (c) but for the BANK'S agreement to
forbear as set forth herein, the BANK would be entitled to immediately enforce
its various rights and remedies against the SUBJECT OBLIGORS and the COLLATERAL
under the ORIGINAL LOAN DOCUMENTS and applicable law.
5. Outstanding Balance Owed Under The Line of Credit. The parties hereto
acknowledge and agree that, as of October 20, 2004, the outstanding principal,
interest and late fee balance, exclusive of attorneys' fees and expenses, owed
by the OBLIGORS to the BANK under the LINE OF CREDIT and the LOAN DOCUMENTS was
$355,739.35, consisting of an outstanding principal balance of $345,196.68,
accrued and unpaid interest of $8,877.22 and late fees in the amount of
$1,665.45.
6. Attorneys' Fees and Expenses. In addition to the above referenced
amounts, there is also due and owing from the OBLIGORS to the BANK under the
LOAN DOCUMENTS, all actual costs, expenses and attorneys fees which the BANK has
incurred and may incur in the future under, in connection with, or due to the
defaults existing under the ORIGINAL LOAN DOCUMENTS, including, but not limited
to, all costs, expenses and attorneys' fees which the BANK has incurred and may
incur in the future in preparing, negotiating and this AGREEMENT. All such
costs, expenses and attorneys fees, and all costs involved in carrying out the
transactions contemplated by this AGREEMENT that are incurred by the BANK,
including, but not limited to, attorneys= fees and expenses, recording fees,
audit and field examination fees, due diligence expenses, record search charges
and appraisal fees, shall be the sole and absolute responsibility of the
OBLIGORS and shall be paid by the OBLIGORS to the BANK on demand. As of October
20, 2004, the BANK has incurred attorneys' fees and expenses of approximately
$2,900.00 ("CURRENT FEES"). The BORROWER hereby authorizes the BANK to debit its
OPERATING ACCOUNT (as defined below) for the CURRENT FEES and for all other
attorneys' fees and expenses that are presently or hereafter owed by the
OBLIGORS to the BANK under this AGREEMENT and the other LOAN DOCUMENTS.
7. Forbearance Fee. In consideration for the various agreements of the BANK
as set forth herein, the OBLIGORS shall pay the BANK a forbearance fee in the
amount of Seven Hundred Fifty Dollars ($750.00) ("FORBEARANCE FEE"). The
FORBEARANCE FEE shall be paid by the OBLIGORS to the BANK in accordance with
Section 11 below. The FORBEARANCE FEE shall be the sole and absolute property of
the BANK and shall not be applied by the BANK to reduce any of the outstanding
indebtedness that is owed by the OBLIGORS under the LOAN DOCUMENTS.
8. Interest Rate; Default Interest Rate. Until all indebtedness that is
owed under the LINE OF CREDIT has been paid in full, interest shall continue to
accrue on the outstanding principal balance that is owed to the BANK under the
LINE OF CREDIT at an interest rate equal to the BANK'S "Prime Rate" as defined
in the NOTE plus six percent (6%) per annum to be adjusted daily. Upon an EVENT
OF DEFAULT, the BANK may assess and charge any default rate of interest called
for in the LOAN DOCUMENTS.
9. Confirmation Of Obligations. The OBLIGORS acknowledge, ratify and
confirm their respective obligations to the BANK under the ORIGINAL LOAN
DOCUMENTS and further acknowledge, ratify and confirm that they are and shall
remain, jointly and severally, absolutely and unconditionally obligated to pay
the BANK all present and future indebtedness that is owed under the LOAN
DOCUMENTS.
10. Representations Regarding Collateral; Termination of National City
Financing Statement. The OBLIGORS hereby acknowledge, ratify and confirm that
all present and future indebtedness that is owed to the BANK under the LOAN
DOCUMENTS is and shall hereafter continue to be secured by duly perfected
security interests and liens in, to and against the COLLATERAL. The OBLIGORS
further acknowledge and agree that the BANK shall not be obligated to release
any of the liens which it holds against any of the COLLATERAL unless and until
the BANK is paid all amounts that are owed under the LINE OF CREDIT and the LOAN
DOCUMENTS. The OBLIGORS hereby represent and warrant to the BANK that no
creditor, other than the BANK, holds a lien or security interest against any of
the COLLATERAL. The OBLIGORS further represent and warrant to the BANK that the
BORROWER is not indebted to National City Bank of Kentucky for any amount of
money and that the financing statement previously recorded against the BORROWER
by National City Bank of Kentucky on or about June 26, 2000 (Original Lien
Number XXXXX0723) (the "NATIONAL CITY FINANCING STATEMENT") among the financing
statement records of the Maryland State Department of Assessments and Taxation
should have been terminated. Within three (3) business days after the execution
of this AGREEMENT, the BORROWER shall cause a termination statement to be filed
by National City Bank of Kentucky in the Maryland State Department of
Assessments and Taxation in order to terminate the NATIONAL CITY FINANCING
STATEMENT and shall provide a date-stamped copy of such recorded termination
statement to the BANK.
11. Representations Regarding Accounts Receivable. The OBLIGORS hereby
acknowledge that the BORROWER has provided the BANK with an account receivable
aging statement representing to the BANK that the BORROWER has valid outstanding
accounts receivable in the amount of $2,302,099.70 as of September 30, 2004
("AGING STATEMENT"). The OBLIGORS hereby represent and warrant to the BANK that
the BORROWER owns all of the accounts receivable listed in the AGING STATEMENT
and that the AGING STATEMENT is true, accurate and complete in all respects.
12. Payments. The indebtedness that is owed to the BANK under the LINE OF
CREDIT and the LOAN DOCUMENTS relating thereto shall be paid by the OBLIGORS to
the BANK in the following manner:
(a) Simultaneously with the execution of this AGREEMENT, the OBLIGORS
shall deliver a payment to the BANK in an amount equal to the CURRENT FEES and a
payment in an amount equal to the FORBEARANCE FEE;
(b) On November 1, 2004 and December 1, 2004, the OBLIGORS shall
deliver to the BANK, in immediately available funds, a payment equal to the
accrued and unpaid interest that is owed under the LINE OF CREDIT and the LOAN
DOCUMENTS; and
(c) On or before 3:00 p.m. on December 3, 2004, the OBLIGORS shall
deliver to the BANK, in immediately available funds, a payment equal to all
indebtedness that is owed at that time to the BANK under the LINE OF CREDIT and
the LOAN DOCUMENTS, including, without limitation, all principal, accrued and
unpaid interest, late charges, due diligence expenses, recording fees, appraisal
fees, audit and field examination fees, and all other costs, expenses and
attorneys= fees owed thereunder.
(d) The BORROWER hereby authorizes the BANK to debit its OPERATING
ACCOUNT (as defined below) for all of the payments called for in this AGREEMENT,
including, without limitation, all payments called for in this Section.
13. Obligation To Seek Refinancing. During the FORBEARANCE PERIOD, the
OBLIGORS shall use their best efforts to obtain a loan from a lender other than
the BANK in order to refinance the LINE OF CREDIT and pay the BANK all amounts
that are owed thereunder prior to December 3, 2004. The OBLIGORS shall provide
the BANK with copies of any applications which they submit to apply for such
refinancing and copies of all letters of intent, commitment letters and
settlement statements which are submitted, prepared and/or executed in
connection with the OBLIGORS' efforts at obtaining a refinancing loan. The
OBLIGORS acknowledge that their respective obligations under the LOAN DOCUMENTS,
including the OBLIGORS' obligation to make the payments called for under this
AGREEMENT, shall not be contingent upon the OBLIGORS' ability to obtain a
refinancing loan from another lender.
14. Borrowing Base; Maximum Line Amount. The parties hereto agree that: (i)
during the FORBEARANCE PERIOD the "Borrowing Base" under the LINE OF CREDIT (the
"BORROWING BASE") shall be equal to seventy percent (70%) of the BORROWER'S
"Eligible Accounts" as defined in the LOAN DOCUMENTS that are less than sixty
days (60) from the original date of invoicing, with the exception of any
accounts receivable that are due from New York which such accounts shall be
"Eligible Accounts" provided that they are less than ninety (90) days from the
original date of invoicing; and (ii) the maximum principal amount outstanding
under the LINE OF CREDIT any given time shall not exceed the lesser of: (a)
$750,000.00; or (b) the BORROWING BASE (the "MAXIMUM LINE AMOUNT").
15. Weekly Loan Base Reports. On each Monday during the FORBEARANCE PERIOD,
the BORROWER shall provide the BANK with a fully and properly prepared "Loan
Base Report" ("LOAN BASE REPORT"), as that term is defined in the LOAN
DOCUMENTS, in a form and substance that is acceptable to the BANK in all
respects, together with all schedules, agings, certificates, lists, records,
reports and other documents as the BANK may require in its sole and absolute
discretion.
16. Limited Advances Under the Line of Credit. During the FORBEARANCE
PERIOD, the BANK may, in its sole and absolute discretion, make certain limited
advances to the BORROWER under the LINE OF CREDIT and the LOAN DOCUMENTS
evidencing the same, subject to the following terms, covenants and limitations:
(a) as a condition precedent to the BORROWER=S right to receive any
further advances from the BANK under the LINE OF CREDIT, no EVENT OF DEFAULT
shall have occurred under this AGREEMENT or any of the other LOAN DOCUMENTS;
(b) any further advances from the BANK to the BORROWER under the LINE
OF CREDIT shall not cause the total principal indebtedness that is outstanding
under the LINE OF CREDIT and the LOAN DOCUMENTS to exceed the MAXIMUM LINE
AMOUNT;
(c) the BORROWER shall have provided the BANK with a fully and
properly prepared LOAN BASE REPORT, in a form and substance that is acceptable
to the BANK in all respects, so that the BANK may, in its sole and absolute
discretion, determine the BORROWING BASE for the LINE OF CREDIT;
(d) all other terms, covenants and conditions set forth in the LOAN
DOCUMENTS that are applicable to any request for an advance under the LINE OF
CREDIT, to the extent not modified herein, shall also be applicable to any
advance hereafter requested by the BORROWER under the LINE OF CREDIT and must be
complied with by the BORROWER as a condition precedent to the BORROWER's right
to receive any further advances from the BANK under the LINE OF CREDIT; and
(e) each advance requested by the BORROWER under the LINE OF CREDIT
must be acceptable to the BANK in all respects in the BANK's sole and absolute
discretion.
The parties hereto agree that all advances hereafter made by the BANK to the
BORROWER under the LINE OF CREDIT shall constitute additional indebtedness that
is due and owing from the OBLIGORS to the BANK under the NOTE and the other LOAN
DOCUMENTS, shall be secured by first priority duly perfected security interests
and liens in, to and against the COLLATERAL, and shall be due and payable from
the OBLIGORS to the BANK as provided for herein. Moreover, the OBLIGORS hereby
acknowledge and agree that in the event that any advances made by the BANK to
the BORROWER under the LINE OF CREDIT exceed the MAXIMUM LINE AMOUNT, the
OBLIGORS shall be unconditionally liable to the BANK for all such amounts
pursuant to the terms and conditions of the LOAN DOCUMENTS.
17. Termination of Line of Credit. The OBLIGORS hereby acknowledge and
agree that upon the earlier of the occurrence of an EVENT OF DEFAULT (as
hereafter defined) hereunder or the expiration of the FORBEARANCE PERIOD, the
revolving nature of the LINE OF CREDIT shall automatically terminate without
notice and the BANK, thereafter, shall not be obligated or required to make any
further advances to the BORROWER or to any other person or entity under the LINE
OF CREDIT or under any of the LOAN DOCUMENTS evidencing the same. The OBLIGORS
also acknowledge and agree that the above-described termination of the revolving
nature of the LINE OF CREDIT shall be valid, proper and binding and shall not
create any defense, offset, or counterclaim in favor of any of the OBLIGORS with
respect to their respective obligations to the BANK under the LOAN DOCUMENTS.
18. Lock Box; Collateral Reserve Account; Receivables Collections. The
BORROWER shall immediately cause all of the BORROWER'S present and future
account receivable collections to be sent directly to the lock box at the BANK
which was previously established in connection with the LINE OF CREDIT ("LOCK
BOX"). All account receivable collections that are received by the BANK in the
LOCK BOX will be deposited by the BANK into the Collateral Reserve Account,
account number XXXXX55771 ("COLLATERAL RESERVE ACCOUNT"), at the BANK which was
previously established in connection with the LINE OF CREDIT. In the event that
the BORROWER receives any account receivable collections, cash, checks or other
proceeds of the BANK'S COLLATERAL, the BORROWER shall hold such funds in trust
for the BANK and shall immediately deposit all such funds into the COLLATERAL
RESERVE ACCOUNT at the BANK. Until such time as all indebtedness that is owed to
the BANK under the LOAN DOCUMENTS has been paid in full, all cash, checks and
other monies of the BORROWER that are deposited into the COLLATERAL RESERVE
ACCOUNT will be applied from time to time by the BANK to reduce the indebtedness
that is owed under the LOAN DOCUMENTS, in such order, proportion and manner as
the BANK, in its sole and absolute discretion deems appropriate from time to
time. The BORROWER hereby acknowledges and agrees that the BORROWER shall have
no access to, use of or control over the COLLATERAL RESERVE ACCOUNT or to any of
the funds on deposit therein for any reason.
19. Bank Accounts; Operating Account; Authorization To Debit. The parties
hereto agree as follows:
(a) Bank Accounts. At the present time, the BORROWER maintains its
operating account, account number XXXXX4796 ("OPERATING ACCOUNT"), at the BANK.
The BORROWER agrees to maintain all other bank accounts (together with the
OPERATING ACCOUNT collectively the "BANK ACCOUNTS") at the BANK until such time
as all indebtedness that is owed to the BANK under the LOAN DOCUMENTS has been
fully satisfied. The BORROWER shall not maintain any bank accounts at any other
bank or financial institution other than the BANK.
(b) Advances Into Operating Account. Any advances that are made by the
BANK to the BORROWER under the LINE OF CREDIT shall be deposited into the
BORROWER'S OPERATING ACCOUNT.
(c) Authorization to Debit Operating Account. The BORROWER hereby
authorizes the BANK to debit its OPERATING ACCOUNT for all payments called for
in this AGREEMENT.
(d) No Overdrafts. The OBLIGORS hereby acknowledge and agree that the
BANK shall not be obligated for any reason to honor any checks, ACH (Automated
Clearing House) debits or other items that are drawn or otherwise presented for
payment against any of the BANK ACCOUNTS if payment of the check, ACH debit or
item would cause an overdraft or negative balance in any of the BANK ACCOUNTS.
The OBLIGORS further acknowledge and agree that in the event that any check, ACH
debit or other item is presented for payment against any BANK ACCOUNT at such
time when there are insufficient collected and immediately available funds in
the BANK ACCOUNT to cover said check, ACH debit or item, the BANK shall be
entitled, in its sole and absolute discretion, to return some or all of such
check(s), ACH debit(s) or item(s) unpaid. In the e vent that any overdraft is
caused in any of the BANK ACCOUNTS, the OBLIGORS shall immediately reimburse the
BANK for the full amount of such overdraft upon demand by the BANK.
(e) Offset; Security Interest. Upon an EVENT OF DEFAULT (as defined
below), the BANK shall be entitled to offset against any BANK ACCOUNT and apply
the funds therein to reduce the indebtedness that is owed under the LOAN
DOCUMENTS in such manner as the BANK deems appropriate. The BORROWER hereby
grants the BANK a lien and security interest in, to and against all of the BANK
ACCOUNTS and all funds now or hereafter on deposit therein.
20. No Loans; No Payment of Dividends. The OBLIGORS hereby agree that until
the LINE OF CREDIT is paid in full, the BORROWER shall not: (i) loan or advance
any money to any person or entity for any reason, or (ii) pay any dividend,
distribution or other funds, other than ordinary wages, to the GUARANTORS or to
any of the BORROWER'S shareholders or directors.
21. Subordination Of Loans. The OBLIGORS hereby agree that until the LINE
OF CREDIT is paid in full, all amounts due and owing from any OBLIGOR to any
other OBLIGOR (collectively, the ASUBORDINATED LOANS@) are hereby subordinated
in all respects to the indebtedness that is due and owing to the BANK under the
LOAN DOCUMENTS. The OBLIGORS hereby agree that no payments shall be made or
received by any of the OBLIGORS on any of the SUBORDINATED LOANS until such time
as all indebtedness that is owed to the BANK under the LOAN DOCUMENTS has been
fully satisfied. In the event that any of the OBLIGORS receive any payments on
any of the SUBORDINATED LOANS, the OBLIGORS shall hold such funds in trust for
the BANK and shall immediately turn over such funds to the BANK.
22. Financial Information. The OBLIGORS hereby agree that:
(a) The OBLIGORS shall provide all financial information and
documentation to the BANK that is called for in the LOAN DOCUMENTS as and when
required thereunder.
(b) Within three (3) business days after the execution of this
AGREEMENT, the OBLIGORS shall provide the BANK with: (i) copies of all contracts
between the BORROWER and any third party which in any way relates to any account
receivable which is owed to the BORROWER; (ii) a detailed list of all of
BORROWER'S equipment, furniture, computers and other assets, including the
location of each such item; and (iii) copies of any leases between the BORROWER
and any third party.
(c) In addition, the OBLIGORS shall provide the BANK with all
financial information and documentation that the BANK may request from time to
time from the OBLIGORS, including, without limitation, a current detailed
account receivable aging statement for the BORROWER, including the name,
address, contact person and telephone number for each account debtor, balance
sheets, financial statements, income statements, financial projections, account
payable aging statements, tax returns, and personal financial statements for the
GUARANTORS.
(d) All financial information and documentation submitted by the
OBLIGORS to the BANK shall be in forms that are acceptable to the BANK and shall
contain such information and detail as the BANK may require in its sole and
absolute discretion.
23. Taxes. The OBLIGORS hereby warrant and represent to the BANK that the
BORROWER is current in all of its tax payments to the Internal Revenue Service,
the State of Maryland and all other taxing authorities. The OBLIGORS further
represent and warrant to the BANK that the OBLIGORS will make all tax payments
which the OBLIGORS are required to make to the Internal Revenue Service, the
State of Maryland and all other taxing authorities with respect to all forms of
taxes including, without limitation, federal and state income and withholding
taxes and personal property taxes, when and as said tax payments are due.
24. Due Diligence; Appraisal; Audit. The OBLIGORS hereby agree that until
the LINE OF CREDIT has been paid in full, the BANK, at the sole expense of the
OBLIGORS, shall be entitled to conduct such due diligence with respect to the
OBLIGORS and the COLLATERAL as the BANK, in its sole and absolute discretion,
deems necessary, including, but not limited to, obtaining UCC, judgment and tax
lien reports for the OBLIGORS, obtaining appraisals with respect to the
COLLATERAL, conducting financial audits and field examinations of the BORROWER'S
business and financial records, and such other due diligence with respect to the
COLLATERAL and the OBLIGORS as the BANK deems appropriate and at such times as
the BANK deems appropriate. The cost of conducting such due diligence shall be
the responsibility of the OBLIGORS and shall be paid for by the OBLIGORS to the
BANK in accordance with the terms and conditions of Sections 5 and 11 above or
on demand. The OBLIGORS shall fully assist and cooperate with the BANK in
obtaining or conducting any of the due diligence, appraisals or field
examinations contemplated herein. The OBLIGORS acknowledge that they will not be
entitled to receive any copies or the substance of any reports prepared for the
BANK in connection with any due diligence that the BANK performs pursuant to
this Section.
25. Inspection of Collateral. At any time or from time to time, the BANK
and its agents and representatives, upon providing the OBLIGORS with twenty-four
(24) hours telephonic notice (except in the case where the BANK believes that
the condition of the COLLATERAL is threatened, in which case, no notice shall be
required) shall be entitled to enter upon the BORROWER's business premises and
inspect the COLLATERAL and all records and documents relating thereto, and the
OBLIGORS shall fully cooperate with the BANK and its agents and representatives
during the course of any such inspection.
26. Covenant Not To Encumber Or Transfer Assets. The OBLIGORS agree that no
further encumbrances of any type, whether voluntary or involuntary, and whether
by mortgage, security agreement and financing statement, deed of trust, judgment
or lien, shall be placed against any of the OBLIGORS' assets or against any of
the COLLATERAL, without the prior written consent of the BANK. The OBLIGORS
agree that they will not sell, transfer or convey any of the COLLATERAL until
the LINE OF CREDIT is paid in full, without the prior written consent of the
BANK, other than in the ordinary course of business.
27. Insurance. The OBLIGORS shall maintain fire, casualty and other hazard
insurance with respect to the COLLATERAL in amounts that are reasonably
acceptable to the BANK. Within three (3) business days after the execution of
this AGREEMENT, the OBLIGORS shall provide the BANK with documentation
evidencing the existence of all such insurance policies. In addition, in the
event that the BANK has not been named as a loss payee, mortgagee or additional
insured under each insurance policy, the OBLIGORS shall cause the BANK to be
named as such under each insurance policy and copies of documents evidencing
each amendment shall be provided to the BANK at the time of the execution of
this AGREEMENT. All insurance proceeds payable from any such insurance policies,
and all insurance proceeds payable in connection with or as a result of any of
the COLLATERAL, shall be paid directly to the BANK and will be applied by the
BANK to reduce the indebtedness that is owed under the LOAN DOCUMENTS.
28. Additional Documents And Submissions. The OBLIGORS agree to execute and
deliver to the BANK such other and further documents, in forms that are
acceptable to the BANK in all respects, as may, from time to time, in the sole
opinion of the BANK or its counsel, be reasonably necessary, convenient or
proper to carry out the terms and conditions of this AGREEMENT and the other
LOAN DOCUMENTS or to grant or perfect the BANK'S liens and security interests
against the COLLATERAL.
29. Representations And Warranties. The OBLIGORS hereby severally represent
and warrant to the BANK that:
(a) All information, documents, reports, statements, financial
statements and data submitted by or on behalf of the OBLIGORS in connection with
this AGREEMENT are true, accurate and complete as of the date made;
(b) The BORROWER is duly organized, validly existing, and in good
standing under the laws of the State of Maryland;
(c) The entry into this AGREEMENT by the BORROWER has been validly and
effectively approved by the BORROWER'S Board of Directors and/or shareholders as
may be required by the BORROWER'S organizational documents, all amendments
thereto and applicable law;
(d) XXXX X. XXXXXXXXX is the President of the BORROWER and is
authorized under the BORROWER'S organizational documents, any amendments
thereto, and applicable law to execute this AGREEMENT and all other related
documents called for herein on behalf of the BORROWER;
(e) The ADDITIONAL GUARANTOR is duly organized, validly existing, and
in good standing under the laws of the State of Colorado;
(f) The entry into this AGREEMENT by the ADDITIONAL GUARANTOR has been
validly and effectively approved by the ADDITIONAL GUARANTOR'S Board of
Directors and/or shareholders as may be required by the ADDITIONAL GUARANTOR 'S
organizational documents, all amendments thereto and applicable law;
(g) XXXX X. XXXXXXXXX is the President of the ADDITIONAL GUARANTOR and
is authorized under the ADDITIONAL GUARANTOR'S organizational documents, any
amendments thereto, and applicable law to execute this AGREEMENT and all other
related documents called for herein on behalf of the ADDITIONAL GUARANTOR;
(h) The making and performance of this AGREEMENT will not immediately,
or with the passage of time, the giving of notice or both violate the charter,
by-laws or any other organizational documents of the BORROWER or the ADDITIONAL
GUARANTOR;
(i) There are no pending or threatened lawsuits or legal proceedings
of any nature against any of the OBLIGORS or the COLLATERAL; and
(j) The LOAN DOCUMENTS are the valid and binding obligations of the
OBLIGORS to which the OBLIGORS have no defenses, counterclaims or offsets.
30. Additional Events Of Default. The following shall constitute events of
default under this AGREEMENT and additional events of default under the LOAN
DOCUMENTS (individually, "EVENT OF DEFAULT" and collectively, the "EVENTS OF
DEFAULT"):
(a) The failure of any of the OBLIGORS to make, in a timely manner,
any of the payments which they are required to tender to the BANK pursuant to
this AGREEMENT or any other LOAN DOCUMENT, time being of the essence;
(b) The failure of any of the OBLIGORS to do anything they are
required to do under this AGREEMENT or under any other LOAN DOCUMENT;
(c) The OBLIGORS doing anything they are prohibited from doing under
this AGREEMENT or under any other LOAN DOCUMENT;
(d) Any violation or breach by any of the OBLIGORS of any
representation, covenant, warranty or obligation contained in this AGREEMENT or
in any other LOAN DOCUMENT;
(e) Any of the OBLIGORS providing the BANK with any information that
is not materially true, accurate and complete;
(f) The commencement of a voluntary federal bankruptcy proceeding,
state insolvency proceeding or other similar type of proceeding by or against
any of the OBLIGORS;
(g) The commencement of an involuntary bankruptcy proceeding against
any of the OBLIGORS;
(h) The death or dissolution of any OBLIGOR;
(i) The occurrence of any event which the BANK reasonably deems to
impair any of the COLLATERAL in any respect including, without limitation, the
value thereof;
(j) The recordation of any federal, state or local tax lien against
any of the OBLIGORS;
(k) The occurrence of a material adverse change in the financial
condition or business of any of the OBLIGORS after the date of the execution of
this AGREEMENT;
(l) The occurrence of an overdraft in any of the BANK ACCOUNTS;
(m) The failure by the OBLIGORS to pay any form of taxes as and when
such taxes are due;
(n) The filing of any foreclosure action or proceeding against any of
the COLLATERAL by another creditor;
(o) The entry of a money judgment against any of the OBLIGORS after
the date of this AGREEMENT;
(p) The garnishment or attachment of any of the OBLIGORS' assets;
(q) The submission of any LOAN BASE REPORT or other financial
information or documentation by the OBLIGORS to the BANK that is not true,
accurate and complete on the date that it is submitted;
(r) The failure by the BORROWER to deposit all of its account
receivable collections, checks and cash in the COLLATERAL RESERVE ACCOUNT at the
BANK; or
(s) The occurrence of any field examination by the BANK, or the BANK'S
agents or representatives, of the BORROWER and the BORROWER'S financial records
which the BANK, in its sole and absolute discretion, deems to be unsatisfactory
to the BANK.
31. No Cure Periods. All cure periods or grace periods provided for in the
ORIGINAL LOAN DOCUMENTS, and all provisions in the ORIGINAL LOAN DOCUMENTS which
required the BANK to provide notice to the OBLIGORS, are hereby deleted and
shall no longer have any force or effect.
32. Incorporation; Limited Modification. The terms and conditions of the
ORIGINAL LOAN DOCUMENTS are incorporated herein by reference and made a part
hereof as if fully set forth herein. Except as modified by this AGREEMENT, the
parties hereto acknowledge and agree that all other terms and conditions of the
ORIGINAL LOAN DOCUMENTS shall remain unchanged, in full force and effect and are
hereby ratified and confirmed by the OBLIGORS and the BANK in all respects.
33. Waivers. The BANK may at any time or from time to time waive all or any
of its rights and remedies under this AGREEMENT or under any other LOAN
DOCUMENT, but any such waiver or indulgence by the BANK at any time or from time
to time shall not constitute, unless specifically so expressed by the BANK, in
writing, a future waiver of performance or exact performance by the OBLIGORS.
34. No Novation. This AGREEMENT and any documents executed pursuant to this
AGREEMENT shall not cause a novation of any of the ORIGINAL LOAN DOCUMENTS or
extinguish, terminate or impair the OBLIGORS= respective obligations to the BANK
under the LOAN DOCUMENTS. In addition, this AGREEMENT and any documents executed
pursuant to this AGREEMENT shall not release, affect or impair the priority of
any security interests or liens held by the BANK in any of the COLLATERAL.
35. Forbearance; Rights and Remedies. The BANK, subject to the terms and
conditions set forth herein, agrees to forbear from exercising and enforcing any
rights or remedies which the BANK may be entitled to assert under the LOAN
DOCUMENTS and applicable law with respect to the OBLIGORS and the COLLATERAL
during the FORBEARANCE PERIOD, provided that no EVENT OF DEFAULT hereafter
occurs under this AGREEMENT or under any other LOAN DOCUMENT. Upon the earlier
of the occurrence of an EVENT OF DEFAULT or the expiration of the FORBEARANCE
PERIOD, the BANK, immediately thereafter, without notice or demand, shall be
entitled to: (a) accelerate payment of all indebtedness that is owed by the
OBLIGORS to the BANK under the LOAN DOCUMENTS; (b) confess judgment against the
OBLIGORS as set forth below; (c) collect, foreclosure or liquidate some or all
of the COLLATERAL; and/or (d) assert and enforce all other rights and remedies
which are available to the BANK under this AGREEMENT the other LOAN DOCUMENTS as
modified by this AGREEMENT and applicable law with respect to the OBLIGORS, the
COLLATERAL and the OBLIGORS' other respective assets. The parties hereto
acknowledge that by entering into this AGREEMENT, the BANK is not waiving any of
its rights or remedies under the LOAN DOCUMENTS or any defaults which presently
exist thereunder.
36. Confession Of Judgment. Upon the occurrence of an EVENT OF DEFAULT
under this AGREEMENT or a default or EVENT OF DEFAULT under any other LOAN
DOCUMENT as modified by this AGREEMENT, the OBLIGORS irrevocably authorize and
empower any attorney admitted to practice before any court of record in the
United States to appear on behalf of any or all of the OBLIGORS in any such
court, in one or more proceedings, or before any clerk thereof, and to confess
judgment against any or all of the OBLIGORS, without prior notice or opportunity
for prior hearing, in favor of the BANK, for the full amount then owed to the
BANK under the LOAN DOCUMENTS, plus an attorneys' fee equal to fifteen percent
(15%) of said amounts, plus court costs. In addition to all other courts where
jurisdiction and venue would be proper, the OBLIGORS consent to the jurisdiction
and venue of the courts of any county of the State of Maryland, or Baltimore
City, Maryland, or the United States District Court for the District of Maryland
for the entry of said judgment(s). The OBLIGORS waive and release all errors,
defects, and imperfections whatsoever in the entry of said judgment(s) and
hereby agree that no writ of error or objection or motion or rule to open or
strike said judgment(s) or appeal shall be made or taken thereto. The OBLIGORS
also waive any right to notice or a hearing prior to the entry of said judgments
and further waive the benefit of any and every statute, ordinance, or rule of
court which may be lawfully waived conferring upon the OBLIGORS any right or
privilege of exemption including, but not limited to, any homestead exemption,
stay of execution, or supplementary proceedings, or other relief from the
enforcement or immediate enforcement of a judgment or related proceedings on a
judgment. The authority and power to appear for and enter judgment(s) against
the OBLIGORS pursuant to the authority granted herein shall not be exhausted by
one or more exercises thereof, or by any imperfect exercise thereof, and shall
not be extinguished by any judgment(s) entered pursuant thereto; such authority
and power may be exercised on one or more occasions from time to time, in the
same or different jurisdictions, as often as the BANK may deem necessary or
advisable.
37. Consent to Jurisdiction in Maryland. The OBLIGORS hereby each consent
to personal jurisdiction and venue in any state or federal court in the State of
Maryland in any action or proceeding arising out of or relating to the LINE OF
CREDIT, this AGREEMENT or any of the other LOAN DOCUMENTS.
38. Governing Law. The performance and construction of this AGREEMENT and
the other LOAN DOCUMENTS shall be governed by the laws of the State of Maryland.
39. Invalidity. If any term, provision or condition, or any part thereof,
of this AGREEMENT or any other LOAN DOCUMENT, shall for any reason be found or
held invalid or unenforceable by any court or governmental agency of competent
jurisdiction, such invalidity or unenforceability shall not affect the remainder
of such term, provision or condition or any other term, provision or condition,
and this AGREEMENT and the other LOAN DOCUMENTS shall survive and be construed
as if such invalid or unenforceable term, provision or condition had not been
contained therein.
40. Binding Effect. This AGREEMENT and the other LOAN DOCUMENTS shall be
binding upon and inure to the benefit of the parties hereto and their respective
personal representatives, successors and assigns.
41. Amendment. This AGREEMENT and the other LOAN DOCUMENTS may only be
altered, modified or amended by a writing executed by all of the parties hereto.
42. Time. Time is of the essence with respect to this AGREEMENT and the
other LOAN DOCUMENTS.
43. Tense, Gender, Defined Terms, Captions, Effective Date, Execution In
Counterparts and Via Facsimile, Miscellaneous. As used herein, the plural shall
refer to and include the singular, and the singular the plural, and the use of
any gender shall include and refer to any other gender. All defined terms are
completely capitalized throughout this AGREEMENT. All captions are for the
purpose of convenience only. This AGREEMENT shall be effectively dated as of
October 22, 2004. This AGREEMENT may be executed and delivered in counterparts.
Signed counterparts may be delivered via facsimile, with all copies delivered
via facsimile to be deemed to have the same force and effect as if bearing
original signatures.
44. Notices. Any notice required or permitted by or in connection with this
AGREEMENT or any other LOAN DOCUMENT, without implying any obligation to provide
any such notice, shall be in writing at the appropriate addresses set forth
below or to such other addresses as may be hereafter specified by written notice
by the BANK or any of the OBLIGORS. Any such notice shall be deemed to be
effective one (1) day after dispatch if sent by Airborne, Express Mail, Federal
Express, American Overnight or similar overnight mail service. Notwithstanding
the foregoing, all notices shall be considered to be effective immediately if
accomplished by hand delivery or facsimile.
If to the BANK:
Branch Banking & Trust Company
0000 Xxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx
If to the OBLIGORS:
PlanGraphics, Inc., a Maryland corporation
PlanGraphics, Inc., a Colorado corporation
Xxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
45. Waiver Of Jury Trial. The parties hereto hereby agree that any suit,
action, or proceeding, whether claim or counterclaim, brought or instituted by
or against any of the OBLIGORS or the BANK, or any of their successors or
assigns, on or with respect to the LINE OF CREDIT, the COLLATERAL, this
AGREEMENT or any other LOAN DOCUMENT, or which in any way relates, directly or
indirectly, to the obligations of any of the OBLIGORS to the BANK under the LINE
OF CREDIT, this AGREEMENT or under any other LOAN DOCUMENT, or the dealings of
the parties with respect thereto, shall be tried only by a court and not by a
jury. THE PARTIES HERETO EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY
SUCH SUIT, ACTION OR PROCEEDING. The OBLIGORS acknowledge and agree that this
provision is a specific and material aspect of the agreement between the parties
and that the BANK would not enter into this AGREEMENT if this provision, or any
other provision of this AGREEMENT, were not contained herein.
`46. Release Of The Bank. As an additional part of this AGREEMENT, and in
consideration for the various agreements of the BANK as set forth herein, the
OBLIGORS, jointly and severally, hereby release, acquit, exonerate and forever
discharge the BANK, all of the BANK'S affiliates, parent corporations and
subsidiaries, and all of the BANK'S past, present and future directors,
officers, employees, agents and attorneys (collectively, the "RELEASED BANK
PARTIES") from any and all claims, causes of action, suits and damages of any
nature (including claims for attorneys' fees), known or unknown, suspected or
unsuspected, which the OBLIGORS jointly or severally ever had or now have
against any or all of the RELEASED BANK PARTIES, including, without limitation,
any and all claims, causes of action, suits or damages which arise out of or are
due to any act, omission, communication, transaction, occurrence,
representation, misrepresentation, promise, breach of fiduciary duty,
negligence, or breach of contract in any way relating or pertaining to the LINE
OF CREDIT, the LOAN DOCUMENTS, the BANK ACCOUNTS, the COLLATERAL and/or the
RELEASED BANK PARTIES' dealings with any of the OBLIGORS. The OBLIGORS hereby
acknowledge that it is their intent to hereby grant to the RELEASED BANK PARTIES
the broadest possible release of all claims or causes of action that they may
have against the RELEASED BANK PARTIES.
IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of the
date first written above with the specific intention of creating an instrument
under seal.
WITNESS/ATTEST: OBLIGORS:
PLANGRAPHICS, INC.,
A Maryland Corporation
By:/S/ Xxxx X. Xxxxxxxxx (SEAL)
--------------------- -------------------------------
Xxxx X. Xxxxxxxxx, President
WITNESS/ATTEST: OBLIGORS:
PLANGRAPHICS, INC.,
A Colorado Corporation
By:/S/ Xxxx X. Xxxxxxxxx (SEAL)
--------------------- -------------------------------
Xxxx X. Xxxxxxxxx, President
/S/ Xxxx X. Xxxxxxxxx (SEAL)
--------------------- ----------------------------
XXXX X. XXXXXXXXX
/S/ Xxxxx X. Xxxxxxxxx (SEAL)
--------------------- -----------------------------
XXXXX X. XXXXXXXXX
BANK:
BRANCH BANKING AND TRUST COMPANY,
A North Carolina Banking Corporation
--------------------- By: /S/ Xxxxxx X. Xxxxxxxxxx (SEAL)
-----------------------------------
Xxxxxx X. Xxxxxxxxxx,
Business Services Officer
ACKNOWLEDGMENTS
STATE OF _________________, CITY/COUNTY of _________________, TO WIT:
I HEREBY CERTIFY, that on this ____ day of October, 2004, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally appeared
XXXX X. XXXXXXXXX, known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, who acknowledged himself to be the
PRESIDENT of PLANGRAPHICS, INC., a Maryland corporation, and who further
acknowledged under oath that he, in such capacity, being authorized to do so,
executed the foregoing instrument for the purposes therein contained on behalf
of PLANGRAPHICS, INC., as PRESIDENT.
IN WITNESS My Hand and Notarial Seal. _________________________(SEAL)
NOTARY PUBLIC
My Commission Expires:
_________________________
STATE OF _________________, CITY/COUNTY of _________________, TO WIT:
I HEREBY CERTIFY, that on this ____ day of October, 2004, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally appeared
XXXX X. XXXXXXXXX, known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, who acknowledged himself to be the
PRESIDENT of PLANGRAPHICS, INC., a Colorado corporation, and who further
acknowledged under oath that he, in such capacity, being authorized to do so,
executed the foregoing instrument for the purposes therein contained on behalf
of PLANGRAPHICS, INC., as PRESIDENT.
IN WITNESS My Hand and Notarial Seal. _________________________(SEAL)
NOTARY PUBLIC
My Commission Expires:
_________________________
STATE OF ___________________, CITY/COUNTY of _________________, TO WIT:
I HEREBY CERTIFY, that on this ____ day of October, 2004, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally appeared
XXXX X. XXXXXXXXX, known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and acknowledged that he executed
the same for the purposes therein contained.
IN WITNESS My Hand and Notarial Seal. _____________________________(SEAL)
NOTARY PUBLIC
My Commission Expires:
_________________________
STATE OF ___________________, CITY/COUNTY of _________________, TO WIT:
I HEREBY CERTIFY, that on this ____ day of October, 2004, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally appeared
XXXXX X. XXXXXXXXX, known to me (or satisfactorily proven) to be the person
whose name is subscribed to the within instrument, and acknowledged that she
executed the same for the purposes therein contained.
IN WITNESS My Hand and Notarial Seal. _____________________________(SEAL)
NOTARY PUBLIC
My Commission Expires:
_________________________
STATE OF _________________, CITY/COUNTY OF________________, TO WIT:
I HEREBY CERTIFY, that on this ____ day of October, 2004, before me, the
undersigned, a Notary Public of the jurisdiction aforesaid, personally appeared
XXXXXX X. XXXXXXXXXX, known to me (or satisfactorily proven) to be the person
whose name is subscribed to the within instrument, who acknowledged himself to
be a Business Services Officer of BRANCH BANKING AND TRUST COMPANY, a North
Carolina banking corporation, and who further acknowledged that he, as such
Business Services Officer, being authorized to do so, executed the foregoing
instrument for the purposes therein contained on behalf of BRANCH BANKING AND
TRUST COMPANY.
IN WITNESS My Hand and Notarial Seal. _____________________________(SEAL)
NOTARY PUBLIC
My Commission Expires:
_________________________
