EXHIBIT 10.146
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AMENDMENT TO JOINDER AND FORBEARANCE AGREEMENT
This Amendment to Joinder and Forbearance Agreement (the "Amendment")
is made and dated as of this 31st day of October, 2000, by and among DISPLAY
TECHNOLOGIES, INC., a Nevada corporation ("Display"), AD ART ELECTRONIC SIGN
CORPORATION, a Florida corporation ("Ad Art"), CERTIFIED MAINTENANCE SERVICE,
INC., a Florida corporation, XXX XXXX INDUSTRIES, INC., a Florida corporation
("Xxx Xxxx"), X.X. XXXXXXX MANUFACTURING, INC., a Florida corporation, LA-MAN
CORPORATION, a Nevada corporation ("La-Man"), X.X. XXXXXXX CORPORATION, a
Florida corporation, X.X. XXXXXXX INDUSTRIES, INC., a Florida corporation,
VISION TRUST MARKETING, INC., a Florida corporation, XXXXXXXX SIGN GROUP, INC.,
a Florida corporation ("Xxxxxxxx") (collectively, the foregoing entities shall
be referred to as the "Original Borrowers"), XXXXXXXX DIGITAL DESIGNS, LTD., an
Ontario (Canada) corporation ("Hamilton" and, together with the Original
Borrowers, the "Borrowers"), and SOUTHTRUST BANK, a bank chartered under the
laws of the State of Alabama and formerly doing business as SouthTrust Bank,
National Association ("SouthTrust" or the "Bank"), and amends that certain
Joinder and Forbearance Agreement dated as of September 26, 2000 by and among
the Borrowers and the Bank (the "Forbearance Agreement").
W I T N E S S E T H:
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A. Pursuant to that Loan and Security Agreement dated as of June 2,
1999, as amended by Amendment No. 1 to Loan and Security Agreement dated March
3, 2000 by and among the Bank and the Original Borrowers and by the Forbearance
Agreement (as amended, the "Loan Agreement"), the Bank extended the following
credit facilities to the Borrowers:
1. A revolving loan in the maximum principal amount of
$23,000,000.00 (the "Revolving Loan"), evidenced by that certain
Amended and Restated Revolving Loan Promissory Note dated March 3, 2000
in the maximum principal amount of $23,000,000.00 made by the Original
Borrowers to the order to SouthTrust (the "Revolving Note"). The
Revolving Loan originally was limited to the maximum principal amount
of $10,000,000.00 pursuant to that certain Loan and Security Agreement
by and between Display Technologies, as Borrower, and SouthTrust, dated
as of June 2, 1999 and that certain Revolving Loan Promissory Note
dated June 2, 1999 in principal amount of $10,000,000, but was
subsequently increased in March 2000 to a maximum principal amount of
$23,000,000.00 pursuant to the Amendment;
2. A term loan in the original principal amount of $1,000,000.00
(the "Term Loan"), evidenced by that certain Term Promissory Note dated
June 2, 1999 in the original principal amount of $1,000,000.00 made by
Borrowers to the order of SouthTrust (the "Term Note");
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3. Irrevocable Letter of Credit # SB-1326 in amount of up to
$2,500,000.00 dated August 1, 1997 issued by SouthTrust for the account
of the Original Borrowers (the "1997 Letter of Credit"), securing
$2,500,000.00 of Display's Variable/Fixed Rate Credit Enhanced Notes
(the "1997 Demand Notes") issued pursuant to that certain Trust
Indenture dated as of August 1, 1997; and
4. Irrevocable Letter of Credit # SB2128 in amount of up to
$2,546,028.00 dated June 17, 1999 issued by SouthTrust for the account
of the Original Borrowers (the "1999 Letter of Credit"), securing
$2,500,000 of Display's Variable/Fixed Rate Credit Enhanced Notes (the
"1999 Demand Notes") issued pursuant to that certain Trust Indenture
dated as of June 2, 1999 (collectively, the "Loans").
B. As more particularly set forth in the Forbearance Agreement,
certain Events of Default had occurred under the Loan Agreement prior to the
execution and delivery of the Forbearance Agreement.
C. As a result of the Events of Default under the Loan Agreement, the
Bank had no obligation under the Loan Agreement to make any further advances on
the Revolving Note and had the right to declare the unpaid balance of the Loans
to be forthwith due and payable and to exercise such other rights and remedies
available to the Bank under the Loan Documents and applicable law.
D. At the request of the Borrowers, the Bank agreed to and did enter
into the Forbearance Agreement, pursuant to which the Bank agreed until no later
than October 31, 2000, to, among other things, forbear from exercising its
rights and remedies under the Loan Documents, and provide the Borrowers with
additional revolving credit availability.
E. The Borrowers have asked the Bank to amend the Forbearance
Agreement to extend the Forbearance Period and to continue for a limited period
of time to provide the Borrowers with additional revolving credit availability.
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements and undertakings contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS.
a. Capitalized terms used but not defined herein shall have the
same meanings assigned to such terms in the Forbearance Agreement.
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b. The term "Loan Documents" as used herein and in the
Forbearance Agreement is hereby amended to specifically include, without
limitation, the Forbearance Agreement, the Forbearance Documents, this
Amendment, and any and all documents executed in connection with this Amendment.
c. The term "Collateral" as used herein and in the Forbearance
Agreement is hereby amended to specifically include, without limitation, the
Additional Collateral.
2. ACKNOWLEDGMENTS BY BORROWERS. Each of the Borrowers acknowledges
and agrees as follows:
A. ACKNOWLEDGMENT OF DEFAULT AND ENTITLEMENT TO PAYMENT. That
(i) on and as of the date hereof, each of the Term Loan and the Revolving Loan
is and remains in default; (ii) on and as of the date hereof, the Bank has the
right to make demand upon each of the Borrowers for the payment in full of the
Term Loan and the Revolving Loan, and that such demand for payment would be
proper in all respects; and (iii) the Borrowers each waive any and all further
notice, presentment, notice of dishonor or demand with respect to the
indebtedness evidenced by the Loan Documents;
B. ACKNOWLEDGMENT OF INDEBTEDNESS TO SOUTHTRUST. That, as of
October 30, 2000, (i) the Borrowers are indebted, jointly and severally, to the
Bank under the Revolving Loan in the principal amount of $14,099,974.33, for
accrued interest in the amount of $125,007.93, and for legal fees and other
costs and expenses due under the Loan Documents relating to the Revolving Loan;
(ii) the Borrowers are indebted, jointly and severally, to the Bank under the
Term Loan in the principal amount of $540,249.00, for accrued interest in the
amount of $5,004.81, and for legal fees and other costs and expenses due under
the Loan Documents relating to the Term Loan; (iii) on and as of the date
hereof, all of the foregoing amounts remain outstanding and unpaid; (iv) on and
as of the date hereof, none of the Borrowers has any claim or counterclaim of
any kind or nature against the Bank, relating to the Loans or otherwise; and (v)
on and as of the date hereof, all such amounts are due and payable in full,
without offset, deduction or counterclaim of any kind or character whatsoever,
but are subject to increase as a result of any and all interest, fees and other
charges which are or shall become due and payable to the Bank under the Loan
Documents;
C. ACKNOWLEDGMENT OF INDEBTEDNESS DUE UNDER THE DEMAND NOTES.
That, as of October 30, 2000, (i) the outstanding principal indebtedness due
under the 1997 Demand Notes is $2,270,000.00, along with interest accrued at the
contract rate from September 1, 2000 until the date hereof; (ii) the outstanding
principal indebtedness due under the 1999 Demand Notes is $2,275,000, along with
interest accrued at the contract rate from September 1, 2000 until the date
hereof; (iii) the Borrowers are current on all payments of interest due under
the 1997 Demand Notes and the 1999 Demand Notes; and (iv) to the extent any
draws are made against the 1997 Letter of Credit or the 1999 Letter of Credit
(together, the "Letters of Credit") and the Bank is required to fund such
Letters of Credit, the Borrowers are liable, jointly and severally, to reimburse
the Bank for all such amounts and all other fees and expenses due under the Loan
Documents;
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D. ACKNOWLEDGMENT THAT LIABILITIES CONTINUE IN FULL FORCE AND
EFFECT. That the Loan Documents and all other respective liabilities and
obligations of the Borrowers to the Bank under the Loan Documents shall, except
as expressly modified herein during the Forbearance Period (as hereinafter
defined), remain in full force and effect, and shall not be released, impaired,
diminished or in any other way modified or amended as a result of the execution
and delivery of this Agreement or by the agreements and undertakings of the
parties contained herein;
E. ACKNOWLEDGMENT OF LIENS ON COLLATERAL. That the Bank's
security interests in and liens on Collateral, and any and all rents and
proceeds therefrom, are and shall remain in full force and effect as security
for all the indebtedness evidenced by the Loan Documents, and the same is hereby
ratified and confirmed by the Borrowers in all respects;
F. ACKNOWLEDGMENT OF CROSS-DEFAULT OF LOANS. That (i) each of
the Loans is and shall be cross-defaulted with the other Loans such that the
occurrence of a default or Event of Default under any of the Loans is and shall
be a default and Event of Default under all of the Loans and (ii) each of the
Loans is and shall be cross-collateralized, such that any Collateral (other than
the Display Mortgaged Property which secures the repayment of only the Term
Loan) securing any of such Loans shall secure the repayment of all of such Loans
and such that the Bank shall have no obligation to release its liens on any of
its collateral securing such Loans unless and until each of these Loans has been
paid or otherwise satisfied in full;
G. ACKNOWLEDGMENT OF NO COMMITMENT TO LEND. That, except as
specifically provided in this Amendment, nothing contained in this Amendment
does or shall, at any time, require Bank to make any further loans or other
extensions of credit to any of the Borrowers;
H. ACKNOWLEDGMENT OF LIABILITY FOR LEGAL FEES AND COLLECTION
COSTS. That, without limitation of the foregoing, the Borrowers are liable,
jointly and severally, for all of the Bank's reasonable attorneys' fees and
expenses and collection costs incurred in connection with the Loans through the
date of this Amendment and are liable for all of the Bank's attorneys' fees and
expenses and collection costs incurred after the date hereof; and
I. ACKNOWLEDGMENT OF BANK'S RIGHT TO ACCRUE AND COLLECT INTEREST
AT THE DEFAULT RATE. That, as a result of the Pre-July Events of Default and the
Continuing Events of Default, the Bank has the right under the Loan Agreement,
the other Loan Documents and applicable law to accrue and collect interest on
the unpaid principal balance of the Loans at the Default Rate provided for under
the Loan Agreement.
3. REAFFIRMATION OF REPRESENTATIONS, WARRANTIES AND COVENANTS. Each
of the Borrowers hereby ratifies and reaffirms each of its representations and
warranties made to the Bank in the Loan Agreement and each of the other Loan
Documents, except for those representations and warranties described on
Schedules 1 and 2 to the Forbearance Agreement, and avers that such
representations and warranties remain true and correct as of the date of this
Amendment. Each of the Borrowers further ratifies and reaffirms each of its
covenants made in the Loan Documents and
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in the Forbearance Agreement, except for those covenants described on Schedules
1 and 2 to the Forbearance Agreement, and further ratifies and reaffirms its
obligation and agreement to perform such covenants for the benefit of the Bank.
4. FORBEARANCE BY BANK. Section 5.a of the Forbearance Agreement
entitled Forbearance Period is hereby deleted in its entirety and replaced with
the following:
"A. FORBEARANCE PERIOD. At the request of the Borrowers, and
upon the terms and conditions set forth herein, Bank agrees to forbear
from pursuing collection of the indebtedness due under the Loan
Documents as a result of the defaults and the Continuing Events of
Default existing under the Loan Documents, as of the date of this
Agreement until the earliest to occur of the following times: (i) 2:00
p.m., central time, on January 15, 2001, (ii) the time at which any of
the Borrowers fails to comply in any respect with any of the covenants
to Bank set forth in this Agreement or the Borrowers' breach of any of
the representations made herein; or (iii) the occurrence of any Event
of Default under any of the Loan Documents (other than the continuation
of the Continuing Events of Default described in the Forbearance
Agreement) (the period beginning on the date of this Agreement and
terminating on the earliest of such dates being hereinafter referred to
as the "Forbearance Period")."
5. ADVANCES ON THE REVOLVING LOAN DURING THE FORBEARANCE PERIOD.
Section 7.a of the Forbearance Agreement entitled "Maximum Amount of Advances
under Revolving Loan" is hereby deleted in its entirety and replaced with the
following:
"A. MAXIMUM AMOUNT OF ADVANCES UNDER REVOLVING LOAN. During
the Forbearance Period, and subject to the satisfaction of each of the
conditions set forth in Section 12 below, the Bank shall continue to
make advances to the Borrowers under the Revolving Loan in accordance
with the terms of the Loan Agreement and the other Loan Documents;
provided, however, that during the Forbearance Period, the term
"Aggregate Loan Values", as used in the Loan Agreement, shall mean the
lesser of (a) Twenty-Three Million and No/100 Dollars (U.S.
$23,000,000.00) or (b) the sum of (i) the Loan Value of Accounts, plus
(ii) the Loan Value of Inventory, plus (iii) (A) Three Million and
No/100 Dollars (U.S. $3,000,000.00) during the period commencing on
November 1, 2000 and ending on November 30, 2000, (B) Two Million Seven
Hundred Thousand and No/100 Dollars (U.S. $2,700,000.00) during the
period commencing on December 1, 2000 and ending on December 31, 2000,
or (C) Two Million Four Hundred Thousand and No/100 Dollars (U.S.
$2,400,000.00) during the period commencing on January 1, 2001 and
ending on January 15, 2001. Except as specifically provided in Section
7.b below, the Borrowers' ability to obtain advances and overadvances
on the Revolving Loan during the Agreement shall remain subject to all
other conditions and restrictions set forth in the Loan Agreement."
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6. PAYMENT OF LOAN RESTRUCTURING FEE. To induce the Bank to enter
into the Amendment, the Borrowers shall, upon the execution and delivery of the
Amendment, pay in cash to the Bank a loan restructuring fee in the amount of
Fifty Thousand and No/100 Dollars (U.S. $50,000.00).
7. PAYOFF OF LOANS. The Borrowers, and each of them, covenant and
agree that the Borrowers shall pay off the Loans and all other Obligations due
under the Loan Agreement by the end of the Forbearance Period, or by the end of
any extension thereof. If and only if the Borrowers fully pay to the Bank all of
the Obligations due under the Loan Agreement by the end of the Forbearance
Period, or by the end of any extension thereof, the Bank shall waive, and the
Borrowers shall not be liable for the payment of, the termination fees due to
the Bank pursuant to Section 2.7 of the Loan Agreement. If, however, the
Borrowers do not fully pay to the Bank all of the Obligations due under the Loan
Agreement (other than the termination fee due under Section 2.7 of the Loan
Agreement) by the end of the Forbearance Period, or by the end of any extension
thereof, then (a) the Borrowers shall remain fully liable to the Bank for the
payment and performance of any and all fees, charges and other Obligations due
under the Loan Documents, including, without limitation, the termination fees
due under Section 2.7 of the Loan Agreement, and (b) the Borrowers shall pay in
cash to Bank, on the last day of the Forbearance Period or any extension
thereof, a non- payment fee in the amount of Two Hundred Fifty Thousand and
No/100 Dollars (U.S. $250,000.00) (the "Non-Payment Fee").
8. UPDATED CASH FLOW FORECAST. During the Forbearance Period, each
Borrower will operate its business with respect to cash disbursements within the
revised cash flow forecasts prepared by Borrowers attached hereto as Exhibit A
(the "Revised Cash Flow Forecasts").
9. PAYMENT OF LEGAL FEES. Upon the Borrowers' execution and delivery
of this Amendment, and monthly thereafter, the Borrowers shall pay all of the
fees and expenses (including, without limitation, reasonable attorneys' fees)
incurred by the Bank and the Participant in connection with this Amendment, the
other Loan Documents, the Loans, and the transactions described herein and
therein. The Borrowers shall reimburse the Bank and the Participant,
respectively, within five (5) business days of the Bank or the Participant, as
the case may be, sending to the Borrowers its written request for payment of
such fees and expenses. If timely reimbursement is not made by the Borrowers,
then the Bank shall have the right to draw funds from the Revolving Loan in
amounts sufficient to pay such fees and expenses.1
10. PERFECTION OF LIENS ON XXXXXXXX COLLATERAL. The Borrowers
acknowledge and agree that, notwithstanding Section 8.b of the Forbearance
Agreement, or any other provision of the Loan Documents, the Bank may
immediately take any and all action necessary or appropriate to perfect its
liens, mortgages, security interests, pledges and assignments with respect to
the Collateral owned or held by Xxxxxxxx.
11. USE OF REVOLVING LOAN PROCEEDS. The Borrowers covenant and agree
that they shall use the proceeds of any and all advances and overadvances made
by Bank on the Revolving Loan
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during the Agreement solely and strictly as provided in the Revised Cash Flow
Forecasts attached hereto as Exhibit A.
12. NO WAIVER OF CONTINUING EVENTS OF DEFAULT. Notwithstanding
anything to the contrary herein, nothing in this Amendment or in any other
document or instrument executed in connection herewith, is intended, or shall be
deemed, to constitute a waiver of any of the Continuing Events of Default
described on Schedule 2 to the Forbearance Agreement or the occurrence of any
other Event of Default under the Loan Agreement.
13. CONSENT TO RELIEF FROM STAY. EACH OF THE BORROWERS HEREBY AGREES
THAT, IN CONSIDERATION OF THE RECITALS, WAIVERS, AND MUTUAL COVENANTS CONTAINED
HEREIN, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, INCLUDING THE FORBEARANCE
OF BANK FROM EXERCISING ITS RIGHTS AND REMEDIES OTHERWISE AVAILABLE TO IT UNDER
THE LOAN DOCUMENTS, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, IN THE EVENT ANY OF THE BORROWERS (BY ITS OWN ACTION, OR THE
ACTION OF ANY OTHER PERSONS) SHALL, ON OR BEFORE THE DATE BANK IS PAID IN FULL
ON THE INDEBTEDNESS AS EVIDENCED BY THE LOAN DOCUMENTS, (A) FILE WITH A
BANKRUPTCY COURT OF COMPETENT JURISDICTION OR BE THE SUBJECT OF ANY PETITION FOR
RELIEF UNDER TITLE 11 OF THE U.S. CODE (THE "BANKRUPTCY CODE"), AS AMENDED, OR
ANY OTHERWISE APPLICABLE LAW OF ANY JURISDICTION, (B) BE THE SUBJECT OF ANY
ORDER FOR RELIEF ISSUED UNDER THE BANKRUPTCY CODE, (C) FILE OR BE THE SUBJECT OF
ANY PETITION SEEKING ANY REORGANIZATION, ARRANGEMENT, COMPOSITION, READJUSTMENT,
LIQUIDATION, DISSOLUTION, OR SIMILAR RELIEF UNDER ANY PRESENT OR FUTURE FEDERAL
OR STATE ACT OR LAW RELATING TO BANKRUPTCY, INSOLVENCY, OR OTHER RELIEF FOR
DEBTORS, (D) HAVE SOUGHT OR CONSENTED TO OR ACQUIESCED IN THE APPOINTMENT OF ANY
TRUSTEE, RECEIVER, CONSERVATOR, LIQUIDATOR, (E) BE THE SUBJECT OF ANY ORDER,
JUDGMENT OR DECREE ENTERED BY ANY COURT OR COMPETENT JURISDICTION APPROVING A
PETITION FILED AGAINST SUCH PARTY FOR ANY REORGANIZATION, ARRANGEMENT,
COMPOSITION, READJUSTMENT, LIQUIDATION, DISSOLUTION, OR SIMILAR RELIEF UNDER ANY
PRESENT OR FUTURE FEDERAL OR STATE ACT OR LAW RELATING TO BANKRUPTCY,
INSOLVENCY, OR RELIEF FOR DEBTORS, THE BANK SHALL THEREUPON BE ENTITLED TO
RELIEF FROM ANY AUTOMATIC STAY IMPOSED BY SECTION 362 OF BANKRUPTCY CODE, OR
OTHERWISE, ON OR AGAINST THE EXERCISE OF THE RIGHTS AND REMEDIES OTHERWISE
AVAILABLE TO THE BANK AS PROVIDED IN THE LOAN DOCUMENTS, AS HEREBY AMENDED, AND
AS OTHERWISE PROVIDED BY LAW, INCLUDING, WITHOUT LIMITATION, ITS RIGHT TO
FORECLOSE UPON AND REPOSSESS THE COLLATERAL. EACH OF THE BORROWERS HEREBY WAIVES
THE BENEFITS OF SUCH AUTOMATIC STAY AND CONSENTS AND AGREES TO RAISE NO
OBJECTION TO ANY REQUEST MADE BY THE BANK FOR SUCH RELIEF.
14. RELEASE. EACH OF THE BORROWERS HEREBY RELEASES, ACQUITS, AND
FOREVER DISCHARGES THE BANK, AND EACH AND EVERY PAST AND PRESENT SUBSIDIARY,
AFFILIATE, STOCKHOLDER, OFFICER, DIRECTOR, AGENT, SERVANT, EMPLOYEE,
REPRESENTATIVE, AND ATTORNEY OF THE BANK, AND FURTHER RELEASES, ACQUITS AND
FOREVER DISCHARGES THE BANK'S PARTICIPANT IN THE REVOLVING LOAN, THE BANKER'S
BANK (THE "PARTICIPANT"), AND EACH AND EVERY PAST AND PRESENT SUBSIDIARY,
AFFILIATE, STOCKHOLDER, OFFICER, DIRECTOR, AGENT, SERVANT, EMPLOYEE,
REPRESENTATIVE, AND ATTORNEY OF THE PARTICIPANT (COLLECTIVELY, THE "RELEASED
PARTIES"), OF AND FROM ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION, SUITS,
DAMAGES, DEBTS, LIENS, OBLIGATIONS, LIABILITIES, JUDGMENTS, EXECUTIONS
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DEMANDS, LOSSES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES) OF ANY KIND,
CHARACTER, OR NATURE WHATSOEVER, KNOWN OR UNKNOWN, DIRECT OR INDIRECT, FIXED OR
CONTINGENT, AT LAW OR IN EQUITY, WHETHER HERETOFORE OR HEREAFTER ARISING, FOR OR
BECAUSE OF ANY MATTER OR THINGS DONE, OMITTED OR SUFFERED TO BE DONE BY ANY OF
THE RELEASED PARTIES, ON OR PRIOR TO THE DATE OF THIS AMENDMENT, OR IN ANY WAY
DIRECTLY OR INDIRECTLY ARISING OUT OF OR ANY WAY RELATED TO THIS AMENDMENT, ANY
OF THE LOAN DOCUMENTS, ANY INSTRUMENT EXECUTED ON OR PRIOR TO THE DATE OF THIS
AMENDMENT, OR ANY OF THE LOANS, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS,
LIABILITIES OR OBLIGATIONS ARISING WITH RESPECT TO SETTLEMENT OR RESTRUCTURING
NEGOTIATIONS (ALL OF THE FOREGOING SHALL BE REFERRED TO HEREINAFTER AS THE
"RELEASED MATTERS"). EACH OF THE BORROWERS REPRESENTS AND WARRANTS TO THE BANK
THAT IT HAS NOT TRANSFERRED, ASSIGNED OR OTHERWISE CONVEYED, OR PURPORTED TO
TRANSFER, ASSIGN OR OTHERWISE CONVEY, ANY RIGHT, TITLE OR INTEREST OF THE
BORROWERS IN ANY RELEASED MATTER TO ANY OTHER PERSON AND THAT THE FOREGOING
CONSTITUTES A FULL AND COMPLETE RELEASE OF ALL RELEASED MATTERS. THE PROVISIONS
OF THIS SECTION SHALL BE BINDING UPON EACH OF THE BORROWERS, AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, AND SHALL INURE TO THE BENEFIT OF BANK, THE
PARTICIPANT, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
15. MISCELLANEOUS.
A. SCOPE OF AGREEMENT. Except as expressly modified by this
Amendment, the provisions of the Forbearance Agreement and the Loan Documents
shall remain in full force and effect. Nothing contained in Amendment shall be
construed to impair the security of the Bank under the Forbearance Agreement,
the Loan Agreement and other Loan Documents, nor affect or impair any rights or
powers that the Bank may have under the Forbearance Agreement, the Loan
Agreement and other Loan Documents in case of the Borrowers' nonperformance of
the terms, provisions and covenants contained in this Amendment or in the case
of the occurrence of an Event of Default other than the Continuing Events of
Default specified in the recitals to this Amendment. All agreements of and
undertakings by the Borrowers pursuant to this Amendment are intended to be
cumulative with any other agreements or undertakings by the Borrowers under the
Forbearance Agreement, the Loan Agreement and other Loan Documents and are not
intended to limit the generality of any such agreement or undertaking. Each of
the Borrowers hereby ratifies and confirms the validity and effectiveness of the
Forbearance Agreement, the Loan Agreement and other Loan Documents as modified
by this Amendment. This Amendment constitutes the entire agreement of the
parties and may only be amended pursuant to a writing signed by all of the
parties hereto.
B. NO WAIVER. This Amendment is not intended to operate as, and
shall not be construed as, a waiver of any Continuing Event of Default or other
Event of Default, whether known to Bank or unknown, as to which all rights of
Bank shall remain reserved.
C. GOVERNING LAW. This Amendment shall be governed by, and
shall be construed in accordance with, the laws of the State of Florida, without
regard to principles governing conflicts of law, and all applicable laws of the
United States of America.
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D. WAIVER OF RIGHT TO JURY TRIAL. THE PARTIES DESIRE TO AVOID
THE ADDITIONAL TIME AND EXPENSE RELATED TO A JURY TRIAL OF ANY DISPUTES BASED
UPON, ARISING UNDER OR ANY WAY DIRECTLY OR INDIRECTLY RELATING TO THIS
AMENDMENT, ANY OF THE LOAN DOCUMENTS, OR ANY OF THE DISCUSSIONS OR NEGOTIATIONS
LEADING UP TO THIS AMENDMENT AND THE LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AMENDMENT OR THE LOAN DOCUMENTS. ACCORDINGLY, THE BANK AND
THE BORROWERS, AND EACH OF THEM, HEREBY IRREVOCABLY WAIVE THEIR RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR IN ANY WAY DIRECTLY OR
INDIRECTLY RELATED TO (I) ANY OF THE LOAN DOCUMENTS, (II) THIS AMENDMENT, (III)
ANY OF THE LOANS, (IV) ANY OF THE COLLATERAL, (V) ANY OF THE NEGOTIATIONS AND
DISCUSSIONS REGARDING THIS AMENDMENT, THE LOAN DOCUMENTS, THE LOANS, OR THE
COLLATERAL, (VI) ANY OF THE TRANSACTIONS CONTEMPLATED IN THIS AMENDMENT OR IN
ANY OF THE LOAN DOCUMENTS, OR (VII) ANY ACTION TAKEN BY THE BANK TO COLLECT UPON
THE LOANS OR TO EXERCISE ITS RIGHTS IN AND TO ANY OF THE COLLATERAL. IN
FURTHERANCE OF THE FOREGOING, THE BANK AND THE BORROWERS, AND EACH OF THEM,
IRREVOCABLY CONSENT TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS
DEEMED APPROPRIATE BY THE JUDGE OF A COURT OF COMPETENT JURISDICTION. THE BANK
AND THE BORROWERS, AND EACH OF THEM, ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS
KNOWINGLY, FREELY AND VOLUNTARILY GIVEN, IS MADE AFTER EACH OF THEM HAS BEEN
GIVEN ADEQUATE OPPORTUNITY TO CONSULT WITH THEIR OWN COUNSEL ABOUT THE MEANING
AND CONSEQUENCES OF THIS WAIVER, AND IS IN THE BEST INTERESTS OF EACH PARTY.
E. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall be an original and all of which, taken
together, shall constitute but one and the same agreement among the parties.
F. BINDING NATURE. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
G. CAPTIONS. The captions to the sections and paragraphs of
this Amendment are for the convenience of the parties only, and are not a part
of this Amendment.
H. TIME OF THE ESSENCE. Time is of the essence under this
Amendment.
I. NO RELEASE OF BORROWERS. Nothing herein is, or shall be
construed as, a release of any of the Borrowers' Obligations and liabilities to
the Bank under the Loan Documents or of any of the Collateral securing the
Borrowers' obligations to the Bank.
I. FURTHER DOCUMENTS. Each of the Borrowers agrees to execute
and deliver, or cause to be executed and delivered, to Bank from time to time
such additional confirmatory or supplementary agreements, notices or other
documents, instruments or agreements as Bank may, in its sole discretion,
request which are in Bank's judgment necessary or desirable to obtain for Bank
the benefit of this Amendment.
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J. INTERPRETATION. This Amendment shall be construed to
liberally effectuate the rights and remedies of the parties hereto as expressed
herein, and neither such principle of interpretation nor the express language of
this Amendment shall be impaired or adversely affected by any instruments and
documents executed in connection herewith. The deletion of any provision from a
prior draft of this Amendment shall not and shall not be deemed to constitute
(and shall not be used as) evidence of any fact or interpretation, since the
parties may disagree as to the meaning and effect of such a deletion, as no
prior draft of this Amendment shall be admissible as evidence of the meaning of
this Amendment. Should any provision of this Amendment or any of the other Loan
Documents require judicial interpretation, it is agreed that a court
interpreting or construing same shall not apply a presumption that the terms
hereof shall be more strictly construed against one party by reason of the rule
of construction that a document is to be construed more strictly against the
party who itself or through its agent prepared the same, it being agreed that
all parties hereto have participated in the preparation hereof and of the other
Loan Documents.
K. NO COURSE OF CONDUCT. At no time shall the prior or
subsequent course of conduct by any of the Borrowers or the Bank directly or
indirectly limit, impair or otherwise adversely affect any of the parties'
rights or remedies in connection with this or any of the instruments and
documents executed in connection herewith, since the parties hereto agree that
this Amendment shall only be amended by written instruments executed by the
parties, as provided herein.
L. NO THIRD PARTIES BENEFITTED. This Amendment is made and
entered into for the protection and benefit of the parties hereto, the
Participant, and their respective successors and assigns, and no other person or
entity shall be a direct or indirect beneficiary of or have any direct or
indirect cause of action or claim in connection with this Amendment or any of
the other Loan Documents.
M. NO FURTHER COMMITMENT. Without limiting the foregoing, each
of the Borrowers expressly acknowledges that (i) the Bank has not made and is
not making any commitment for, and that there is no understanding, explicit or
implicit, relating to, or affecting, financing for any time beyond the end of
the Forbearance Period, and (ii) the Bank has made no commitment with respect
to, and there is no understanding, explicit or implicit, relating to or
affecting the terms of any further restructure or workout of the Loans other
than as expressly provided in the Forbearance Agreement, as amended by this
Amendment.
N. LIMITED RELATIONSHIPS. Neither Bank nor any representative
of Bank at any time has agreed or consented to being an agent, principal,
business associate or participant, joint venturer, partner or alter ego of any
of the Borrowers or any of their affiliates, and no such relationship is
contemplated. No person except employees of the Bank and the Bank's counsel has
at any time been directly or indirectly authorized by the Bank to directly or
indirectly represent, speak or act for or on behalf of the Bank with respect to
any matter whatsoever related to, arising out of or connected with this
Amendment or any other matter or contract.
10
O. USURY. In no event shall this or any other provision herein
or in the Loan Documents, permit the collection of any interest which would be
usurious under the laws of the State of Florida. If any such interest in excess
of the maximum rate allowable under applicable law has been collected, each of
the Borrowers agrees that the amount of interest collected above the maximum
rate permitted by applicable law, together with interest thereon at the rate
required by applicable law, shall be refunded to the Borrowers, and each of the
Borrowers agrees to accept such refund, or, at the Borrowers' option, such
refund shall be applied as a principal payment hereunder.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals effective as of the date first above written.
DISPLAY TECHNOLOGIES, INC.
-----------------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: President / Chief Executive Officer
11
AD ART ELECTRONIC SIGN CORPORATION
---------------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Chairman
CERTIFIED MAINTENANCE SERVICE, INC.
---------------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Chairman
XXX XXXX INDUSTRIES, INC.
---------------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Chairman
X.X. XXXXXXX MANUFACTURING, INC.
---------------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Chairman
LA-MAN CORPORATION
---------------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Chairman
X.X. XXXXXXX CORPORATION
---------------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Vice-President
12
X.X. XXXXXXX INDUSTRIES, INC.
---------------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Vice-President
VISION TRUST MARKETING, INC.
---------------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: President
XXXXXXXX SIGN GROUP, INC.
---------------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Chairman
XXXXXXXX DIGITAL DESIGNS, LTD.
---------------------------------------
By:
---------------------------------
Its:
---------------------------------
SOUTHTRUST BANK
---------------------------------------
By:
---------------------------------
Its:
---------------------------------
13
STATE OF _____________ )
:
______________ COUNTY )
I, the undersigned, a notary public in and for said county in said
state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as President and
Chief Executive Officer of Display Technologies, Inc., a Florida corporation, is
signed to the foregoing instrument, and who is known to me, acknowledged before
me on this day that, being informed of the contents of said instrument, he, as
such officer and with full authority, executed the same voluntarily for and as
the act of said corporation.
Given under my hand and official seal this___day of ________, 2000.
---------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
-----------------
STATE OF _____________ )
:
______________ COUNTY )
I, the undersigned, a notary public in and for said county in said
state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as Chairman of Ad Art
Electronic Sign Corporation, a Florida corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of said instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this __ day of _________, 2000.
---------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
-----------------
14
STATE OF _____________ )
:
______________ COUNTY )
I, the undersigned, a notary public in and for said county in said
state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as Chairman of
Certified Maintenance Service, Inc., a Florida corporation, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on this day
that, being informed of the contents of said instrument, he, as such officer and
with full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this __ day of _________, 2000.
---------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
-----------------
STATE OF _____________ )
:
______________ COUNTY )
I, the undersigned, a notary public in and for said county in said
state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as Chairman of Xxx
Xxxx Industries, Inc., a Florida corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of said instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this __ day of __________, 2000.
---------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
-----------------
15
STATE OF _____________ )
:
______________ COUNTY )
I, the undersigned, a notary public in and for said county in said
state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as Chairman of X.X.
Xxxxxxx Manufacturing, Inc., a Florida corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of said instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this __ day of ___________, 2000.
---------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
-----------------
STATE OF _____________ )
:
______________ COUNTY )
I, the undersigned, a notary public in and for said county in said
state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as Chairman of La-Man
Corporation, a Florida corporation, is signed to the foregoing instrument, and
who is known to me, acknowledged before me on this day that, being informed of
the contents of said instrument, he, as such officer and with full authority,
executed the same voluntarily for and as the act of said corporation.
Given under my hand and official seal this __ day of ___________, 2000.
---------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
-----------------
16
STATE OF _____________ )
:
______________ COUNTY )
I, the undersigned, a notary public in and for said county in said
state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as Vice-President of
X.X. Xxxxxxx Corporation, a Florida corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of said instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this __ day of __________, 2000.
---------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
-----------------
STATE OF _____________ )
:
______________ COUNTY )
I, the undersigned, a notary public in and for said county in said
state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as Vice-President of
X.X. Xxxxxxx Industries, Inc., a Florida corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of said instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this __ day of ___________, 2000.
---------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
-----------------
17
STATE OF _____________ )
:
______________ COUNTY )
I, the undersigned, a notary public in and for said county in said
state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as President of
Vision Trust Marketing, Inc., a Florida corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of said instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this __ day of __________, 2000.
---------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
-----------------
STATE OF _____________ )
:
______________ COUNTY )
I, the undersigned, a notary public in and for said county in said
state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as Chairman of
Xxxxxxxx Sign Group, Inc., a Florida corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of said instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this __ day of ___________, 2000.
---------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
-----------------
18
STATE OF _____________ )
:
______________ COUNTY )
I, the undersigned, a notary public in and for said county in said
state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as ______________ of
Xxxxxxxx Digital Designs, Ltd., a Florida corporation, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on this day
that, being informed of the contents of said instrument, he, as such officer and
with full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this __ day of ___________, 2000.
---------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
-----------------
STATE OF _____________ )
:
______________ COUNTY )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that , whose name as of SOUTHTRUST BANK, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on this day
that, being informed of the contents of the instrument, he as such officer, and
with full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and seal of office this __ day of __________, 2000.
---------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
-----------------
19
EXHIBIT A
---------
REVISED CASH FLOW FORECASTS
20
