Exhibit 10.20
AMENDMENT AND WAIVER AGREEMENT
The Bank of Bloomfield Hills ("BBH" or "Lender"), Art Renaissance, Inc.
("Art Ren" or "Borrower"), Xxxxxx X. Xxxxxxxx ("Xxxxxxxx"), Venture Funding,
Ltd. ("Venture"), Venture Funding Holdings, Ltd. ("Venture Holdings"), Growth
Realty, Inc. ("Growth"), Growth Realty Holdings, L.L.C. ("Growth Holdings"), and
Xxxx X. XxXxxxxxxxx, Xx. ("XxXxxxxxxxx") enter into this Amendment and Waiver
Agreement dated July 30, 1999 (this "Agreement"). For convenience, (i) Xxxxxxxx,
Venture, Venture Holdings, Growth, Growth Holdings, and XxXxxxxxxxx in their
capacity as guarantors, are referred to collectively as the "Guarantors", and
individually as a "Guarantor", and (ii) Borrower and Guarantors are referred to
herein collectively as the "Parties", and individually as a "Party".
RECITALS
A. Lender, as lender and secured party, and Borrower, as borrower and
debtor, are parties to a $2,500,000 Loan Agreement dated October 30, 1997 (as
may be amended from time to time, and with all supplements thereto, the
"$2,500,000 Loan Agreement"). Under the $2,500,000 Loan Agreement, Lender made
available to Borrower a secured discretionary line of credit (subject to certain
limitations), up to a maximum principal amount of $2,500,000 in the aggregate at
any time outstanding evidenced by a $2,500,000 Note dated October 30, 1997 (the
"$2,500,000 Line of Credit"). This discretionary line of credit matured on
January 29, 1999. The outstanding principal balance on the $2,500,000 Line of
Credit on July 20, 1999 was $1,128,534.22.
B. Lender, as lender and secured party, and Borrower, as borrower and
debtor, are parties to a $500,000 Loan Agreement dated October 14, 1996 (as may
be amended from time to time, and with all supplements thereto, the "$500,000
Loan Agreement"). Under the $500,000 Loan Agreement, Lender made available to
Borrower a secured discretionary line of credit (subject to certain
limitations), up to a maximum principal amount of $500,000 in the aggregate at
any time outstanding evidenced by a $500,000 Note dated September 22, 1997 (the
"$500,000 Line of Credit"). This discretionary line of credit matured on March
1, 1999. The outstanding principal balance on the $500,000 Line of Credit on
July 20, 1999 was $500,000.
C. Lender, as lender and secured party, and Borrower, as borrower and
debtor, are parties to a $1,550,000 Loan Agreement dated March 29, 1996 (as may
be amended from time to time, and with all supplements thereto, the "$1,550,000
Loan Agreement"). Under the $1,550,000 Loan Agreement, Lender made available to
Borrower a term loan in the original principal amount of $1,550,000 evidenced by
a $1,550,000 Term Note dated March 29, 1996, (the "Term Loan") which matured on
April 1, 1999. The outstanding principal balance on the Term Loan on July 20,
1999 was $980,000.
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D. Borrower executed and delivered to Lender a Security Agreement dated
March 29, 1996 (the "Art Ren Security Agreement"), whereby Borrower granted
Lender a first priority security interest in all of Borrower's then existing and
thereafter acquired assets, including but not limited to, accounts, chattel
paper, general intangibles, instruments, inventory, equipment and fixtures to
secure the Obligations (defined below).
X. Xxxxxxxx executed and delivered to Lender a Security Agreement dated
October 30, 1997 (the "Xxxxxxxx Security Agreement"), whereby Xxxxxxxx granted
to Lender a security interest in works of art owned by Xxxxxxxx and stored in
the Xxxxxx Building (the "Art Work") to secure all of Xxxxxxxx'x obligations to
Lender, including under the Xxxxxxxx Guaranty (defined below) and Xxxxxxxx'x
guaranty of Cellex Biosciences, Inc.'s ("Cellex") obligations owing to Lender,
including the Cellex Obligations (defined below).
F. Venture executed and delivered to Lender, among other things: (1) a
Security Agreement (Pledge) dated October 30, 1997, whereby Venture pledged to
Lender warrants to purchase 858,071 shares of Cellex's common stock to secure
all of Venture's obligations to Lender, including under the Venture Guaranty
(defined below) and Venture's guaranty of Cellex's obligations owing to Lender,
including the Cellex Obligations, and (2) an Assignment of Registration Rights
Agreement dated August 20, 1993, (collectively, the "Venture Security
Agreements").
G. Venture Holdings executed and delivered to Lender a Security Agreement
(Pledge) dated October 30, 1997 (the "Venture Holdings Security Agreement"),
whereby Venture Holdings pledged to Lender warrants to purchase 500,000 shares
of Cellex' common stock to secure all of Venture Holdings' obligations to
Lender, including under the Venture Holdings Guaranty (defined below).
H. Growth executed and delivered to Lender, among other things: (1) a
Security Agreement (Pledge) dated October 30, 1997, whereby Growth pledged to
Lender 244,288 shares of Mego Mortgage Corporation ("Mego Mortgage") common
stock to secure all of Growth's obligations to Lender, including under the
Growth Guaranty (defined below) and Growth's guaranty of Cellex's obligations
owing to Lender, including the Cellex Obligations (the "Growth/Cellex
Guaranty"); (2) a Security Agreement (Pledge) dated February 6, 1997, whereby
Growth pledged to Lender 150,000 share of Mego Financial Corp. ("Mego
Financial") common stock to secure all of Growth's obligations to Lender,
including under the Growth Guaranty and the Growth/Cellex Guaranty; (3) a
Security Agreement (Pledge) dated March 29, 1996, whereby Growth, among other
things, pledged to Lender 153,000 shares of Mego Financial stock to secure all
of its obligations to Lender, including under the Growth Guaranty and the
Growth/Cellex Guaranty; and (4) an Assignment of Cash Balances dated March 29,
1996 securing the obligations of Borrower and Cellex to Lender. All of the
aforementioned security, pledge and assignment agreements listed in this
paragraph are referred to collectively as the "Growth Security Agreements".
I. Growth Holdings executed and delivered to Lender, among other things:
(1) a Security Agreement (Pledge) dated October 30, 1997, whereby Growth
Holdings pledged to
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Lender 235,000 shares of Mego Financial common stock and 111,860 shares of Mego
Mortgage common stock to secure all of Growth Holdings' obligations to Lender,
including under the Growth Holdings Guaranty (defined below), and (2) a Third
Party Pledge Agreement dated August 20, 1997, whereby Growth Holdings pledged to
Lender 250,000 shares of Mego Financial common stock to secure all of Borrower's
obligations to Lender, (collectively, the "Growth Holdings Security
Agreements").
X. XxXxxxxxxxx executed and delivered to Bank One (defined below), among
other things: (1) a Third Party Pledge Agreement dated April 27, 1998, whereby
XxXxxxxxxxx pledged to Bank One 29,000 shares of Mego Financial to secure all of
Borrower's and XxXxxxxxxxx'x obligations to Bank One; (2) a Third Party Pledge
Agreement dated October 14, 1996, whereby XxXxxxxxxxx pledged to Lender 152,000
shares of Mego Financial common stock to secure the Borrower's obligations to
Lender as more fully described therein; and (3) a Third Party Pledge Agreement
and letter dated November 3, 1998, whereby XxXxxxxxxxx pledged 273,000 shares of
Mego Financial common stock to secure the XxXxxxxxxxx Guaranty (defined below),
(collectively, the "McConnaughv Security Agreements").
K. For convenience, all of the foregoing documents, agreements, mortgages,
assignments, and promissory notes set forth in paragraphs A through J, together
with any other documents, instruments, agreements or promissory notes executed
in connection with or in furtherance of any of the foregoing including the
Guarantor Loan Documents (defined below) and the Venture Subordination
Agreement, as amended from time to time, including as amended by this Agreement,
but exclusive of all present or future oral agreements between Lender and the
Borrower, are referred to collectively as the "Loan Documents".
L. All of the obligations of the Borrower, whether then existing or
thereafter created or arising, are guaranteed by (i) Xxxxxxxx pursuant to, among
others, a Guaranty dated October 30, 1997 (the "Xxxxxxxx Guaranty") (ii) Venture
pursuant to, among others, a Guaranty dated October 30, 1997, (the "Venture
Guaranty"); (iii) Venture Holdings pursuant to a Guaranty dated October 30, 1997
(the "Venture Holdings Guaranty"); (iv) Growth pursuant to, among others, a
Guaranty dated October 30, 1997, (the "Growth Guaranty"); (v) Growth Holdings
pursuant to a Guaranty dated October 30, 1997 (the "Growth Holdings Guaranty");
and (vi) XxXxxxxxxxx pursuant to, among others, a Guaranty dated April 27, 1998
(the "XxXxxxxxxxx Guaranty"). For convenience, these guaranties are referred to
collectively as the "Guaranties" and individually as the "Guaranty". The
Guaranties and all other documents and agreements executed by Xxxxxxxx, Venture,
Venture Holdings, Growth, and Growth Holdings, in favor of Lender are referred
to collectively as the "Guarantor Loan Documents", and individually as a
"Guarantor Loan Document".
M. A Subordination Agreement dated March 29, 1996 was executed by Venture
in favor of BBH (the "Venture Subordination Agreement") pursuant to which
Venture (in such capacity, hereinafter referred to as the "Venture Subordinated
Creditor") subordinated the Borrower's obligations to it (the "Venture
Obligations") and the collateral security therefore to the Obligations. Borrower
acknowledges and agrees that based on the Existing Defaults (as defined below)
it does not have the right to, and shall not, make any payments to Venture with
respect to the Venture Obligations, and Venture agrees that it does not have the
right to, and shall
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not, receive any payments with respect to the Venture Obligations, other than
payments made in the ordinary course for reimbursement for reasonable business
expenses of Xxxxxx X. Xxxxxxxx not to exceed $20,000 and credit card expenses
resulting from the ordinary course of business (the "Ordinary Course Payments").
N. On July 20, 1999, there was $2,608,534 in principal owing by Borrower
to Lender under the Loan Documents as follows:
(1) $1,128,534 in principal owing under the $2,500,000 Line of
Credit;
(2) $500,000 in principal owing under the $500,000 Line of Credit;
and
(3) $980,000 in principal owing under the Term Loan;
plus accrued but unpaid interest, costs and expenses (including attorneys' fees)
called for by the Loan Documents (all such obligations together with all other
principal and interest due or becoming due to Lender), together with the payment
of all other sums, indebtedness and liabilities of any and every kind now or
hereafter owing and to become due from the Borrower to Lender, or any of its
affiliates however created, however incurred, evidenced, acquired or arising,
and whether direct or indirect, primary, secondary, fixed or contingent, matured
or unmatured, joint, several, or joint and several, and whether for principal,
interest, reimbursement obligations, indemnity obligations, obligations under
guaranty agreements, fees, costs, expenses, or otherwise, all of Borrower's
obligations under this Agreement, together with all other present and future
obligations of the Borrower to Lender, are referred to collectively as the
"Obligations".
O. On July 16, 1999, there was $648,219.85 in principal owing by Cellex to
Lender under the Cellex loan documents ("Cellex Loan Documents"), plus accrued
but unpaid interest, costs and expenses (including attorneys' fees) called for
by the Cellex Loan Documents (all such obligations together with all other
principal and interest due or becoming due to Lender), together with the payment
of all other sums, indebtedness and liabilities of any and every kind now or
hereafter owing and to become due from Cellex to Lender, or any of its
affiliates however created, however incurred, evidenced, acquired or arising,
and whether direct or indirect, primary, secondary, fixed or contingent, matured
or unmatured, joint, several, or joint and several, and whether for principal,
interest, reimbursement obligations, indemnity obligations, obligations under
guaranty agreements, fees, costs, expenses, or otherwise, together with all
other present and future obligations of the Cellex to Lender, are referred to
collectively as the "Cellex Obligations".
P. The Parties acknowledge and agree that:
(1) the Obligations, the Cellex Obligations, Guarantor's obligations
under the Guarantor Loan Documents, and all other obligations of any one
or more of the Parties to Lender are owing to Lender without setoff,
recoupment, defense or counterclaim, in law or in equity, of any nature or
kind;
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(2) the Obligations are secured by valid, perfected, indefeasible,
enforceable, first priority, liens and security interests in favor of
Lender in, among other things, all of Borrower's present and future
accounts, chattel paper, general intangibles, inventory, equipment,
fixtures, instruments, and all of the collateral granted to the Lender and
Bank One pursuant to the Xxxxxxxx Security Agreement, the Venture Security
Agreements, the Venture Holdings Security Agreement, the Growth Security
Agreements, the Growth Holdings Security Agreements, and the XxXxxxxxxxx
Security Agreements.
(3) the Cellex Obligations are secured by valid, perfected,
indefeasible, enforceable, first priority liens and security interests in
favor of Lender in, among other things, all of Cellex's present and future
accounts, chattel paper, general intangibles, inventory, equipment,
fixtures, instruments, and all of the collateral granted to the Lender
pursuant to the Xxxxxxxx Security Agreement, the Venture Security
Agreements, and the Growth Security Agreements.
For convenience, all collateral referred to in sections (1) and (2) of this
paragraph, together with all other collateral described in the Loan Documents
and all collateral heretofore, simultaneously herewith or hereafter granted to
Lender by any one or more of the Parties to secure any of the Obligations or any
other obligations of the Borrower to Lender, is referred to collectively as the
"Collateral". For convenience, all collateral referred to in section (3) of this
paragraph, together with all other collateral described in the Cellex Loan
Documents and all collateral heretofore, simultaneously herewith or hereafter
granted to Lender by any one or more of the Parties to secure any of the Cellex
Obligations or any other obligations of Cellex to Lender, is referred to
collectively as the "Cellex Collateral".
Q. Each Party reaffirms, ratifies, confirms and approves their obligations
and duties under the Loan Documents, the Guarantor Loan Documents, and the
Venture Subordination Agreement all as modified by this Agreement. Without
limiting the generality of the immediately preceding sentence, the Borrower and
Guarantors, jointly and severally, hereby reaffirms, ratifies, confirms and
approves its/his/her obligations and duties under the Loan Documents, the
Guarantor Loan Documents, the Venture Subordination Agreement, and the
provisions herein, and acknowledges and agrees that the Guarantor Loan Documents
extend to and cover all of the Obligations, including the sums described in
Paragraph N above. Each Party, jointly and severally, reaffirms, ratifies and
confirms the liens, assignments and security interests granted to Lender in the
Collateral under the Loan Documents or otherwise.
X. Xxxxxxxx, Venture and Growth each reaffirms, ratifies, confirms and
approves its/his obligations and duties under the Cellex Loan Documents and the
applicable Guarantor Loan Documents all as they relate to the Cellex
Obligations, and acknowledges and agrees that the applicable Guarantor Loan
Documents extend to and cover all of the Cellex Obligations, including the sums
described in Paragraph 0 above. Xxxxxxxx, Venture and Growth, jointly and
severally, reaffirms, ratifies and confirms the liens, assignments and security
interests granted to Lender in the Cellex Collateral under the Cellex Loan
Documents or otherwise.
S. The Borrower and Venture reaffirm, ratify, confirm and approve their
obligations and duties under the Loan Documents and the Venture Subordination
Agreement, as modified by
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this Agreement.
T. Each Party acknowledges and agrees that through a Participation
Agreement dated October 30, 1997, a Participation Agreement dated September 1,
1997, and a Participation Agreement dated March 29, 1996 (collectively, the
"Participations"), Bank One, Michigan, formerly known as NBD Bank ("Bank One")
participated with Lender in the $2,500,000 Line of Credit, the $500,000 Line of
Credit, and the Term Loan.
U. For convenience, the following described defaults are referred to
collectively as the "Existing Defaults." Each Party represents and warrants,
after due inquiry and investigation, that it is not aware of any other Events of
Default, Events of Acceleration Defaults, Defaults, or defaults, or of any event
which, with the passage of time, notice, or both, would become an Event of
Default, Event of Acceleration, Default, or a default under the Loan Documents
or this Agreement. The Borrower is in default under the Loan Documents for the
following reasons:
1. the $2,500,000 Line of Credit, the $500,000 Line of Credit,
and the Term Loan have matured and have not been repaid, and
2. the Margin Requirement (as defined in the $2,500,000 Loan
Agreement) was exceeded.
V. By letter dated August 31, 1998, Lender and Bank One informed Borrower,
Xxxxxxxx, Venture, Venture Holdings, Growth, and Growth Holdings (collectively,
the "Pledgors") that if a plan of action relating to the Borrower and Cellex was
not received by the September 11, 1998, Lender and Bank One would proceed to
liquidate the Mego Financial stock pledged by the Pledgors securing the
Obligations. Since a plan of action was not received by the September 11, 1998,
Lender has the right to liquidate the Mego Financial stock in accordance with
the Loan Documents.
W. Each Party also acknowledges that based on the Existing Defaults,
Lender has the right, without further notice, to enforce its rights under the
Loan Documents, the Guarantor Loan Documents, the Venture Subordination
Agreement and applicable law. Further, if Lender took such action, each Party
acknowledges that Lender's actions would be within Lender's rights under the
Loan Documents, the Guarantor Loan Documents, the Venture Subordination
Agreement, and applicable law, and would be reasonable and appropriate under the
circumstances.
X. Each Party acknowledges and agrees that (i) Lender has fully performed
all of its obligations under the Loan Documents, the Guarantor Loan Documents,
and the Venture Subordination Agreement; (ii) Lender has no obligation to
continue to lend to Borrower, or to waive its rights and remedies beyond the
Waiver Period (as hereinafter defined); (iii) any loans made after the date of
this Agreement will continue to be made in Lender's sole discretion; and (iv)
Lender has made no representations of any nature or kind that funding in any
amount will continue, or that the Waiver Period (as hereinafter defined) will be
extended beyond the expiration thereof.
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Y. Each Party further acknowledges and agrees that the actions taken by
Lender to date in furtherance of the Loan Documents, the Guarantor Loan
Documents, and the Venture Subordination are reasonable and appropriate under
the circumstances and are within Lender's rights under the Loan Documents, the
Guarantor Loan Documents, the Venture Subordination Agreement and applicable
law.
Z. Each Party represents and warrants to Lender that it received direct
and substantial economic benefit from all of the Obligations and that it will
continue to receive direct and substantial economic benefit from such loans, and
from any other loans made or which may be made in the future.
AA. The Parties have requested that Lender agree to waive its rights and
remedies under the Loan Documents and applicable law in connection with the
Existing Defaults until December 31, 1999 and agree to amend and/or amend and
restate certain terms and conditions of the Loan Documents.
AB. Subject to the terms and conditions of this Agreement, and in reliance
on the each Party's agreements, acknowledgments, representations, and warranties
in this Agreement, Lender has agreed to amend the Loan Documents, and waive its
rights and remedies on account of the Existing Defaults under the Loan Documents
as set forth below.
AGREEMENT
Based on the foregoing Recitals (which are incorporated herein as
agreements, representations, warranties, and covenants of Borrower, as the case
may be), and for other good and valuable consideration, the adequacy and receipt
of which is acknowledged by the Parties, Lender and the Parties agree as
follows:
1. Waiver. Subject to the following conditions and those set forth below,
Lender agrees to waive the Existing Defaults through December 31, 1999 (the
"Waiver Period"):
(a) Lender receives, on or before July 26, 1999, a fully executed
copy of this Agreement, acknowledged by counsel to each of the Parties as
provided below, together with fully executed copies of all Exhibits hereto that
require signature, and
(b) there are no further or additional Events of Default, Defaults,
defaults or Events of Acceleration under the Loan Documents (including a
worsening of the Existing Defaults), and each Party complies with all terms and
conditions of this Agreement and the Loan Documents.
2. Cross Collateralization. The Parties agree that all collateral granted
by any one or more of the Parties to Lender or any of its affiliates securing
any or all of the Obligations, including the Collateral, is collateral for all
of the Obligations.
3. Defaults. In addition to any other Events of Default, Defaults,
defaults or Events
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of Acceleration provided for in the Loan Documents, and without waiver of the
demand and discretionary provisions of the Loan Documents, the occurrence of any
of the following constitutes an Event of Default, a Default, a default, and an
Event of Acceleration under this Agreement (and each Loan Document):
(a) If any Party fails to comply with any term or condition in
this Agreement (or any agreement referred to or incorporated
herein) or the Loan Documents (other than the Existing
Defaults), or any other document or agreement between any
Party and Lender.
(b) If any material adverse change occurs in any Party's financial
condition or business prospects.
(c) If any lender, supplier, creditor, lessor, bond holder or
representative thereof (collectively, "Creditor") of any Party
shall (i) obtain a judgment against any Party in excess of
$100,000 in the aggregate (with the exception of the American
Monitor judgment against Xxxxxxxx in an amount not exceeding
$300,000) or (ii) receive from Borrower any prepayments of
obligations.
(d) If any representation or warranty made by any Party in this
Agreement or in connection with the negotiation hereof is
materially untrue as of the date made or hereafter becomes
materially untrue.
(e) If any party attaches by way of seizure, xxxx, xxxx or
otherwise of any assets of any one or more of the Parties.
(f) If the filing of any notice of lien, levy or assessment by any
government, department or agency or the fact that any taxes or
debts are owing become a lien or encumbrance upon any assets
of any one or more of the Parties.
(g) If the Tax Liens listed on Exhibit A are not resolved
satisfactory to Lender in Lender's sole discretion by no later
than August 15, 1999.
(h) If Borrower is not in good standing in the state of Delaware
and shows Lender evidence to that fact, satisfactory to Lender
in Lender's sole discretion, by no later than August 15, 1999.
4. Waiver Fee: As consideration for Lender entering into this Agreement,
the Parties must pay Lender the sum of $10,000 payable as follows: $5,000 upon
execution of this
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Agreement and $5,000 on December 31, 1999 if the Obligations have not been
repaid by then. The Parties agree that this fee is fully earned by Lender upon
execution of this Agreement.
5. Pricing: Effective immediately, the pricing under the $2,500,000 Line
of Credit, the $500,000 Line of Credit, and the Term Loan (the "Notes") will be
increased to the following:
On the basis of a year of 360 days for the actual number of days
elapsed in each month, at a rate of 3.0 percentage points per annum more
than the Prime Rate of interest (the "Standard Rate"), and after maturity
(whether upon demand for payment, expiration of term, termination,
acceleration, or otherwise) or the occurrence of a default under the Loan
Documents, including under this Agreement, at a rate of 3 percentage
points per annum more than the Standard Rate until paid. In no event,
however, may the rate of interest be more than the highest rate permitted
by law. The "Prime Rate" is the rate of interest that Lender from time to
time announces to be its Prime Rate. The Prime Rate is set by Lender based
upon various factors, including its costs and desired return, general
economic conditions and other factors and is used as a reference point for
pricing some loans. Lender may make loans at, above or below the Prime
Rate. Any change in the Prime Rate immediately effects a change in the
rate of interest payable under the Notes.
6. No Further Waiver Implied. Each Party acknowledges that Lender has no
obligation to continue making loans or extend the term of the Waiver Period or
waive its rights and remedies after the Waiver Period, and nothing contained
herein or otherwise is intended to be or is a promise or agreement to continue
making loans, or extend the term of the Waiver Period beyond the expiration
thereof. Furthermore, no future agreement by Lender to continue making loans, or
to extend the term of the Waiver Period beyond the expiration thereof, or any
other agreement, is valid or enforceable unless it is contained in a written
agreement signed by Lender.
7. Additional Reporting. In addition to any reports or information
required by the Loan Documents (which must be provided timely), or that Lender
may hereafter request, each Party must provide Lender with:
(a) Within one day of receipt, copies of written notices of
default received from other creditors.
(b) Within one day of gaining knowledge thereof, any adverse
information regarding any Party.
8. Expenses, Fees and Costs; Indemnification.
(a) Each Party, jointly and severally, shall be responsible for the
payment of all reasonable fees and out-of-pocket disbursements incurred by
Lender, including fees of counsel and court costs, in any way arising from or in
connection with this Agreement, any
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Collateral, any Loan Document, any Obligations, or the business relationship
between Lender, on the one hand, and any one or more of the Parties, on the
other hand, including, without limitation: (1) Audit Fees (as defined below);
(2) all fees and expenses (including recording fees and insurance policy fees)
of Lender and counsel for Lender for the preparation, examination, approval,
negotiation, execution and delivery of, or the closing of any of the
transactions contemplated by, this Agreement or any of the Loan Documents; (3)
all fees and out-of-pocket disbursements incurred by Lender, including
attorneys' fees and consultants' fees (including the Consultant's fee), in any
way arising from or in connection with any action taken by Lender to monitor,
advise, administer, enforce or collect any of the Obligations (including under
this Agreement, the Guarantor Loan Documents, any other Loan Document, or
otherwise) or any other obligations of any one or more of the Parties, whether
joint, joint and several, or several, under this Agreement, any Loan Document,
any other existing or future document or agreement, or arising from or relating
to the business relationship between Lender, on the one hand, and any one or
more of the Parties, on the other hand, or otherwise securing any of the
Obligations, including any actions to lift the automatic stay or to otherwise in
any way monitor or participate in any bankruptcy, reorganization or insolvency
proceeding of any one or more of the Parties; (4) all expenses and fees
(including attorneys' fees) incurred in relation to, in connection with, in
defense of or in prosecution of any litigation instituted by any one or more of
the Parties, Lender, or any third party, against or involving Lender arising
from, relating to, or in connection with any of the Obligations, or any one or
more of the Parties' other obligations, this Agreement, any Collateral, any Loan
Document, or the business relationship between Lender, on the one hand, and any
one or more of the Parties, on the other hand, including any so-called "lender
liability" action, any claim and delivery or other action for possession of, or
foreclosure on, any of the Collateral, post-judgment enforcement of any rights
or remedies including enforcement of any judgments, and prosecution of any
appeals (whether discretionary or as of right and whether in connection with
prejudgment or post-judgment matters); (5) all costs, expenses, and fees
incurred by Lender or its agents in connection with appraisals and reappraisals
of all or any of the Collateral (and each Party must fully cooperate with such
appraisers and make their property available for appraisal in connection with as
many appraisals as Lender may request); and (6) all costs, expenses, and fees
incurred by Lender or its counsel in connection with consultants, expert
witnesses, or other professionals retained by Lender or its counsel, to assist,
advise, or give testimony with respect to any matter relating to the Collateral,
the Obligations, the Loan Documents, or the business relationship between
Lender, on the one hand, and any one or more of the Parties, on the other hand
(and each Party must fully cooperate with such consultant, expert witness or
other professional and shall make their premises, books and records, accounting
systems, computer systems and other media for the recordation of information
available to such persons). Each Party's agreement, jointly and severally, to be
responsible for Lender's attorneys' fees and costs applies regardless of whether
or not Lender prevails in whole or in part in any action, proceeding,
litigation, or otherwise, and regardless of the nature of any action or
litigation or the theories or bases of recovery or defense. Each Party, jointly
and severally, agrees to indemnify Lender for all Claims (as hereinafter
defined) which may be imposed on, incurred by, or asserted against Lender in
connection with this Agreement, any Loan Document, or the transactions
contemplated hereby or thereby, or the business relationship between Lender, on
the one hand, and any one or more of the Parties, on the other hand.
(b) All of the foregoing costs, expenses, reimbursement obligations,
and
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indemnification obligations are part of the Obligations and are secured by all
of the Collateral.
(c) "Claims" means any demand, claim, action or cause of action,
damage, liability, loss, cost, debt, expense, obligation, tax, assessment,
charge, lawsuit, contract, agreement, undertaking or deficiency, of any kind or
nature, whether known or unknown, fixed, actual, accrued or contingent,
liquidated or unliquidated (including interest, penalties, attorneys' fees and
other costs and expenses incident to proceedings or investigations relating to
any of the foregoing or the defense of any of the foregoing), whether or not
litigation has commenced.
9. Verification of Accounts/Audits. The Borrower agrees that Lender,
through its employees or authorized agents, is permitted to send a letter to and
otherwise contact the Borrower's account debtors to verify account receivable
balances. In addition, Lender shall be permitted full and complete access to the
Borrower's facilities, and books and records to conduct audits as often as
Lender reasonably desires. The cost of such audits is part of the Obligations,
is secured by all Collateral, and must be paid by the Borrower within 30 days of
receipt of an invoice therefor (the "Audit Fees"). The Audit Fees are in
addition to all other interest, fees, costs, and expenses provided for in the
Loan Documents or this Agreement.
10. Other Documents. Each Party must execute any documents reasonably
requested by Lender to carry out the intent of or to implement this Agreement,
the Guarantor Loan Documents or any other Loan Document.
11. Cross Default/Remedies. An Event of Default, Default, a default or
Event of Acceleration under this Agreement (or any agreement referred to or
incorporated herein) is an Event of Default, Default, a default, or an Event of
Acceleration under each document and agreement comprising the Loan Documents
(including the Guarantor Loan Documents), and an Event of Default, Default, a
default, or an Event of Acceleration under any document or agreement comprising
the Loan Documents is an Event of Default, Default, a default, or an Event of
Acceleration under the terms of this Agreement (and all agreements referred to
or incorporated herein). Immediately upon the occurrence of an Event of Default,
Default, a default, or an Event of Acceleration under this Agreement or any Loan
Document (or any document executed in connection herewith or referenced herein),
and without notice or an opportunity to cure such Event of Default, Default,
default, or an Event of Acceleration, Lender has the right to exercise any
remedies provided in this Agreement, the Loan Documents, and under applicable
law, and the Waiver Period will automatically expire at Lender's election,
without further notice and, at Lender's election but without notice, all of each
Party's obligations to Lender (including the Obligations and the Guarantor's
obligations under the Guarantor Loan Documents) will be immediately due and
payable, and Lender may cease making loans immediately. In any event, from and
after the earlier of expiration of the Waiver Period or the occurrence of an
Event of Default, Default, a default, or an Event of Acceleration under this
Agreement or any Loan Document, Lender may immediately take action to enforce
its rights and remedies under the Loan Documents (including enforcement action
on account of the Default), this Agreement, or applicable law, including
collecting the Obligations and foreclosing on the Collateral. Absent the prior
occurrence of an Event of Default, Default, default, or an Event of Acceleration
or prior demand for payment, all Obligations, and each Guarantor's obligations
under the Guarantor Loan Documents are due and payable in full at the expiration
of the Waiver
-11-
Period. Any references in cross default provisions under this Agreement or any
document or agreement executed in connection herewith or the Loan Documents to a
"default", "Default", or an "Event of Default" will include a default under this
Agreement.
12. Loan Documents and Guaranties Continue. Except as expressly modified
and amended by the terms of this Agreement, all other terms and conditions of
the Loan Documents (including the Guarantor Loan Documents) remain in full force
and effect and are hereby ratified, confirmed, and approved. If there is an
express conflict between the terms of this Agreement and the terms of the Loan
Documents, including the Loan Documents executed in connection herewith, the
terms of this Agreement govern and control.
13. Subordinated Creditors' Obligations. The Borrower acknowledges and
agrees that the Subordination Agreements remain in full force and effect and are
hereby ratified, confirmed and approved and agree that, except as otherwise
provided herein, they shall not make any payments with respect to the
subordinated debt until such time as the Obligations have been paid in full,
with the exception that Venture can receive the Ordinary Course Payments.
14. Reservation of Rights /No Waivers.
(a) This Agreement grants a limited waiver until the expiration of
the Waiver Period on the terms and conditions set forth in this Agreement.
Except for such waiver through the expiration of the Waiver Period, all of
Lender's rights and remedies against each Party and the Collateral are expressly
reserved, including all rights and remedies resulting from, or arising in
connection with, the Existing Defaults. Likewise, nothing herein is a waiver of
any Existing Defaults existing as of the date hereof, an agreement to consent to
further worsening of such Existing Defaults, or new Events of Default, Defaults,
defaults, or Events of Acceleration or in any way prejudices Lender's rights and
remedies under the Loan Documents (including the Guarantor Loan Documents) or
applicable law. Further, Lender has the right to waive any terms, provisions, or
conditions in this Agreement or the Loan Documents, in its sole discretion, and
any such waiver does not prejudice, waive, or reduce any other right or remedy
which Lender may have against any one or more of the Parties. No waiver of
rights or any condition of this Agreement, the Loan Documents, or any other
agreement by Lender is effective unless the same is contained in a writing
signed by an authorized agent of Lender.
(b) ANYTHING CONTAINED IN THIS AGREEMENT OR IN ANY OTHER AGREEMENT
TO THE CONTRARY NOTWITHSTANDING, NOTHING CONTAINED IN THIS AGREEMENT OR IN ANY
OTHER AGREEMENT RESTRICTS OR PROHIBITS LENDER'S RIGHT TO BLOCK, STOP OR PROHIBIT
PAYMENTS TO ANY SUBORDINATED CREDITOR(S) ON ACCOUNT OF THE EXISTING DEFAULTS OR
OTHERWISE.
15. Credit Inquiries. In the event customers, buyers, investors, potential
alternative financing sources, or other parties ask Lender about the current
lending relationship among Lender and any one or more of the Parties, each Party
agrees that Lender may refer such inquiries to the appropriate Party.
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16. Entire Agreement, Etc.
(a) This Agreement and the Exhibits hereto constitute the Parties'
and Lender's entire understanding with respect to the subject mater hereof.
Modifications or amendments to this Agreement must be in writing and signed by
the party to be charged in order to be effective. This Agreement is governed by
the internal laws of the State of Michigan (without regard to conflicts of law
principles). This Agreement is binding on each Party and their respective
successors, assigns, heirs, and personal representatives and shall inure to
Lender's benefit and the benefit of its successors and assigns. If any provision
of this Agreement conflicts with any applicable statute or law, or is otherwise
unenforceable, such offending provision is null and void only to the extent of
such conflict or unenforceability, and is deemed separate from and does not
invalidate any other provision of this Agreement.
(b) This Agreement is being entered into among competent persons,
who are experienced in business and represented by counsel (or who have had the
opportunity to be represented by counsel), and has been reviewed by the Parties
and their counsel, if any. Therefore, any ambiguous language in this Agreement
will not necessarily be construed against any particular party as the drafter of
such language.
(c) This Agreement may be executed in any number of counterparts
with the same effect as if all signatories had signed the same document. All
counterparts must be construed together to constitute one instrument. Facsimile
copies of signatures are to be treated as original signatures for all purposes.
(d) References in the Loan Documents and all other documents
executed in connection with the Loan Documents (as each of the foregoing is
amended hereby) to the Loan Documents mean the Loan Documents as amended by this
Agreement.
(e) The term "including" means including, without limitation, and
the term "includes" means includes, without limitation.
(f) All headings are inserted for convenience only and do not affect
the construction or interpretation of this Agreement.
17. Additional Representations. Each Party represents and warrants to
Lender that:
(a) (i) Borrower's execution, delivery, and performance of this
Agreement and all agreements and documents delivered in connection herewith by
Borrower have been duly authorized by all necessary corporate action and does
not and will not require any consent or approval of its stockholders, violate
any provision of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to it or
of its articles of incorporation or bylaws, or result in a breach of or
constitute a default under any indenture or loan or credit agreement or any
other agreement, lease or instrument to which Borrower is a party or by which it
or their properties may be bound or affected; (ii) no authorization, consent,
approval, license, exemption of or filing a registration with any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or
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foreign, is or will be necessary to the valid execution, delivery or performance
by Borrower of this Agreement and all agreements and documents delivered in
connection with this Agreement; and (iii) this Agreement and all agreements and
documents delivered pursuant hereto by any one or more of the Parties are the
legal, valid and binding obligations of each such Party enforceable against each
such Party in accordance with the terms thereof.
(b) After giving effect to the amendments contained herein and
effected pursuant hereto, all representations and warranties contained in the
Loan Documents are true and correct on and as of the date hereof with the same
force and effect as if made on and as of the date hereof.
(c) Except for the Existing Defaults, each Party has duly and
properly performed, complied with and observed each of its covenants,
agreements, and obligations contained in the Loan Documents.
(d) Borrower's financial statements, for the fiscal years ended 1997
and 1998, copies of which have been furnished to Lender, fairly present
Borrower's financial condition at such dates and the results of Borrower's
operations for the periods indicated, all substantially in accordance with
generally accepted accounting principles applied on a consistent basis.
(e) No Party or any one or more of them has assigned any claim, set
off or defense to any individual or entity.
(f) This Agreement and all of the Exhibits and other written
material delivered by any one or more of the Parties to Lender in connection
with the transactions contemplated hereby do not contain any statement that is
false or misleading with respect to any material fact and do not omit to state a
material fact necessary in order to make the statements therein not false or
misleading. There is no additional fact of which any Party is aware that has not
been disclosed in writing to Lender that materially affects adversely or, so far
as each Party can reasonably foresee, will materially affect adversely any
Party's financial condition or business prospects.
(g) All Parties executing this Agreement in a representative
capacity warrant that they have authority to execute this Agreement and legally
bind the entity they represent.
18. Survival; Reliance. All agreements, representations and warranties
made in this Agreement (and all agreements referred to or incorporated herein)
survive the execution of this Agreement (and all documents and agreements
referred to or incorporated herein). Notwithstanding anything in this Agreement
(or any documents or agreements referred to or incorporated herein) to the
contrary, no investigation or inquiry by Lender (including by its agents) with
respect to any matter which is the subject of any representation, warranty,
covenant or other agreement set forth herein or therein is intended, nor shall
it be interpreted, to limit, diminish or otherwise affect the full scope and
effect of any such representation, warranty, covenant or other agreement. All
terms, covenants, agreements, representations and warranties of each Party made
herein (or in any documents or agreements referred to or incorporated herein),
or in any certificate or other document delivered or to be delivered pursuant
hereto, are
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deemed to be material and to have been relied upon by Lender, notwithstanding
any investigation heretofore or hereafter made by Lender or its agents.
19. Notices. Any notice or other communication required or permitted to be
given under this Agreement or any of the Loan Documents must be in writing and
delivered personally, telegraphed, telecopied or telexed, or mailed (by
certified or registered mail or by recognized overnight courier), postage
prepaid, and is deemed given when so delivered personally, telegraphed or
telexed, or if mailed, two days after the date of mailing, addressed as follows
(or to any another address as to which any party so advises the other parties in
writing):
(a) If to Borrower: Art Renaissance, Inc.
000 Xxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Telecopy: (___) _________
With a copy to: _________________________
_________________________
_________________________
Attn: ___________________
Telecopy: (___) _________
(b) If to Lender: The Bank of Bloomfield Hills
000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx Xxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxx
Vice Chairman
Telecopy: (000) 000-0000
With a copy to: Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx
0000 Xxxxx Xxxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
20. Discretionary Loans; Demand Obligations. Notwithstanding any
provisions of this Agreement, it is understood and agreed that Lender is at no
time obligated to make any loan, despite compliance with any express conditions
precedent thereto, and Lender may at any time make demand for payment of the
Obligations, notwithstanding that there may then exist no Event of Default,
Default, default or Event of Acceleration.
21. Impairment of Collateral. The execution and delivery of this Agreement
(and all agreements and documents referred to herein) does not impair or affect
any other security (by endorsement or otherwise) for the Obligations, or any one
or more of the Parties' other
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obligations to Lender. No security taken before or after as security for the
Obligations impairs or affects this Agreement (or any agreement or document
referred to herein). All present and future additional security is to be
considered as cumulative security.
22. Time Is of the Essence. Each Party acknowledges and agrees that time
is of the essence as to each and every term and provision of this Agreement and
each Loan Document.
23. Adverse Events. Promptly upon gaining knowledge thereof or at such
time as any Party should have known thereof, each Party must inform Lender of
the occurrence of any Event of Default, Default, default, or Event of
Acceleration, or any event which with the lapse of time or service of notice or
both would constitute an Event of Default, Default, default, or Event of
Acceleration under this Agreement or any of the Loan Documents, or of any other
occurrence which has or could reasonably be expected to have a materially
adverse effect on any Party's business, properties, or financial condition or
upon any Party's ability to comply with its obligations under this Agreement or
the Loan Documents (including the Guarantor Loan Documents).
24. Non-Waiver. No failure or delay on the part of Lender in the exercise
of any power or right, and no course of dealing between any one or more of the
Parties and Lender, operates as a waiver of such power or right, nor shall any
single or partial exercise of any power or right preclude other or further
exercise thereof or the exercise of any other power or right. The remedies
provided for herein are cumulative and not exclusive of any remedies which may
be available to Lender at law or in equity. No notice to or demand on any Party
not required hereunder or under the Loan Documents entitles any such Party to
any other or further notice or demand in similar or other circumstances, or
waives Lender's right to any other or further action in any circumstances
without notice or demand. Any waiver of any provision of this Agreement or the
Loan Documents and any consent to any departure by any one or more of the
Parties from the terms of any provision of this Agreement or the Loan Documents,
is effective only if in writing signed by an authorized officer of Lender, and
only in the specific instance and for the specific purpose for which given.
25. No Other Promises or Inducements. There are no promises or inducements
which have been made to any signatory hereto to cause such signatory to enter
into this Agreement other than those which are set forth in this Agreement.
26. Additional Agreements. Prior to or simultaneously with the execution
and delivery of this Agreement, the Parties shall cause to be executed and
delivered to the following:
a. Amended and Restated Continuing Security Agreement executed by
Borrower in the form of Exhibit B attached hereto and made a part hereof;
b. the UCC Financing Statements in the forms of Exhibit C attached
hereto and made a part hereof; and
such other financing statements, resolutions, searches and other documents and
agreements reasonably required by Lender, to effectuate the transactions
contemplated by this Agreement.
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27. Payments to Shareholders. Effective immediately, all dividends,
distributions and other payments to shareholders, present or future, whether by
way of stock redemption or deferred compensation, principal or interest, shall
cease in their entirety with the exception of the Ordinary Course Payments to
Xxxxxxxx.
28. STATUTE OF FRAUDS. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. ALL PRIOR AND
CONTEMPORANEOUS ORAL AGREEMENTS, IF ANY, BETWEEN LENDER OR BANK ONE, ON THE ONE
HAND, AND ANY ONE OR MORE OF THE PARTIES, ON THE OTHER HAND, ARE MERGED INTO
THIS AGREEMENT AND DO NOT SURVIVE THE EXECUTION OF THIS AGREEMENT.
29. RELEASE. AS OF THE DATE HEREOF EACH PARTY REPRESENTS AND WARRANTS THAT
THEY ARE AWARE OF, AND POSSESS, NO CLAIMS OR CAUSES OF ACTION AGAINST LENDER OR
BANK ONE. NOTWITHSTANDING THIS REPRESENTATION AND AS FURTHER CONSIDERATION FOR
THE AGREEMENTS AND UNDERSTANDINGS HEREIN, EACH PARTY INDIVIDUALLY, JOINTLY,
SEVERALLY, AND JOINTLY AND SEVERALLY, IN EVERY CAPACITY, INCLUDING BUT NOT
LIMITED TO, AS SHAREHOLDERS, OFFICERS, PARTNERS, DIRECTORS, INVESTORS, OR
CREDITORS OF ANY ONE OR MORE OF THE PARTIES, EACH OF ITS EMPLOYEES, AGENTS,
EXECUTORS, SUCCESSORS AND ASSIGNS, HEREBY RELEASES LENDER AND BANK ONE, EACH OF
ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, AFFILIATES, SUBSIDIARIES,
SUCCESSORS AND ASSIGNS FROM ANY LIABILITY, CLAIM, RIGHT OR CAUSE OF ACTION WHICH
NOW EXISTS, OR HEREAFTER ARISES, WHETHER KNOWN OR UNKNOWN, ARISING FROM OR IN
ANY WAY RELATED TO FACTS IN EXISTENCE AS OF THE DATE HEREOF. BY WAY OF EXAMPLE
AND NOT LIMITATION, THE FORGOING INCLUDES ANY CLAIMS IN ANY WAY RELATED TO
ACTIONS TAKEN OR OMITTED TO BE TAKEN BY LENDER OR BANK ONE UNDER THE LOAN
DOCUMENTS, THE GUARANTOR LOAN DOCUMENTS, THE BUSINESS RELATIONSHIP WITH LENDER
OR BANK ONE AND ALL OTHER OBLIGATIONS OF ANY NATURE OR KIND OF ANY ONE OR MORE
OF THE PARTIES, ANY ORAL AGREEMENTS OR UNDERSTANDINGS (ACTUAL OR ALLEGED), ANY
BANKING RELATIONSHIPS THAT ANY ONE OR MORE OF THE PARTIES HAS OR MAY HAVE HAD
WITH LENDER OR BANK ONE AT ANY TIME AND FOR ANY REASON INCLUDING, BUT NOT
LIMITED TO, DEMAND DEPOSIT ACCOUNTS, OR OTHERWISE.
30. WAIVER OF JURY TRIAL AND BOND; SUBMISSION TO JURISDICTION; AND
ACKNOWLEDGMENT.
(a) ANY JUDICIAL PROCEEDING AGAINST ANY ONE OR MORE OF THE PARTIES
BROUGHT BY LENDER OR BANK ONE WITH RESPECT TO
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ANY TERM OR CONDITION OF THIS AGREEMENT, THE LOAN DOCUMENTS, THE GUARANTOR LOAN
DOCUMENTS, OR ANY OTHER PAST, PRESENT OR FUTURE AGREEMENT BETWEEN ANY ONE OR
MORE OF THE PARTIES AND LENDER OR BANK ONE MAY BE BROUGHT BY LENDER OR BANK ONE
IN A COURT OF COMPETENT JURISDICTION IN THE STATE OF MICHIGAN, UNITED STATES OF
AMERICA, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY, LENDER
AND BANK ONE ACCEPT FOR THEMSELVES AND IN CONNECTION WITH THEIR RESPECTIVE
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY FINAL JUDGMENT
RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT, THE LOAN DOCUMENTS, THE
GUARANTOR LOAN DOCUMENTS, OR ANY OTHER PRESENT AND FUTURE AGREEMENT BETWEEN ANY
ONE OR MORE OF THE PARTIES, LENDER, AND BANK ONE EACH PARTY WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON THEM, AND CONSENTS THAT ALL SUCH SERVICE OF
PROCESS MAY BE MADE BY MAIL OR MESSENGER DIRECTED TO IT AT ITS ADDRESS SET FORTH
IN THIS AGREEMENT. EACH PARTY WAIVES ANY BOND OR SURETY OR SECURITY UPON SUCH
BOND OR SURETY WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF LENDER. NOTHING
CONTAINED IN THIS SECTION AFFECTS LENDER'S OR BANK ONE'S RIGHT TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECTS LENDER'S OR BANK ONE'S
RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST ANY ONE OR MORE OF THE PARTIES
OR ANY ONE OR MORE OF THEIR PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTION.
ANY JUDICIAL PROCEEDING BY ANY PARTY AGAINST LENDER OR BANK ONE INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED
TO OR CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY PAST, PRESENT OR
FUTURE AGREEMENT BETWEEN ANY ONE OR MORE OF THE PARTIES AND LENDER OR BANK ONE,
MUST BE BROUGHT ONLY IN A COURT LOCATED IN THE STATE OF MICHIGAN. EACH PARTY
WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED
HEREUNDER OR IN CONNECTION HEREWITH AND MAY NOT ASSERT ANY DEFENSE BASED ON LACK
OF JURISDICTION OR VENUE OR BASED UPON FORUM NONCONVENIENS.
(b) EACH PARTY ACKNOWLEDGES THAT (1) IT HAS FULLY READ ALL OF THIS
AGREEMENT AND HAS BEEN GIVEN THE OPPORTUNITY TO CONSULT WITH COUNSEL AND OTHER
ADVISORS OF ITS CHOICE, AND AFTER CONSULTING WITH SUCH COUNSEL OR ADVISORS,
KNOWINGLY, VOLUNTARILY AND WITHOUT DURESS, COERCION, UNLAWFUL RESTRAINT,
INTIMIDATION OR COMPULSION, ENTER INTO THIS AGREEMENT, BASED UPON SUCH ADVICE
AND COUNSEL AND IN THE EXERCISE OF ITS BUSINESS JUDGMENT, (2) THIS AGREEMENT HAS
BEEN ENTERED INTO IN EXCHANGE FOR GOOD AND VALUABLE CONSIDERATION, RECEIPT OF
WHICH THE PARTY HERETO ACKNOWLEDGES, (3) IT HAS CAREFULLY AND COMPLETELY
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READ ALL OF THE TERMS AND PROVISIONS OF THIS AGREEMENT AND IS NOT RELYING ON THE
OPINIONS OR ADVICE OF LENDER OR BANK ONE OR ITS AGENTS OR REPRESENTATIVES IN
ENTERING INTO THIS AGREEMENT.
(c) THE PARTIES HERETO ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY
IS A CONSTITUTIONAL RIGHT, BUT THAT THIS RIGHT MAY BE WAIVED. LENDER, BANK ONE,
AND EACH PARTY EACH HEREBY KNOWINGLY, VOLUNTARILY AND WITHOUT COERCION, WAIVE
ALL RIGHTS TO A TRIAL BY JURY OF ALL DISPUTES ARISING OUT OF OR IN RELATION TO
THIS AGREEMENT, THE LOAN DOCUMENTS, THE GUARANTOR LOAN DOCUMENTS, OR ANY OTHER
AGREEMENTS BETWEEN ANY OF THE PARTIES. NO PARTY WILL BE DEEMED TO HAVE
RELINQUISHED THE BENEFIT OF THIS WAIVER OF JURY TRIAL UNLESS SUCH RELINQUISHMENT
IS IN A WRITTEN INSTRUMENT SIGNED BY THE PARTY TO WHICH SUCH RELINQUISHMENT WILL
BE CHARGED. EACH PARTY, BANK ONE AND LENDER AGREE THAT ANY OF THEM MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF ITS CONSENT TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY AND THE
OTHER AGREEMENTS SET FORTH IN THIS AGREEMENT.
THE BANK OF BLOOMFIELD HILLS
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Xxxxxx X. Xxxxx, Vice Chairman
ACKNOWLEDGED AND AGREED:
WITNESS ART RENAISSANCE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------- ----------------------------------
Xxxxxx X. Xxxxxxxx, President
----------------------
Subscribed and sworn to before me this ___ day of ___________, 1999.
_______________________________________
Notary Public, ___________ County, ____
My Commission Expires: ________________
[Signatures continued on following page]
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[Signatures continued from preceding page]
WITNESS
/s/ Xxxxxx X. Xxxxxxxx
---------------------- ----------------------------------
XXXXXX X. XXXXXXXX
----------------------
Subscribed and sworn to before me this ___ day of ___________, 1999.
_______________________________________
Notary Public, ___________ County, ____
My Commission Expires: ________________
WITNESS VENTURE FUNDING, LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------- ----------------------------------
Xxxxxx X. Xxxxxxxx, President
----------------------
Subscribed and sworn to before me this ___ day of ___________, 1999.
_______________________________________
Notary Public, ___________ County, ____
My Commission Expires: ________________
[Signatures continued on following page]
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[Signatures continued from preceding page]
WITNESS VENTURE FUNDING HOLDINGS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------- ----------------------------------
Xxxxxx X. Xxxxxxxx, Manager
----------------------
Subscribed and sworn to before me this ___ day of ___________, 1999.
_______________________________________
Notary Public, ___________ County, ____
My Commission Expires: ________________
WITNESS GROWTH REALTY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------- ----------------------------------
Xxxxxx X. Xxxxxxxx, President
----------------------
Subscribed and sworn to before me this ___ day of ___________, 1999.
_______________________________________
Notary Public, ___________ County, ____
My Commission Expires: ________________
[Signatures continued on following page]
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[Signatures continued from preceding page]
WITNESS GROWTH REALTY HOLDINGS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------- ----------------------------------
Xxxxxx X. Xxxxxxxx, Manager
----------------------
Subscribed and sworn to before me this ___ day of ___________, 1999.
_______________________________________
Notary Public, ___________ County, ____
My Commission Expires: ________________
WITNESS
/s/ [ILLEGIBLE] /s/ Xxxx X. XxXxxxxxxxx, Xx.
---------------------- ----------------------------------
XXXX X. XXXXXXXXXXX, XX.
----------------------
Subscribed and sworn to before me this 3rd day of August, 1999.
/s/ Xxxxxxxx Xxxxxxx
Notary Public, X. Xxxxxxx
County, Fairfield
My Commission Expires: 6/30/2002
[Signatures continued on following page]
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REAFFIRMATION OF AGREEMENTS
Each of the undersigned, a party to this Amendment and Waiver Agreement
(the "Agreement"), is also a party to various other guaranties, subordination
agreements, security agreements, mortgages, assignments, documents, instruments,
and agreements with or in favor of BBH, including but not limited to the
Subordination Agreement in favor of BBH subordinating Xxxxxxxx'x, Venture's and
Growth's obligations from Cellex to the obligations of Cellex to BBH (each, a
"Related Agreement" and collectively, the "Related Agreements"). In order to
induce BBH to enter into the Agreement set forth above, each of the undersigned
(1) acknowledges and agrees that all of its respective Related Agreements remain
in full force and effect and are hereby ratified, confirmed, approved and,
extend to and cover all of the obligations described in the Agreement; (2)
consents to all of the terms and conditions of the Agreement; (3) if it has
executed a guaranty in BBH's favor, it acknowledges and agrees that its guaranty
(and the collateral security therefor) extends to and covers all of Borrower's
obligations and Cellex's obligations to BBH, including those arising under, in
connection with, or described in the Agreement; (4) if it has executed a
subordination agreement in BBH's favor, it acknowledges and agrees that its
subordination agreement extends to and covers all of Borrower's obligations and
Cellex's obligations to BBH, including those arising under, in connection with,
or described in the Agreement; and (5) it acknowledges and agrees that the fact
that BBH has sought this reaffirmation does not create any obligation, right, or
expectation that BBH will seek its consent to or reaffirmation with respect to
any other or further amendments or modifications to the relationship between it
and Borrower or any other party.
WITNESS
/s/ Xxxxxx X. Xxxxxxxx
---------------------- ----------------------------------
XXXXXX X. XXXXXXXX
----------------------
Subscribed and sworn to before me this ___ day of ___________, 1999.
_______________________________________
Notary Public, ___________ County, ____
My Commission Expires: ________________
[Signatures continued on following page]
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[Signatures continued from preceding page]
WITNESS VENTURE FUNDING, LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------- ----------------------------------
Xxxxxx X. Xxxxxxxx, President
----------------------
Subscribed and sworn to before me this ___ day of ___________, 1999.
_______________________________________
Notary Public, ___________ County, ____
My Commission Expires: ________________
WITNESS VENTURE FUNDING HOLDINGS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------- ----------------------------------
Xxxxxx X. Xxxxxxxx, Manager
----------------------
Subscribed and sworn to before me this ___ day of ___________, 1999.
_______________________________________
Notary Public, ___________ County, ____
My Commission Expires: ________________
[Signatures continued on following page]
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[Signatures continued from preceding page]
WITNESS GROWTH REALTY, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------- ----------------------------------
Xxxxxx X. Xxxxxxxx, President
----------------------
Subscribed and sworn to before me this ___ day of ___________, 1999.
_______________________________________
Notary Public, ___________ County, ____
My Commission Expires: ________________
WITNESS GROWTH REALTY HOLDINGS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------- ----------------------------------
Xxxxxx X. Xxxxxxxx, Manager
----------------------
Subscribed and sworn to before me this ___ day of ___________, 1999.
_______________________________________
Notary Public, ___________ County, ____
My Commission Expires: ________________
WITNESS
/s/ [ILLEGIBLE] /s/ Xxxx X. XxXxxxxxxxx, Xx.
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XXXX X. XXXXXXXXXXX, XX.
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Subscribed and sworn to before me this 3rd day of August, 1999.
/s/ Xxxxxxxx Xxxxxxx
Notary Public, X. Xxxxxxx
County, Fairfield
My Commission Expires: 6/30/2002
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