Exhibit 4.9.3
FIFTH EXTENSION AGREEMENT
This Fifth Extension Agreement ("Fifth Extension") is made and
entered into this 10th day of August, 2001, by and among Ballantyne of Omaha,
Inc. ("the Borrower"), Design and Manufacturing, Inc., Xenotech Strong, Inc.,
Strong Westrex, Inc., and Xenotech Rental Corp. (collectively "the
Guarantors") and Xxxxx Fargo Bank Nebraska, National Association, ("the
Bank").
RECITALS
A. The Borrower is indebted to the Bank as evidenced by a Revolving
Note dated January 5, 2001, in the maximum principal amount of $9,500,000.00, as
amended and modified from time to time ("Revolving Note"). The principal balance
outstanding on August 9, 2001, under the Revolving Note was $1,525,126.48;
accrued and unpaid interest to that date was $3,842.06.
B. Payment of the Revolving Note is secured by, without limitation, all
of the Borrower's inventory, equipment, accounts and other rights to payment,
and general intangibles as more specifically described in the Security Agreement
dated August 30, 1995 ("Security Agreement").
C. Payment of the Revolving Note is also secured by, without
limitation, a Deed of Trust dated August 30, 1995, and filed for record with the
Xxxxxxx County Register of Deeds on August 31, 1995, as Document No. 13536,
encumbering certain real property as more specifically described therein, as the
same may have been amended or modified ("Deed of Trust").
D. Payment of the Revolving Note is also secured by, without
limitation, an Assignment of Leases and Rent dated August 30, 1995, and filed
for record with the Xxxxxxx County Register of Deeds on August 31, 1995, as
Document No.9508, encumbering certain real property as more specifically
described therein, as the same may have been amended or modified ("Assignment").
E. Payment of the Revolving Note is guaranteed by Design and
Manufacturing, Inc., Xenotech Strong, Inc., Strong Westrex, Inc., and Xenotech
Rental Corp. by their corporate guaranties dated December 1, 1998 (collectively
"the Guaranties"). The Guaranties are secured by each respective Guarantor's
accounts, inventory, equipment, and general intangibles as more specifically
described in their security agreements dated August 30, 1995 and December 1,
1998.
F. The Borrower and Guarantors executed a Loan Repayment Agreement
dated December 29, 2000; an Extension Agreement dated January 31, 2001; a Second
Extension Agreement dated March 15, 2001; a Third Extension Agreement dated
April 27, 2001, and a Fourth Extension Agreement dated June 28, 2001, which set
forth additional terms and conditions with regard to the above described
indebtedness (collectively "the Agreement"). Terms not otherwise defined in this
Fifth Extension shall have the same meanings ascribed to them in the Agreement.
G. The Revolving Note again matures August 14, 2001, and the Borrower
and Guarantors have requested that the Bank extend the Revolving Note in order
for the Borrower to conclude its efforts to refinance the loan, which the Bank
has agreed to do pursuant to the terms and conditions of this Fifth Extension.
NOW, THEREFORE, in consideration of the foregoing and for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. ACKNOWLEDGMENT. The Borrower and the Guarantors acknowledge and
agree that the recitals herein are true and correct and that the indebtedness
under the Revolving Note is due and owing to the Bank without offset, defense or
counterclaims and further acknowledge that the Security Agreement, Deed of
Trust, Assignment and other documents evidencing the security for the Revolving
Note are valid, binding and fully enforceable according to their terms; and
further acknowledge that the Guaranties and security agreements therefor are
valid and binding and fully enforceable according to their terms.
2. EXTENSION OF REVOLVING NOTE. Subject to the other terms and
conditions of this Fifth Extension, and subject to all terms and conditions of
the Agreement, as amended herein, the indebtedness evidenced by the Revolving
Note shall be extended to August 31, 2001. The Borrower shall execute herewith
an appropriate Note Modification document reflecting the extended maturity date.
3. COLLATERAL SECURITY AND GUARANTIES. Payment of the Revolving Note
and performance of the Borrower's obligations as set forth in this Fifth
Extension and in the Agreement shall continue to be secured by the Security
Agreement, Deed of Trust and Assignment. The Guarantors also reaffirm their
guaranties of the Revolving Note and acknowledge and agree that their guaranties
apply to the Revolving Note as extended and all other obligations of the
Borrower to the Bank.
4. CONDITIONS PRECEDENT. The Bank's performance hereunder is subject
to delivery to the Bank of each of the following as conditions precedent:
4.1 Duly executed Note Modification;
4.2 A certified copy of the resolutions of the Borrower's
Board of Directors authorizing the execution, delivery and performance
of this Fifth Extension and any other document to be delivered pursuant
hereto;
4.3 A certificate of the Borrower's corporate secretary as to
the incumbency and signature of the authorizing officers signing this
Fifth Extension and any other document to be delivered pursuant hereto;
and
4.4 Copies of any commitment letters, term sheets,
applications, correspondence or other documents relating to the
Borrower's efforts to obtain refinancing for the Revolving Note.
5. REPRESENTATIONS AND WARRANTIES. To induce the Bank to enter
into this Fifth Extension, the Borrower represents and warrants to the Bank as
follows:
5.1 The Borrower is a corporation duly organized, existing and
in good standing under the laws of the State of Delaware and is duly
qualified to do business and is in good standing in each jurisdiction
where registration is necessary.
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5.2 This Fifth Extension and the documents to be delivered
pursuant hereto are valid and binding in accordance with their terms
and the execution, delivery and performance of this Fifth Extension and
the issuance of the security agreements and other instruments granting
to Bank its security interest are within the corporate powers of the
Borrower, have been duly authorized, and are not in contravention of
law or the terms of its articles of incorporation or bylaws, or of any
undertaking to which the Borrower is a party or by which it is bound.
5.3 The Borrower has made no loans or transferred no interest
in any property or asset to any person, except in the ordinary course
of business.
5.4 No consent, approval, or authorization of or declaration
or filing with any governmental authority on the part of the Borrower
is required in connection with the execution and delivery of this Fifth
Extension or the consummation of any transaction contemplated hereby.
5.5 The Borrower has not incurred or assumed indebtedness
contingently or otherwise, except: (i) unsecured debt in the ordinary
course of business; (ii) indebtedness arising under the Agreement; and
(iii) indebtedness disclosed to the Bank in writing as existing at the
time of execution of this Fifth Extension.
5.6 The assets of the Borrower are not subject to any lien or
encumbrance except as permitted hereunder and as disclosed to the Bank
in writing as existing at the time of execution of this Fifth
Extension.
5.7 The Borrower has filed all Federal, state and local tax
returns and other reports that are required by law to be filed prior to
the date hereof and has paid or has caused to be paid all taxes,
assessments and other governmental charges that are due and payable
prior to the date hereof and has made adequate provision for the
payment of such taxes, assessments or other charges accruing but not
yet payable.
5.8 All employee (union and non-union) compensation, health,
welfare, deferred compensation or other benefits which have accrued or
became payable prior to the date of this Fifth Extension have been paid
in full and will, during the term of this Fifth Extension, be fully
paid as and when such obligations become due.
6. RELEASE. In consideration of the accommodations by the Bank
hereunder, the Borrower and the Guarantors do hereby, on behalf of themselves,
their agents, insurers, heirs, successors and assigns, release, acquit and
forever discharge the Bank and Xxxxx Fargo & Company, (and any and all of their
parent corporations, subsidiary corporations, affiliated corporations, insurers,
indemnitors, successors and assigns, together with all of their present and
former directors, officers, agents and employees) from any and all claims,
demands or causes of action of any kind, nature or description whether arising
in law or equity or upon contract or tort or under any state or federal law or
otherwise, which the Borrower or the Guarantors have had, now have or have made
claim to have against any such party for or by reason of any act, omission,
matter, cause or thing whatsoever from the beginning of time to and including
the date
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of this Fifth Extension, whether such claims, demands and causes of action are
matured or unmatured or known or unknown.
7. EVENTS OF DEFAULT. The following shall constitute events of default
under this Extension("Event of Default"):
7.1 Failure to pay interest, principal or other amounts
payable on the Revolving Note no later than five days after such
payments become due; or
7.2 Any event of default as defined in the Revolving Note,
Agreement, Security Agreement, Guaranties, Deeds of Trust, Assignment,
or any other documents or agreements between the Bank and the Borrower
or Bank and the Guarantors; or
7.3 Breach or violation of any covenant or agreement of the
Borrower or the Guarantors set forth herein; or
7.4 Default by the Borrower relating to any other indebtedness
for borrowed money or the effect of which default is to permit the
holder of such indebtedness to declare the same due prior to the date
fixed for its payment under the terms thereof; or
7.5 Any representation or warranty made by the Borrower or the
Guarantors in this Fifth Extension or by the Borrower or the Guarantors
in any statement, certificate or instrument contemplated by or made
pursuant to or in connection with this Fifth Extension shall have been
untrue or incorrect when made; or
7.6 The Borrower or the Guarantors become insolvent; make an
assignment for the benefit of creditors; a custodian, trustee or
receiver is appointed for the Borrower or the Guarantors, or for any of
their properties ; or bankruptcy, reorganization or liquidation
proceedings are instituted by or against the Borrower or the Guarantors
and, if instituted against any of them, are consented to by them or
remain undismissed for thirty (30) days;
7.7 The occurrence of any litigation or governmental
proceeding which is pending or threatened against the Borrower or the
Guarantors which could have a material adverse effect on the Borrower's
or the Guarantors' financial condition or business, and which is not
remedied within a reasonable period of time, not to exceed 10 days
after notice thereof to the Borrower or the Guarantors; or
7.8 An execution, levy, garnishment summons or attachment
order against the Borrower or the Guarantors is served upon Bank.
8. REMEDIES. Upon the occurrence of any Event of Default or at any time
thereafter, the Bank or the holder of the Revolving Note may declare the Note to
be due and payable, and the Note shall immediately become due and payable, and
Bank shall be entitled to the immediate exercise of all its rights and remedies
available to it under the Revolving Note, Security Agreement, Guaranties, Deeds
of Trust, Assignment, and all other documents and agreements between the
parties.
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9. MISCELLANEOUS.
9.1 The provisions of this Fifth Extension shall be in
addition to those of any guaranties, deeds of trust, assignments,
pledges, security agreements, note or other evidence of liability held
by the Bank and executed by the Borrower or the Guarantors, all of
which shall be construed as complementary to each other. Nothing herein
contained shall prevent the Bank from enforcing any or all other
guaranties, deeds of trust, assignments, pledges, security agreements,
note or other evidence of liability in accordance with their respective
terms.
9.2 The Bank shall have the right at all times to enforce the
provisions of this Fifth Extension and the collateral documents in
strict accordance with the terms hereof and thereof, notwithstanding
any conduct or custom on the part of the Bank in refraining from so
doing at any time or times. The failure of the Bank at any time or
times to enforce its rights under such provisions, strictly in
accordance with the same, shall not be construed as having created a
custom, conduct or course of dealing in any way or manner contrary to
specific provisions of this Fifth Extension or as having in any way or
manner modified or waived the same. All rights and remedies of the Bank
are cumulative and concurrent and the exercise of one right or remedy
shall not be deemed a waiver or release of any other right or remedy.
9.3 This Fifth Extension shall inure to the benefit of, and
shall be binding upon, the respective successors and permitted assigns
of the parties hereto. The Borrower and the Guarantors have no right to
assign any of its rights or obligations hereunder without the prior
written consent of the Bank. This Fifth Extension, and the documents
referred to herein or executed and delivered pursuant hereto,
constitute the entire agreement between the parties, and may be amended
only by a writing signed on behalf of each party. There are no
promises, inducements or terms and conditions other than as
specifically set forth herein.
9.4 If any provision of this Fifth Extension shall be held
invalid under any applicable laws, such invalidity shall not affect any
other provision of this Fifth Extension that can be given effect
without the invalid provision, and, to this end, the provisions hereof
are severable.
9.5 No failure of the Bank, or of the holder of the Revolving
Note, in exercising any right, power or privilege hereunder shall
affect such right, power or privilege, nor shall any single or partial
exercise thereof preclude any further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies of the
Bank or the holder of the Revolving Note or other evidence of liability
under this Fifth Extension are cumulative and not exclusive of any
rights and remedies which it may otherwise have.
9.6 This Fifth Extension may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute but one and the same instrument.
9.7 If any provision contained in this Fifth Extension is
inconsistent with any provision of any of the documents described
herein or any other document in favor of the Bank, the provision
contained in this Fifth Extension
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shall supersede such inconsistent provision in the document described
herein or any document in favor of the Bank.
9.8 The substantive laws of the State of Nebraska shall govern
the construction of this Fifth Extension and the rights and remedies of
the parties hereto.
10. FEES AND EXPENSES. Upon execution of this Fifth Extension, the
Borrower shall pay to the Bank an extension fee of $0.00, which shall be deemed
fully earned and not applied to the outstanding indebtedness under the Revolving
Note. In addition the Borrower agrees, within 10 days of invoice, to pay to the
Bank all expenses including, but not limited to, (i) the reasonable fees and
expenses of legal counsel for the Bank, incurred in connection with the
preparation, administration, amendment, modification or enforcement of this
Fifth Extension and the collateral documents and the collection or attempted
collection of the indebtedness; and (ii) expenses of future collateral audits
conducted by the Bank at the Bank's customary rates.
11. ADVICE OF COUNSEL. The Borrower and the Guarantors acknowledge that
they have reviewed this Fifth Extension in its entirety, having consulted such
legal, tax or other advisors as they deem appropriate and understand and agree
to each of the provisions of this Fifth Extension and further acknowledge that
they have entered into this Fifth Extension voluntarily.
IN WITNESS WHEREOF, the parties hereto have duly executed this Fifth
Extension as of the day and year first above written.
BALLANTYNE OF OMAHA, INC. XXXXX FARGO BANK NEBRASKA,
NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxxx
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Its: President Its: Vice-President
And
By: /s/ Xxxx Xxxxxx
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Its: CFO
DESIGN AND MANUFACTURING, INC. STRONG WESTREX, INC
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxxxx
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Its: President Its: President
XENOTECH STRONG, INC. XENOTECH RENTAL CORP.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxxxx
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Its: President Its: President
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