Exhibit 10.7
LOAN FORBEARANCE
AND REAFFIRMATION AGREEMENT
---------------------------
THIS LOAN FORBEARANCE AND REAFFIRMATION AGREEMENT (the "Agreement") is made
and entered into as of this _____ day of July, 2001 by and among MIDWEST
GUARANTY BANK, a Michigan banking corporation with an office at 000 X. Xxx
Xxxxxx, Xxxxx 000, Xxxx, Xxxxxxxx 00000 (the "Bank"), and XXXXXXXXXXX.XXX, INC.,
a Michigan corporation with its principal place of business at 000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "Company").
RECITALS
--------
A. The Bank has financed a series of equipment loans (collectively, the
"Loans") which are evidenced by, inter alia, the following nine (9) notes
(collectively, the "Notes"), denominated by their Bank-assigned loan numbers:
1. Loan No. 000-000-000: promissory note dated as of July 22, 1998,
made by the Company payable to the Bank in the face amount of
$66,651.82;
2. Loan No. 000-000-000: promissory note dated as of August 18,
1998, made by the Company payable to the Bank in the face amount
of $131,830.47;
3. Loan No. 000-000-000: promissory note dated as of October 5,
1998, made by the Company payable to the Bank in the face amount
of $46,958.80;
4. Loan No. 000-000-000: promissory note dated as of November 18,
1998, made by the Company payable to the Bank in the face amount
of $77,240.80;
5. Loan No. 000-000-000: promissory note dated as of January 7,
1999, made by the Company payable to the Bank in the face amount
of $76,825.16;
6. Loan No. 000-000-000: promissory note dated as of March 8, 1999,
made by the Company payable to the Bank in the face amount of
$123,360.90;
7. Loan No. 000-000-000: promissory note dated as of June 15, 1999,
made by the Company payable to the Bank in the face amount of
$125,757.34;
8. Loan No. 000-000-000: promissory note dated as of July 6, 1999,
made by the Company payable to the Bank in the face amount of
$206,573.68; and
9. Loan No. 000-000-000: promissory note dated as of August 18,
1999, made by the Company payable to the Bank in the face amount
of $210,591.56.
B. Each of the Notes is accompanied by a business loan agreement
(collectively, the "Loan Agreements") between the Company and the Bank, each
dated as of the same date as its corresponding Note.
C. As of July 6, 2001, the Loans and associated obligations bore the
following outstanding principal balances and corresponding late fees and annual
fixed interest accrual rates:
Note No. Principal Balance Late Fees Interest Rate
----------- ----------------- --------- -------------
000-000-000 $ 20,699.78 9.50%
000-000-000 39,072.19 9.50%
000-000-000 17,780.93 176.58 9.25%
000-000-000 12,085.17 8.75%
000-000-000 33,910.94 286.05 8.75%
000-000-000 49,724.77 612.72 8.75%
000-000-000 52,809.38 8.75%
000-000-000 95,760.13 1,030.96 9.00%
000-000-000 100,441.88 9.00%
VISA #412167720030205 1,120.95 15.00%
Other than interest that has accrued and continues to accrue under the Notes
during the current month and attorney's fees and expenses not exceeding
$10,000.00, there are no other costs or other charges due under the Loans as of
the date of this Agreement.
D. Repayment of the sums due under the Notes, and performance of any and
all other duties and obligations of the Company under the Loan Agreements, are
secured by, inter alia, liens and security interests encumbering the computer
equipment (the "Bank Collateral") identified in the descriptive schedules
attached to each of the commercial security agreements accompanying the Notes.
Pursuant to the terms of the foregoing commercial security agreements, the Bank
Collateral collectively secures all of the Company's obligations to the Bank.
(All of the Notes and the corresponding building loan agreements, commercial
security agreements, financing statements and other documents evidencing the
Loans are referred to herein collectively as the "Loan Documents".)
E. Prior to the date of this Agreement, the Company defaulted on certain
of its financial obligations and covenants to the Bank under the Notes. In
addition:
1. As to Loan No. 000-000-000 and Loan No. 000-000-000, the Company
made an affirmative covenant to maintain at all times a net worth of $3
million. As of March 31, 2001, according to the Company's Form 10-Q, the
Company's net worth was less than $2 million.
2. The Company's auditors, in their audit report on the financial
statements of the Company for the year ended December 31, 2000, issued a
"going concern" disclaimer. It is the Bank's position that the "going
concern" cautionary statement constituted a material adverse change to the
financial condition of the Company, which is a default under all of the
loan agreements between the Bank and the Company.
2
3. The Bank has also advised the Company that the Bank has exercised
its prerogative and right under the certain paragraph of each of the Loan
Agreements entitled "CESSATION OF ADVANCES" and that the Bank will not
honor any further requests for advances under the equipment line of credit
of the Bank. In addition, the Bank notified the Company that it would not
honor any further requests for advances under the corporate credit card
account established for the Company at the Bank, effective May 22, 2001.
F. Prior to the date of this Agreement, the Company also had defaulted on
certain of its obligations and covenants to American National Bank and Trust
Company of Chicago ("ANB").
G. To enable the Company to meet its future financial obligations,
including the Company's obligation to each of the Bank and ANB, the Company is
seeking to obtain from Landmark Communications, Inc. and/or certain affiliates
(collectively referred to as "Landmark") an infusion of additional capital and
loans (the "Landmark Infusion").
H. To facilitate the Landmark Infusion, ANB granted to the Company terms
of forbearance under which it agreed to refrain from exercising its available
loan collection rights and remedies arising as a result of the Company's
existing default (the "ANB Forbearance").
I. To likewise facilitate the Landmark Infusion, the Bank has agreed to
refrain from exercising its available rights and remedies under its Loan
Documents pursuant to the terms of a June 12, 2001 letter agreement (the
"Forbearance Letter") during the period (the "Forbearance Period") commencing
June 12, 2001 and continuing until terminated as provided under the terms of the
Forbearance Letter or of this Agreement. Prior to execution of the Forbearance
Letter, the Bank placed an administrative hold on a certain $75,930.00
"Certificate of Deposit" maintained by the Company at the Bank. On July 3, 2001,
the Bank applied the proceeds of such Certificate of Deposit to the balances
then outstanding on the Loans.
J. The penultimate paragraph of the Forbearance Letter contemplates that
the Bank and the Company will memorialize their agreed terms of forbearance in a
definitive document, which the parties intend to do by this Agreement.
K. The Company and the Bank have concluded that their execution and
delivery of this Agreement accurately serves to memorialize the terms of
forbearance between the Company and the Bank, is in their joint best interests,
and each of them acknowledges that the terms and provisions hereof are fair and
reasonable, that each has had the benefit of legal counsel and that each is
receiving a substantial and valuable benefit by the consummation of the
transactions contemplated herein.
NOW, THEREFORE, for and in consideration of the promises set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and for the performance of the mutual covenants
hereinafter to be performed, IT IS AGREED as follows:
1. Recitals. The recitals set forth above constitute an integral part of
this Agreement, evidencing the intent of the parties in executing this Agreement
and describing the
3
circumstances surrounding its execution. Accordingly, such recitals are, by
express reference, made a part of this Agreement, and this Agreement shall be
construed in the light thereof.
2. Company's Obligation. To induce the Bank to consent to the terms of
this Agreement, the Company, with the intent and understanding that the Bank is
expressly relying thereon, agrees to fully perform all of the following
obligations and to make the following deliveries:
(a) Payment Obligations.
(i) Payments Under the Loan Documents. During the Forbearance
Period, the Company shall pay current the Notes and timely remit all payments of
principal and interest hereafter required under the Loan Documents;
(ii) Additional Forbearance Payment. The Company shall further
remit to the Bank the amount of Ten Thousand and 00/100 Dollars ($10,000.00)
upon execution of the "Securities Purchase Agreement" dated as of ______ between
the Company and Landmark, to be applied by the Bank to the principal balances
outstanding under the Notes; and
(iii) Additional Monthly Payments. The Company shall further
remit additional monthly payments to the Bank in the amount of Five Thousand and
00/100 Dollars ($5,000.00) (the "Additional Monthly Payments"), to be applied by
the Bank to the principal balances outstanding under the Notes. The Company
shall make the Additional Monthly Payments on or before the fifteenth (15th) day
of each month, commencing during the month following the date on which final
regulatory and other approvals are obtained for the foregoing Securities
Purchase Agreement between the Company and Landmark and continuing until the
Company Obligations are satisfied in full.
(b) Reaffirmation and Restatement of Loan Documents and Bank
Collateral. Other than as expressly modified by the terms of this Agreement, the
Loan Documents and the Forbearance Letter, and the validity and first priority
of the liens and security interests in and to the Bank Collateral, are hereby
affirmed and ratified by the Company, and it is acknowledged and agreed that the
same are in full force and effect and are unconditionally binding and
enforceable against the Company in accordance with their respective terms. Upon
request of the Bank, the Company shall execute and deliver any and all documents
reasonably requested by the Bank consistent with the terms of this Agreement:
(i) to restate and reaffirm the Loan Documents; and (ii) to document and
(re)perfect the security interests of, and to preserve and maintain the first-
priority lien position held by, the Bank in and to the Bank Collateral.
3. Bank's Obligations. During the Forbearance Period, and only during
such time, the Bank acknowledges and waives any and all existing or continuing
defaults and other failures by the Company to meet any of its covenants
contained in the Loan Documents, and further agrees that it shall forbear and
refrain from exercising any of its rights and remedies against the Company or
against the Bank Collateral under the Loan Documents. Following termination of
the Forbearance Period, any further forbearance against the Company or against
the Bank Collateral shall be in the Bank's sole and exclusive discretion.
Nothing contained or implied in this Agreement shall be deemed a commitment or
obligation on the Bank's part to forbear beyond the end of the Forbearance
Period. The Bank hereby consents to the Company's consummation of the
transactions contemplated in connection with the Landmark Infusion;
4
provided, however, all liens granted to Landmark in the Bank Collateral shall be
subordinate and subject to the Bank's liens and if the Company pursues a
reincorporation in the State of Delaware, by merger, the Company shall, as a
condition to the consummation of such reincorporation, cause the surviving
entity to assume all of the Company's obligations to the Bank and shall provide
the Bank with ten (10) business days prior written notice of the effective date
of the merger.
4. Forbearance Termination Events. Upon the occurrence of any of the
events listed below (collectively, the "Termination Events"), the Company shall
be in default hereunder and, should the Company fail to cure such default in the
manner and within the applicable period set forth below, the Forbearance Period
shall immediately terminate and the Bank shall be immediately entitled to
exercise any and all rights under the Loan Documents:
(a) The Company fails to remit a payment required hereunder or under
the Loan Documents and does not cure such failure to pay within five (5)
business days after both the Company and Landmark receive written notice from
the Bank (the "Monetary Cure Period"), provided, however, that should the
Company default in any such payment obligations for three (3) consecutive
months, neither the requirement of notice nor the Monetary Cure Period shall
apply to any subsequent defaults in payment;
(b) The Company fails to comply with any of the terms and provisions
contained in this Agreement or contained in the Loan Documents (except for any
existing or continuing defaults and as otherwise acknowledged, waived or
modified herein), and does not cure such failure to comply within fourteen (14)
calendar days after both the Company and Landmark receive written notice from
the Bank;
(c) There is a bankruptcy, receivership, reorganization, general
assignment for the benefit of its creditors or other insolvency proceeding
instituted by the Company or out-of-court restructure involving a majority of
the Company's unsecured indebtedness;
(d) There is a bankruptcy, reorganization or other insolvency
proceeding instituted against the Company, which is not dismissed within sixty
(60) calendar days from the date of filing, provided however, nothing contained
herein shall preclude the Bank from participating as a creditor in such
proceeding to the fullest extent permitted by applicable law; and
(e) There is a receiver appointed for the Company or a material
portion of the Company assets, and such appointment is not stayed or reversed
within sixty (60) calendar days of the entry of the applicable court order; and
(f) ANB terminates the ANB Forbearance under the terms and conditions
of its governing agreement.
5. Negative Pledge Agreement. The Company agrees that, other than in the
ordinary course of business, it shall not cause or permit title to any of the
Bank Collateral to be sold, transferred, conveyed, exchanged or otherwise
disposed of, without having first obtained the prior written consent of the
Bank, which shall be given or withheld in the Bank's sole and absolute
discretion.
5
6. Acknowledgement, Estoppel and Release. The Company absolutely,
unconditionally, irrevocably and unequivocally covenants, acknowledges and
agrees, with the knowledge that the Bank is expressly relying thereon as an
express and material inducement to the forbearance agreed to herein, as follows:
(a) Upon the expiration of the Forbearance Period, the Bank shall
have the unconditional and absolute right to recover the unsatisfied portion of
the Loans in full, which obligations shall be immediately due and payable, and
to enforce all rights and remedies under the Loan Documents, or this Agreement,
in law or in equity;
(b) The Bank has not waived, modified or released, directly or
indirectly, expressly or impliedly any or all of its rights or remedies to
enforce the terms of the Loan Documents or to otherwise seek collection of the
Loans following expiration or termination of the Forbearance Period, with all
such rights being expressly reserved. Nothing contained in this Agreement shall
be deemed or construed to be a waiver, modification, release or forbearance of
any kind or nature whatsoever with respect to the Loans, or the rights and
remedies available to the Bank, except as expressly provided herein, and all
such rights in favor of the Bank are expressly preserved and shall be deemed
unaffected, valid and subsisting rights notwithstanding the execution and
delivery of this Agreement;
(c) The Company does not possess any claims, defenses, offsets,
recoupments or counterclaims of any kind or nature against the enforcement or
validity of any of the Loan Documents, this Agreement or the Loans
(collectively, the "Claims"), nor does the Company now have knowledge of any
facts that would give rise to any such Claims. In the event there now exists
facts that would give rise to any Claims against or with respect to the
enforcement of the Loan Documents, this Agreement or the Loans, the Company
hereby absolutely, unconditionally, irrevocably and unequivocally waives and
fully releases any and all such Claims to the same extent as if such Claims were
the subject of a lawsuit, adjudicated to a conclusion in favor of the Bank and
dismissed therein with prejudice;
(d) The Bank has a first and superior, valid, perfected and
enforceable security interest, upon and against all of the Bank Collateral and
there are no security interests, liens, claims or encumbrances against the Bank
Collateral.
(e) There is no obligation of the Bank of any kind or nature: (i) to
provide any financial accommodations to the Company, other than as specifically
provided herein; or (ii) to forbear in any manner whatsoever upon the expiration
of the Forbearance Period; and
(f) The invalidity or unenforceability of any provision in this
Agreement or in one or more of the Loan Documents shall in no way affect the
validity or enforceability of any other provision.
7. Representations and Warranties.
(a) The Company is a Michigan corporation duly organized and existing
in good standing under the laws of the State of Michigan and as a foreign
corporation in good standing under the laws of the State of Illinois and has
full power and organizational authority to enter into this Agreement and to
consummate the transactions contemplated herein. All
6
necessary governance action has been taken in order to authorize the execution,
delivery and performance of this Agreement; and
(b) The execution, delivery and performance of this Agreement does
not, and shall not violate any provision of any applicable law, regulation,
judgment, order, partnership agreement, operating agreement, trust agreement, or
by-laws, as the case may be, or any other agreement or instrument by which the
Company or its assets are bound.
8. Binding Effect. Upon the execution and delivery of this Agreement by
all parties hereto, the terms of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors or assigns,
and to Landmark, which is an intended third party beneficiary hereof.
9. Governing Law. This Agreement shall be deemed to have been made in the
State of Michigan, and shall be governed and controlled by the laws of the State
of Michigan as to interpretation, enforcement, validity, construction, effect,
and in all other respects, but without regard to internal choice of law
provisions of the State of Michigan.
10. Survival of Representations and Warranties. The representations,
warranties and covenants contained herein shall survive the execution and
delivery hereof and shall remain in full force and effect until a claim based
thereon is barred by applicable statutes of limitation.
11. Future Deliveries, Undertakings and Acknowledgements. The Company
agrees to take such further action and to execute such additional documents as
the Bank may now or hereafter reasonably require to effectuate the terms and
conditions of this Agreement and the undertakings of the Company hereunder. The
Bank acknowledges that upon the irrevocable satisfaction in full of the Loans,
it shall have no further rights to enforce the terms and provisions of the Loan
Documents or this Agreement.
12. Entire Agreement. This Agreement taken together with the Loan
Documents, constitutes the entire agreement between the parties relating to the
subject matter hereof and is the final and complete expression of their intent.
No prior or contemporaneous negotiations, promises, agreements, covenants,
representations of any kind or nature, whether made orally or in writing, have
been made by the parties, or any of them, in negotiations leading to this
Agreement or relating to the subject matter hereof, which are not expressly
contained herein, or which have not become merged and finally integrated herein;
it being the intention of the parties hereto that in the event of any subsequent
litigation, controversy, or dispute concerning the terms and provisions of this
Agreement, no party shall be permitted to offer to introduce oral or extrinsic
evidence concerning the terms and conditions hereof that are not included or
referred to herein and not reflected in writing. This Agreement may be changed,
modified or amended only by a writing executed by the parties hereto. No
conditions of any kind or nature exist to the legal effectiveness hereof, which
shall be in full force and effect immediately upon execution and delivery by all
parties hereto.
13. Loan Documents Unaffected. Subject to the Bank's obligation to
forbear, and except as expressly set forth herein: (a) the Loan Documents shall
remain in full force and effect in accordance with their respective terms; and
(b) nothing contained in this Agreement shall: (i) modify or alter any of the
terms or provisions in the Loan Documents in any manner whatsoever; (ii) cure,
waive, release or postpone any defaults now or hereafter existing under the Loan
7
Documents, (iii) establish a custom between any of the parties hereto; (iv) in
any way waive, limit, or condition the rights or remedies of Bank under the Loan
Documents; or (v) cause the Bank to be deemed in control of the Company, its
operations or properties, or to be acting as a "responsible person" with respect
to the operation and management of the Company, or its properties.
14. Strict Compliance. The failure of the Bank to insist upon strict
compliance with any of the terms, covenants, or conditions of one or more of the
Loan Documents or this Agreement, shall not be deemed a waiver of such term,
covenant, or condition, nor shall any waiver or relinquishment of any right or
power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any time or times.
15. Counterparts. This Agreement may be executed in on or more
counterparts all of which taken together constitute one and the same instrument.
16. Contract Review. All parties hereto agree that this Agreement has been
thoroughly reviewed by counsel of their respective choice and, in the event of
an ambiguity or conflict in the terms hereof, there shall be no presumption
against the drafter hereof.
17. Captions. The captions incorporated herein are for convenience only,
and do not in any way limit, amplify, of affect the terms or conditions hereof.
18. Severability. The invalidity or enforceability of any provision in
this Agreement or in one or more of the Loan Documents shall in no way affect
the validity or enforceability of any other provision.
19. Notice. Except as otherwise provided and limited in this Agreement,
any notice required to be given pursuant to this Agreement shall be given by
personal delivery, deposit in the United States Mail, postage prepaid, certified
or registered mail, overnight mail or via telecommunication to the following
parties.
If to the Company:
-----------------
Xxxxxxxxxxx.xxx, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
Fax No. (000) 000-0000
8
with a copy to:
--------------
Xxxxx Sugar, Esq.
Xxxxx X. Xxxxxxxx, Esq.
Jaffe, Raitt, Heuer & Xxxxx, P. C.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Fax No. (000) 000-0000
If to the Bank:
--------------
Xxxxx X. Xxxxxx
Chairman, President and CEO
Midwest Guaranty Bank
000 X. Xxx Xxxxxx Xxxx, Xxxxx 000
Xxxx, XX 00000-0000
Fax No. __________________
with a copy to:
--------------
Xxx Xxxxxx
Midwest Guaranty Bank
000 X. Xxx Xxxxxx Xx., Xxxxx 000
Xxxx, XX 00000-0000
Fax No. ___________________
If to Landmark:
--------------
Xxx X. Xxxxxxxx, III, Esquire
Executive Vice President and General Counsel
Landmark Communications, Inc.
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax No. (000) 000-0000
with a copy to:
--------------
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxx, P. C.
0000 Xxxx xx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax No. (000) 000-0000
Any such notice shall be deemed validly served upon actual delivery
thereof or upon acknowledgement or proof of receipt or upon the issuance of
a confirmation of transmittal by the telecommunication device utilized by
the sender, including the facsimile.
9
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year written above.
MIDWEST GUARANTY BANK, XXXXXXXXXXX.XXX, INC.
a Michigan banking corporation a Michigan corporation
By:________________________ By:______________________
Its:_______________________ Its:_____________________
10
