EXHIBIT (b)(2)
MODIFICATION AGREEMENT DATED APRIL 30, 2002, AMENDING LOAN AGREEMENT
DATED AUGUST 15, 2000, BETWEEN ORIG, LLC AND BANK OF LOUISVILLE.
MODIFICATION AGREEMENT
This is a Modification Agreement dated as of April 30, 2002 (this
"Modification Agreement"), among
BANK OF LOUISVILLE
a Kentucky banking corporation
000 Xxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
(the "Lender")
and
ORIG, LLC
a Kentucky limited liability company
00000 Xxxx Xxxxxxx Xxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
(the "Borrower")
and joined in by
X. X. Xxxxxxx
10172 Linn Xxxxxxx Xxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
("Xxxxxxx")
and
Xxxxx X. Xxxxx
10172 Linn Xxxxxxx Xxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
("Xxxxx")
and
NTS Future R. P. Corporation
00000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000 ("NTS Future").
RECITALS
A. Pursuant to a Loan Agreement dated as of August 15, 2000, as amended
by that certain Modification Agreement dated as of August 1, 2001 (the "Loan
Agreement"), the Lender provided the Borrower with (1) a Revolving Credit in the
maximum principal amount of Ten
Million and 00/100 Dollars ($10,000,000.00), as provided in Section 2.01 of the
Loan Agreement.
B. As of the date of this Modification Agreement, the Borrower's
obligations are evidenced by, among other things, (1) Revolving Credit Note A
dated August 15, 2000, made by the Borrower and payable to the order of the
Lender, in the maximum principal amount of Two Million and 00/100 Dollars
($2,000,000.00), with a maturity date of August 31, 2005; (2) Revolving Credit
Note B dated August 15, 2000, made by the Borrower and payable to the order of
the Lender, in the maximum principal amount of Two Million and 00/100 Dollars
($2,000,000.00), with a maturity date of August 31, 2005; (3) Revolving Credit
Note C dated August 15, 2000, made by the Borrower and payable to the order of
the Lender, in the maximum principal amount of Two Million and 00/100 Dollars
($2,000,000.00), with a maturity date of August 31, 2005; and (4) Revolving
Credit Note D dated August 1, 2001, made by the Borrower and payable to the
Order of the Lender, in the maximum principal amount of Four Million and 00/100
Dollars (4,000,000.00) with a maturity date of August 31, 2005.
C. The parties wish to enter into this Modification Agreement to modify
the Loan Agreement and the other Borrower Documents (as the term is defined in
the Loan Agreement) as necessary to (1) increase the maximum principal amount of
the Revolving Credit Loan to Thirteen Million Five Hundred Thousand and 00/100
Dollars ($13,500,000.00), (2) increase Xx. X. X. Xxxxxxx' Guaranty to Ten
Million One Hundred Twenty Five Thousand Dollars ($10,125,000.00), (3) increase
Xx. Xxxxx X. Xxxxx'x Guaranty to Three Million Three Hundred Seventy Five
Thousand Dollars ($3,375,000.00), (4) amend and restate Revolving Credit Note D
in the face principal amount of Seven Million Five Hundred Thousand and 00/100
Dollars ($7,500,000.00), (5) join NTS Future as a party to the Pledge Agreement
and (6) otherwise affect the Loan Agreement and other Borrower Documents as
amended by this Modification Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the promises
and agreements set forth herein, and for other good and valuable consideration,
the mutuality, receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. CAPITALIZED TERMS. Unless otherwise defined herein, all capitalized
terms shall have the meanings given them in the Loan Agreement, and the meanings
given to all capitalized terms shall be equally applicable to both the singular
and plural forms of the terms defined.
2. SECTION I OF THE LOAN AGREEMENT. Section I of the Loan Agreement is
hereby amended as follows, and the other paragraphs of Section I remain in full
force and effect without modification:
(a) AMENDMENT OF EXISTING DEFINITIONS. The definitions of the
following terms as set forth in Section I of the Loan Agreement, are hereby
amended and restated to read in their respective entireties as follows:
"Borrower Documents" shall mean, collectively, this Agreement
as amended by the August 2001 Modification Agreement, as further
amended by the
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April 2002 Modification Agreement (and as it may be further amended,
extended or modified from time to time) and any and all agreements,
instruments, and/or other documents referred to in this Modification
Agreement, the August 2001 Modification Agreement and the April 2002
Modification Agreement to be executed or delivered by the Borrower
and/or any Guarantor.
"Guaranty Agreements" shall mean, collectively, (a) the
Guaranty Agreement dated as of August 15, 2000, among the Lender, the
Borrower, and Xxxxxxx, as amended by the August 2001 Modification
Agreement, as further amended by the April 2002 Modification Agreement
and as may be further amended or modified from time to time; and (2)
the Guaranty Agreement dated as of August 15, 2000, among the Lender,
the Borrower and Xxxxx, as amended by the August 2001 Modification
Agreement, as further amended by the April 2002 Modification Agreement
and as may be further amended or modified from time to time. "Guaranty
Agreement" shall mean either of the Guaranty Agreements.
"Partnership" shall mean any of NTS III, NTS IV, NTS V, NTS
VI, NTS VII, NTS Plus, NTS/BBC I and/or NTS/Mall, and "Partnerships"
shall mean any of them or any combination of them.
"Pledge Agreement" shall mean the Pledge Agreement dated as of
August 15, 2000, between the Borrower and the Lender, including all
supplements thereto and as amended by the August 2001 Modification
Agreement, as further amended by the April 2002 Modification Agreement
and as it may be further amended from time to time.
"Pledgors" shall mean Xxxxxxx, Xxxxx and NTS Future.
"Revolving Credit Notes" shall mean collectively the four
promissory notes issued by the Borrower to the order of the Lender with
respect to the Revolving Credit Loan, three in the face principal
amount of Two Million and 00/100 Dollars ($2,000,000.00) each (for a
total of Six Million and 00/100 Dollars ($6,000,000.00)), and
substantially in the form of ANNEXES A-1 through A-3 attached hereto,
and one in the face principal amount of Seven Million Five Hundred
Thousand and 00/100 Dollars ($7,500,000.00) substantially in the form
of ANNEX A-4 to the April 2002 Modification Agreement, and all notes
delivered in renewal, replacement, substitution, extension and/or
novation of any of these. "Revolving Credit Note" shall mean any of the
Revolving Credit Notes; and "Revolving Credit Note A" shall mean the
Revolving Credit Note in the form of ANNEX A-1, "Revolving Credit Note
B" shall mean the Revolving Credit Note in the form of ANNEX A-2,
"Revolving Credit Note C" shall mean the Revolving Credit Note in the
form of ANNEX A-3, and "Amended and Restated Revolving Credit Note D"
shall mean the Amended and Restated Revolving Credit Note in the form
of ANNEX A-4 to the April 2002 Modification Agreement, and in each case
all notes delivered in renewal, replacement, substitution, extension
and/or novation thereof.
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(b) ADDITIONAL DEFINITIONS. Section I of the Loan Agreement is
hereby supplemented to add the following definition which shall read in its
entirety as follows:
"April 2002 Modification Agreement" shall mean that certain
Modification Agreement dated as of April ___, 2002, between the Lender
and the Borrower, Xx. Xxxxx, Xx. Xxxxxxx and NTS Future.
"NTS/BBC I" shall mean NTS/BBC I, a limited partnership
organized under the laws of the State of Kentucky.
"NTS/Mall" shall mean NTS/Mall Limited Partnership, a limited
partnership organized under the laws of the State of Kentucky.
3. SECTION II OF THE LOAN AGREEMENT. Section II of the Loan Agreement
is hereby amended as follows, and the other paragraphs of Section II remain in
full force and effect without modification:
(a) SECTION 2.01. Section 2.01 of the Loan Agreement is hereby
amended and restated to read in its entirety as follows:
SECTION 2.01 AMOUNT OF REVOLVING CREDIT. The total principal
amount available under the Revolving Credit shall be Thirteen Million
Five Hundred Thousand Dollars ($13,500,000.00).
(b) SECTION 2.03(e)(4). Section 2.03(e)(4) of the Loan
Agreement is hereby amended and restated to read in its entirety as follows:
(4) Together with a Request for Advance, the Borrower shall
deliver to the Lender (A) a Supplement to Pledge Agreement in such form
and such information as the Lender may require to confirm that the
Partnership Interests to be acquired with the proceeds (in whole or in
part) of that Revolving Credit Loan shall become subject to the Pledge
Agreement; (B) Partnership Notices and Assignments with respect to all
of the Partnership Interests to be acquired with the proceeds (in whole
or in part) of that Revolving Credit Loan; (C) Amendments to Financing
Statements describing the Partnership Interests to be acquired (in
whole or in part) with proceeds from the Revolving Credit Loan as
additional collateral for the obligations secured by the Pledge
Agreement; and (D) evidence satisfactory to the Lender that the
Partnership Interests to be acquired with proceeds (in whole or in
part) of that Revolving Credit Loan are or will be (upon completion of
the acquisition) owned by the Borrower free from any interest, claim,
lien, charge, encumbrance and/or security interest of any Person other
than the Lender. Without limiting the foregoing clause (D), such
evidence shall include, but not be limited to, (I) in the case of the
Borrower's acquisition of Partnership Interests which, when aggregated
with all previous acquisitions of Partnership Interests from the same
Person, directly or indirectly, have an
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aggregated acquisition cost of $25,000 or greater, (a) a
search or searches of such public records in the name of the
Borrower as the Lender may specify, in its discretion,
disclosing no lien, charge, interest, encumbrance and/or
security interest in favor of any Person, other than the
Lender, and (b) a search or searches of such public records in
the name of the Person from whom the Borrower acquired or
would acquire the Partnership Interests as the Lender may
specify, in its discretion, disclosing no lien, charge,
interest, encumbrance and/or security interest in favor of any
Person, and (II) in all cases, delivery of any and all
certificates and/or other writings evidencing and/or
representing such Partnership Interests, together with an
assignment in blank in form and substance satisfactory to the
Lender and its counsel in their discretion.
4. SECTION IV OF THE LOAN AGREEMENT. Section IV of the Loan Agreement
is hereby amended as follows, and the other paragraphs of Section IV remain in
full force and effect without modification:
(a) SECTION 4.01(d). Section 4.01(d) of the Loan Agreement is
hereby amended and restated to read in its entirety as follows:
(d) OPINION OF COUNSEL FOR THE BORROWER, THE GUARANTORS, AND
THE PLEDGORS. The Borrower, the Guarantors and the Pledgors shall have
furnished to the Lender at the Borrower's expense, with the legal
opinion of Xxxxxxxxxx, Doll & XxXxxxxx PLLC, as counsel for the
Borrower, addressed to the Lender, dated the date of this Agreement,
addressing the matters set forth in ANNEX C, and otherwise satisfactory
to the Lender and its counsel.
(b) SECTION 4.01(k). Section 4.01(k) of the Loan Agreement is
hereby amended and restated to read in its entirety as follows:
(k) RECORDINGS AND FILINGS. The Lender shall have received
evidence satisfactory to it that all financing statements or other
instruments, as the Lender may reasonably request, have been delivered
by the Borrower and filed or recorded in such public offices as the
Lender may request to perfect and maintain the perfection of the
security interests in NTS III, NTS IV, NTS V, NTS VI, NTS VII, and NTS
Plus (including, without limitation, assignments of partnership
certificates as provided in Section 2.03(e)(4)) which secure the Loan,
and to release any security interests, financing statements and/or
other liens or encumbrances on any of the Collateral other than such
interests, liens or encumbrances in favor of the Lender, have been
delivered to the Lender by the Borrower.
(c) SECTION 4.01(p). A new Section 4.01(p) is added to read as
follows:
(p) EVIDENCE OF OWNERSHIP OF NTS/BBC I AND NTS/MALL. The
Borrower shall have delivered to the Lender evidence satisfactory to
the Lender that Xx. Xxxxx, Xx. Xxxxxxx, and NTS Future collectively own
at least 50.9%
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of the partnership interests of NTS/Mall and that Xx. Xxxxx and Xx.
Xxxxxxx collectively own at least 50.9% of the partnership interests of
NTS/BBC I.
5. SECTION V OF THE LOAN AGREEMENT. Section V of the Loan Agreement is
hereby amended as follows, and the other paragraphs remain in full force and
effect without modification:
(a) SECTION 5.18. Section 5.18 of the Loan Agreement is
amended and restated to read in its entirety as follows:
5.18 JOINDER OF SUBSIDIARIES. If the Borrower creates or
acquires any Subsidiary, the Borrower shall cause such subsidiary to
execute and deliver to the Lender an agreement (a "Joinder Agreement")
substantially in the form attached as ANNEX D to the April 2002
Modification Agreement (Amended Form of Joinder Agreement) pursuant to
which such Subsidiary shall join as a Borrower hereunder and under each
document to which the Borrower is named as a party. The Borrower shall
cause the Joinder Agreement to be delivered to the Lender within five
(5) Business Days after the date of the filing of such Subsidiary's
articles of incorporation if the Subsidiary is a corporation, the date
of the filing of its certificate of limited partnership if it is a
limited partnership, or the date of its organization if it is an entity
other than a corporation or a limited partnership.
(b) Paragraph 4(b) of the August 2001 Modification Agreement
is hereby deleted in its entirety.
(c) Section V of the Loan Agreement is hereby modified and
amended by adding the following provision:
5.19 RECORDINGS AND FILINGS. The Borrower or Lender shall have
filed or recorded in such public offices as the Lender may request all
financing statements or other instruments delivered to Lender pursuant
to Section 4.01(k) of this Loan Agreement to perfect and maintain the
perfection of the security interests which secure the Loan, and to
release any security interests, financing statements and/or other liens
or encumbrances on any of the Collateral other than such interests,
liens or encumbrances in favor of the Lender. Notwithstanding the fact
that Section 4.01(k) of this Agreement does not require perfection of
the security interests in NTS/BBC I and/or NTS/Mall upon any Event of
Default, Lender may, without further consent of Borrower, file any and
all financing statements, complete any assignments of partnership
certificates, and/or otherwise perfect the security interest in NTS/BBC
I and/or NTS/Mall and otherwise exercise any and all of the Lender's
rights under Paragraph 9 of the Pledge Agreement. The Borrower hereby
authorizes Lender to execute and file on behalf of Borrower all
financing statements and documents deemed necessary or appropriate to
perfect Borrower's interest in any of the Collateral. Borrower hereby
constitutes Lender as its attorney-in-fact to execute and file all such
writings for the foregoing purposes, all acts of such attorney being
hereby ratified
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and confirmed; such power being coupled with an interest and
irrevocable until the obligations under the Loan Documents are
indefensibly paid in full and this Agreement is terminated.
6. CERTAIN UNDERSTANDING. It is the understanding of the parties to
this Modification Agreement that the term "Loan Agreement" as used in Revolving
Credit Notes A, B, C and D means the Loan Agreement as amended by this April
2002 Modification Agreement.
7. AMENDMENT TO XXXXXXX' GUARANTY AGREEMENT. The Guaranty Agreement
dated as of August 15, 2000, among Lender, the Borrower and X.X. Xxxxxxx, as
Guarantor (the "Xxxxxxx Guaranty"), is hereby amended, clarified and reaffirmed
as follows:
(a) SECTION 1. Section 1 of the Xxxxxxx Guaranty is hereby
amended and restated to read in its entirety as follows:
SECTION 1
RECITALS AND DEFINITIONS
This Agreement is entered into concurrently with and pursuant
to a Loan Agreement dated as of August 15, 2000, between the Lender and
the Borrower and joined in by the Guarantor and Xxxxx X. Xxxxx, as
modified by a Modification Agreement dated as of August 1, 2001, among
the Lender, the Borrower, the Guarantor and Xxxxx X. Xxxxx, as further
modified by a Modification Agreement dated as of April ____, 2002, the
"Loan Agreement"). Capitalized terms not otherwise defined herein shall
have the meanings given to them in the Loan Agreement. Pursuant to the
Loan Agreement, the Borrower has executed and delivered to the Lender
four Revolving Credit Notes. (1) Revolving Credit Note A dated August
15, 2000, in the maximum principal amount of Two Million and 00/100
Dollars ($2,000,000.00); (2) Revolving Credit Note B dated August 15,
2000, in the maximum principal amount of Two Million and 00/100 Dollars
($2,000,000.00); (3) Revolving Credit Note C dated August 15, 2000 in
the maximum principal amount of Two Million Dollars ($2,000,000.00) and
(4) Amended and Restated Revolving Credit Note D dated April ___, 2002
in the maximum principal amount of Seven Million Five Hundred Thousand
Dollars ($7,500,000.00) (for a total of Thirteen Million Five Hundred
Thousand and 00/100 Dollars ($13,500,000.00). Each of the four
Revolving Credit Notes are payable to the order of the Lender (such
four Revolving Credit Notes, including any notes or other instruments
issued in renewal, replacement, extension, modification, novation
and/or revival thereof, the "Revolving Credit Notes"). The Borrower and
the Guarantors have also entered into various other Borrower Documents
(as that term is defined in the Loan Agreement).
(b) SECTION 2. Section 2 of the Xxxxxxx Guaranty is hereby
amended and restated to read in its respective entirety as follows:
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SECTION 2
GUARANTY OF PAYMENT AND PERFORMANCE
The Guarantor, intending to be bound as an accommodation party
for the Borrower, jointly and severally, absolutely and unconditionally
guarantees the following obligations and/or liabilities (collectively,
the "Guaranteed Principal"): (a) The prompt payment in full by the
Borrower of all principal obligations under the Revolving Credit Notes;
and (b) the punctual and faithful performance and observance by the
Borrower of all other obligations and undertakings to be performed or
observed pursuant to the Loan Agreement and the other Borrower
Documents not included in the Other Guaranteed Amounts defined below.
In addition to the Guaranteed Principal, the Guarantor, intending to be
bound as an accommodation party for the Borrower, jointly and
severally, absolutely and unconditionally guarantees the following
obligations and/or liabilities (collectively, the "Other Guaranteed
Amounts"): (x) any and all interest accruing on the Guaranteed
Principal under the Revolving Credit Notes, the Loan Agreement and/or
any other of the Borrower Documents; and (y) that the Guarantor will,
upon demand, pay to the Lender any and all fees, charges and costs of
collecting the Guaranteed Principal and/or Other Guaranteed Amounts or
otherwise enforcing the Lender's rights under this Agreement, including
without limitation, the reasonable fees and expenses of the Lender's
counsel. Notwithstanding the foregoing, the maximum aggregate liability
of the Guaranty under this Agreement for the Guaranteed Principal shall
not exceed Ten Million One Hundred Twenty Five Thousand and 00/100
Dollars ($10,125,000.00) (the "Guarantor Maximum"). The Guaranteed
Principal, limited to the Guarantor Maximum, and the Other Guaranteed
Amounts are sometimes referenced in this Agreement as the "Guaranteed
Obligations." The Guaranteed Obligations under this Agreement shall be
in addition to the maximum aggregate liability of the Guarantor or any
other guarantor of the Lender under any Guaranty Agreement of the
Guarantor or any other guarantor heretofore or hereafter given.
8. AMENDMENT TO XXXXX'X GUARANTY AGREEMENT. The Guaranty Agreement
dated as of August 15, 2000, among Lender, the Borrower and Xxxxx X. Xxxxx, as
Guarantor (the "Xxxxx Guaranty") is hereby amended, clarified and reaffirmed as
follows:
(a) SECTION 1. Section 1 of the Xxxxx Guaranty is hereby
amended and restated to read in its entirety as follows:
SECTION 1
RECITALS AND DEFINITIONS
This Agreement is entered into concurrently with and pursuant
to a Loan Agreement, dated as of August 15, 2000, between the Lender
and the Borrower and joined in by the Guarantor and X.X. Xxxxxxx, as
modified by a Modification
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Agreement dated as of August 1, 2001 among the Lender, the Borrower,
the Guarantor and X.X. Xxxxxxx, as further modified by a Modification
Agreement dated as of April ____, 2002 (the "Loan Agreement").
Capitalized terms not otherwise defined herein shall have the meanings
given to them in the Loan Agreement. Pursuant to the Loan Agreement,
the Borrower has executed and delivered to the Lender four Revolving
Credit Notes. (1) Revolving Credit Note A dated August 15, 2000, in the
maximum principal amount of Two Million and 00/100 Dollars
($2,000,000.00); (2) Revolving Credit Note B dated August 15, 2000, in
the maximum principal amount of Two Million and 00/100 Dollars
($2,000,000.00); (3) Revolving Credit Note C in the maximum principal
amount of Two Million Dollars ($2,000,000.00) and (4) Amended and
Restated Revolving Credit Note D dated April ____, 2002 in the maximum
principal amount of Seven Million Five Hundred Thousand Dollars
($7,500,000.00) for a total of Thirteen Million Five Hundred Thousand
and 00/100 Dollars ($13,500,000.00). Each of the four Notes are payable
to the order of the Lender (such four Revolving Credit Notes, including
any notes or other instruments issued in renewal, replacement,
extension, modification, novation and/or revival thereof, the
"Revolving Credit Notes"). The Borrower and the Guarantors have also
entered into various other Borrower Documents (as that term is defined
in the Loan Agreement).
(b) SECTION 2. Section 2 of the Xxxxx Guaranty is hereby
amended and restated to read in its entirety as follows:
SECTION 2
GUARANTY OF PAYMENT AND PERFORMANCE.
-----------------------------------
The Guarantor, intending to be bound as an accommodation party
for the Borrower, jointly and severally, absolutely and unconditionally
guarantees the following obligations and/or liabilities (collectively,
the "Guaranteed Principal"): (a) the prompt payment in full by the
Borrower of all principal obligations under the Revolving Credit Notes;
and (b) the punctual and faithful performance and observance by the
Borrower of all other obligations and undertakings to be performed or
observed pursuant to the Loan Agreement, and the other Borrower
Documents not included in the Other Guaranteed Amounts defined below.
In addition to the Guaranteed Principal, the Guarantor, intending to be
bound as an accommodation party for the Borrower, jointly and
severally, absolutely and unconditionally guarantees the following
obligations and/or liabilities (collectively, the "Other Guaranteed
Amounts'): (x) any and all interest accruing on the Guaranteed
Principal under the Revolving Credit Notes, the Loan Agreement and/or
any other of the Borrower Documents; and (y) that the Guarantor will,
upon demand, pay to the Lender any and all fees, charges and costs of
collecting the Guaranteed Principal and/or Other Guaranteed Amounts or
otherwise enforcing the Lender's rights under this Agreement,
including, without limitation, the reasonable fees and expenses of the
Lender's counsel.
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Notwithstanding the foregoing, the maximum aggregate liability of the
Guarantor under this Agreement, for the Guaranteed Principal shall not
exceed the Three Million Three Hundred Seventy Five Thousand and 00/100
Dollars ($3,375,000.00) (the "Guarantor Maximum"). The Guaranteed
Principal, limited to the Guarantor Maximum and the Other Guaranteed
Amounts are sometimes referenced in this Agreement as the "Guaranteed
Obligations." The Guaranteed Obligations under this Agreement, shall be
in addition to the maximum aggregate liability of the Guarantor or any
other guarantor to the Lender under any Guaranty Agreement of the
Guarantor or any other guarantor heretofore or hereafter given.
9. AMENDMENTS TO PLEDGE AGREEMENT. The Pledge Agreement is hereby
amended, clarified and reaffirmed as follows:
(a) RECITALS. The Recitals to the Pledge Agreement are hereby
amended and restated to read in their entireties as follows:
RECITALS
A. The Borrower and the Lender have entered into a
Loan Agreement dated as of August 15, 2000 (as amended by a
Modification Agreement dated as of August 1, 2001, as further amended
by a Modification Agreement dated as of April ____, 2002, and as it may
be subsequently modified, amended and/or supplemented from time to
time, the "Loan Agreement") between the Borrower and the Lender, and
joined in by the Guarantors (as defined therein), pursuant to which the
Lender has made Revolving Credit available to the Borrower in an
aggregate amount not to exceed Thirteen Million Five Hundred Thousand
and 00/100 Dollars ($13,500,000.00).
B. Also under the Loan Agreement, among other things,
the Borrower has, among other things, delivered to the Lender four
Revolving Credit Notes payable to the order of Lender, Revolving Credit
Notes A, B and C, each dated August 15, 2000, in the maximum principal
amount of Two Million and 00/100 Dollars ($2,000,000.00), each being
payable to the order of the Lender, and Amended and Restated Revolving
Credit Note D dated April ____, 2001, in the maximum principal amount
of Seven Million Five Hundred Thousand and 00/100 Dollars
($7,500,000.00) (for a total of Thirteen Million Five Hundred Thousand
and 00/100 Dollars ($13,500,000.00)), also payable to the order of the
Lender.
(b) DEFINITIONS. Section 1 of the Pledge Agreement is hereby amended so
that the following defined term(s) is (are) amended and restated as follows,
with the other definitions remaining in full force and effect without
modification:
"Supplement to Pledge Agreement" shall mean a Supplement to
Pledge Agreement generally in the form attached to this Pledge
Agreement and the April 2002 Modification Agreement as Schedule 1(S)-1
properly completed and
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satisfactory to the Lender in all respects, describing New Interests
that the Borrower, Xxxxx, Xxxxxxx and/or NTS Futures have acquired
which automatically become subject to the terms of this Pledge
Agreement.
(c) ADDITIONAL DEFINITIONS. Section 1 of the Pledge Agreement
is hereby supplemented to add the following definitions, which shall read in
their respective entireties as follows:
"Loan Agreement" shall mean the Loan Agreement dated as of August 15,
2000, between the Lender, and the Borrower and joined in by the
Guarantors (as defined therein), as modified by a Modification
Agreement dated as of August 1, 2001, as further modified by a
Modification Agreement dated as of April ____, 2002, among the Lender,
the Borrower and the Guarantors, and as that Loan Agreement may be
further modified or amended from time to time.
(d) SUBSTITUTION OF AMENDED FORM OF SUPPLEMENT TO PLEDGE AGREEMENT. The
Pledge Agreement is hereby amended by substituting the Amended Form of
Supplement to Pledge Agreement attached as Schedule 1(S) to this Modification
Agreement in lieu of and in replacement for the existing Schedule 1(S) attached
to the form of Pledge Agreement attached to the Loan Agreement.
10. CONDITIONS PRECEDENT. The Lender's obligation to enter into this
Modification Agreement and to provide the increase in the Revolving Credit
contemplated in this Modification Agreement shall be conditioned upon the
fulfillment of all the following conditions:
(a) EXECUTED AGREEMENTS. The Borrower shall have delivered a
duly authorized and fully executed original of each of this Modification
Agreement and of Amended and Restated Revolving Credit Note D in the form of
ANNEX A-4 to this Modification Agreement.
(b) REPRESENTATIONS AND WARRANTIES. Each and every
representation and warranty made by or on behalf of the Borrower relating to
this Modification Agreement or any of the other Borrower Documents, as modified
by this Modification Agreement, or the transactions contemplated hereby or
thereby shall be true, complete and correct on and as of the date of this
Agreement.
(c) NO DEFAULTS. There shall exist no Event of Default or
Unmatured Default which has not been cured to the Lender's satisfaction.
(d) NO CHANGE IN CONDITION. There shall have been no material
adverse change in the condition, financial or otherwise, of the Borrower or
either Guarantor from that existing on the date of the financial statements most
recently delivered by or on behalf of the Borrower to the Lender.
(e) OTHER DOCUMENTS. The Borrower shall have delivered to the
Lender any and all other agreements, instruments and documents as the Lender may
reasonably have
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requested in order to further protect its security or evidence compliance by the
Borrower with this Modification Agreement and the other Borrower Documents.
(f) LENDER'S FEES AND EXPENSES. The Borrower shall have paid
to the Lender a fee in the amount of Ten Thousand Dollars ($10,000.00) as well
as the Lender's costs and expenses as of the date of this Modification Agreement
in accordance with paragraph 14 of this Modification Agreement.
(g) RESOLUTIONS. Certified copy of appropriate resolutions (1)
authorizing the execution of this Modification Agreement and any and all other
documents, instruments and agreements referred to herein which are required to
be executed and delivered by the Borrower, and (2) authorizing consummation of
the transactions contemplated by this Modification Agreement.
(h) LEGAL OPINION. The Borrowers and the Guarantors shall have
furnished to the Lender, at the Borrower's expense, the legal opinion of
Xxxxxxxxxx, Doll & XxXxxxxx PLLC, as counsel for the Borrower and the
Guarantors, addressed to the Lender and its counsel, dated the date of this
Modification Agreement, addressing the matters set forth in Annex 9(h) to this
Modification Agreement.
(i) INCUMBENCY CERTIFICATE. A certificate certifying the names
of the Persons of the Borrower authorized to sign this Modification Agreement
and the other Borrower Documents each has signed or will sign in connection with
this Modification Agreement, together with the true signatures of such Persons.
(j) CERTIFICATE OF EXISTENCE. An updated Certificate of
Existence issued by the Secretary of State of the Commonwealth of Kentucky and
dated not more than thirty (30) days prior to the date of this Modification
Agreement.
(k) ARTICLES OF ORGANIZATION AND OPERATING AGREEMENT. The
Borrower shall have furnished the Lender a certified copy of the Borrower's
Operating Agreement, current as of the date of this Modification Agreement, and
a certificate of the [Manager] [Secretary] of the Borrower reflecting the
current Members' Participating Percentages.
11. CHANGES IN REFERENCES IN BORROWER DOCUMENTS. All references in the
Borrower Documents to the "Borrower Documents" shall be deemed to include a
reference to this Modification Agreement, Amended and Restated Revolving Credit
Note D, and any and all other agreements, instruments and documents executed
and/or delivered in connection with this Modification Agreement.
12. REAFFIRMATIONS AND CONSENTS. The Borrower and the Guarantors:
(a) CONSENT. Consent to the transactions contemplated in this
Modification Agreement.
(b) REAFFIRM. Reaffirm the Borrower's and the Guarantors'
obligations under any and all of the Borrower Documents and any and all other
agreements, instruments and documents to which it is a party and under which the
Lender has any rights or obligations and
12
which is or may be related in any way to the agreements, instruments and
documents mentioned in or affected by this Modification Agreement, or the Loan
Agreement or any of the other Borrower Documents as amended by this Modification
Agreement.
(c) AGREE. Agree that all of the Borrower Documents remain in
full force and effect, as expressly modified or altered by or in connection with
this Agreement.
13. REPRESENTATIONS AND WARRANTIES. To induce the Lender to enter into
this Modification Agreement, the Borrower agrees that except as otherwise
disclosed on Schedule 2 attached hereto and made a part hereof, the
representations and warranties made by the Borrower and the Guarantors, as set
forth in Section VI of the Loan Agreement as amended by this Modification
Agreement, are hereby remade and are incorporated by reference into this
Modification Agreement as if set out in full.
14. COSTS AND EXPENSES. The Borrower shall pay to the Lender upon
demand all out-of-pocket costs and expenses incurred by the Lender in connection
with the transactions contemplated by this Modification Agreement, including,
but not limited to, the Lender's reasonable attorneys' fees and disbursements
incurred in preparing this Modification Agreement and the documents to be
executed pursuant to this Modification Agreement (including, by way of
illustration but not by way of limitation, the documents to be executed as a
condition precedent to this Modification Agreement) and any and all costs and
fees incurred in connection with the recording or filing of any and all
documents and instruments in any public offices, pursuant to or as a consequence
of this Modification Agreement, or to perfect or protect any security for the
Borrower's obligations described in or incurred in connection with this
Modification Agreement. The Borrower further agrees to pay on demand all
out-of-pocket costs and expenses of the Lender, including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Lender, in
connection with the execution, delivery, administration, enforcement, or
protection of the Lender's rights under the Loan Agreement and the other
Borrower Documents, as amended by this Modification Agreement.
15. BREACH OF THIS AGREEMENT. Any failure of the Borrower and
Guarantors to observe and perform all of the terms, conditions and provisions of
the Loan Agreement and this Modification Agreement shall constitute an Event of
Default.
16. NTS FUTURE. NTS Future joins in this Modification Agreement for the
purpose of joining into the Pledge Agreement as a party to the Pledge Agreement
to the extent that NTS Future owns any interest in the Partnerships.
17. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. The Loan Agreement, the Borrower
Documents, this Modification Agreement and the agreements, instruments and other
documents referred to herein, constitute the entire agreement of the parties
with respect to, and supersede all prior understandings of the parties with
respect to, the subject matter hereof. No change, modification, addition, or
termination of this Modification Agreement shall be enforceable unless in
writing and signed by the party against whom enforcement is sought.
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(b) GOVERNING LAW. The Loan Agreement and this Modification
Agreement and the related writings and the respective rights and obligations of
the parties shall be governed by, and construed and enforced in accordance with,
the laws (without regard to conflicts of laws rules) of the Commonwealth of
Kentucky, except to the extent the laws of any other state, province or country
where security for the Loans is located dictate that the laws of such other
state, province or country shall govern the creation, perfection or enforcement
of the Lender's rights in such security.
(c) COUNTERPARTS. This Modification Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, and it
shall not be necessary in making proof of this Modification Agreement or the
terms hereof to produce or account for more than one of such counterparts.
(d) HEADINGS. The headings used in this Modification Agreement
have been included solely for ease of reference and shall not be considered in
the interpretation or construction of this Modification Agreement.
(e) SEVERABILITY. If any court shall finally determine that
any part, term or provision of the Loan Agreement and this Modification
Agreement is in any way unenforceable, such part, term or provision shall be
reduced to the extent necessary to make such provision enforceable to the
greatest extent allowed by law. Consistent with the foregoing, if any provision
of the Loan Agreement and this Modification Agreement or its application shall
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of all other applications of that provision and of all other
provisions and applications of this Modification Agreement shall not in any way
be affected or impaired.
(f) BINDING EFFECT. This Modification Agreement shall be
binding upon, and shall inure to the benefit of, the Lender, the Borrower and
the Guarantors, and their respective successors and assigns.
(g) FURTHER ASSURANCES. From time to time at another the
Lender's request and without further consideration, the Borrower and Guarantors
shall execute and deliver such further agreements, instruments and other
documents, and shall take such other actions as the Lender may reasonably
request, in order to more effectively carry out the intents and purposes of this
Modification Agreement.
(h) ANNEXES AND ATTACHMENTS. All annexes or other attachments
to this Modification Agreement are incorporated into this Modification Agreement
as if set out in full at the first place in this Modification Agreement that
reference is made hereto.
(i) NO WAIVER OR COURSE OF DEALING. The Lender's execution and
delivery of this Modification Agreement does not waive any right that the Lender
might have under any of the Borrower Documents except for the specific
modifications and amendments contained in this Modification Agreement. Neither
this Modification Agreement, nor earlier amendments or modifications of any of
the Borrower Documents, creates any course of dealing among the Lender, the
Borrower, Guarantors, or any other Person, and neither the Borrower, Guarantors,
nor any other Person should infer that the Lender will enter into any other or
future amendment
14
or modification of any of the Borrower Documents in the future, whether similar
of dissimilar to this Modification Agreement.
(j) ACKNOWLEDGEMENT. THE BORROWER AND EACH GUARANTOR
ACKNOWLEDGES THAT IT HAS RECEIVED A COPY OF THIS MODIFICATION AGREEMENT AND EACH
OF THE OTHER BORROWER DOCUMENTS, AS FULLY EXECUTED BY THE PARTIES THERETO. THE
BORROWER AND EACH GUARANTOR ACKNOWLEDGES THAT IT (A) HAS READ THIS MODIFICATION
AGREEMENT AND THE OTHER BORROWER DOCUMENTS OR HAS CAUSED SUCH DOCUMENTS TO BE
EXAMINED BY ITS REPRESENTATIVE OR ADVISORS; (B) IS THOROUGHLY FAMILIAR WITH THE
TRANSACTIONS CONTEMPLATED IN THIS MODIFICATION AGREEMENT AND THE OTHER BORROWER
DOCUMENTS; AND (C) HAS HAD THE OPPORTUNITY TO ASK SUCH QUESTIONS TO
REPRESENTATIVES OF THE LENDER, AND RECEIVED ANSWERS THERETO, CONCERNING THE
TERMS AND CONDITIONS OF THE TRANSACTION CONTEMPLATED IN THIS MODIFICATION
AGREEMENT AND THE OTHER BORROWER DOCUMENTS AS IT DEEMS NECESSARY IN CONNECTION
WITH THE ITS DECISION TO ENTER INTO THIS MODIFICATION AGREEMENT.
[THE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
15
IN WITNESS WHEREOF, the parties have executed and delivered this
Modification Agreement as of the date set forth in the preamble hereto, but
actually on the dates set forth below.
LENDER:
BANK OF LOUISVILLE
By
---------------------------------------------
XXXXXXX XXXX, SENIOR VICE PRESIDENT
Date:
------------------------------------------
BORROWER:
ORIG, LLC
By
---------------------------------------------
X. X. XXXXXXX, MANAGER
Date:
------------------------------------------
16
GUARANTOR/PLEDGOR:
X. X. XXXXXXX
-----------------------------------------------
X. X. XXXXXXX
Date:
------------------------------------------
GUARANTOR/PLEDGOR:
XXXXX X. XXXXX
-----------------------------------------------
XXXXX X. XXXXX
Date:
------------------------------------------
PLEDGOR:
NTS FUTURE R. P. CORPORATION
By
---------------------------------------------
X. X. XXXXXXX, CHAIRMAN
Date:
------------------------------------------
17
COMMONWEALTH OF KENTUCKY )
) SS
COUNTY OF JEFFERSON )
The foregoing Modification Agreement was acknowledged before me on
_________, 2002 by Xxxxxxx Xxxx as Senior Vice President of Bank of Louisville
on behalf of the corporation.
My Commission Expires: --------------------------------------------
--------------------------------------------
Notary Public
COMMONWEALTH OF KENTUCKY )
) SS
COUNTY OF JEFFERSON )
The foregoing Modification Agreement was acknowledged before me on
___________, 2002 by X. X. Xxxxxxx as Manager of ORIG, LLC , a limited liability
corporation, on behalf of the corporation.
My Commission Expires:
--------------------------------------------
-------------------------------------------
Notary Public
COMMONWEALTH OF KENTUCKY )
) SS
COUNTY OF JEFFERSON )
The foregoing Modification Agreement was acknowledged before me on
___________, 2002 by X. X. Xxxxxxx as Guarantor.
My Commission Expires:
--------------------------------------------
--------------------------------------------
Notary Public
18
COMMONWEALTH OF KENTUCKY )
) SS
COUNTY OF JEFFERSON )
The foregoing Modification Agreement was acknowledged before me on
___________, 2002 by Xxxxx X. Xxxxx as Guarantor.
My Commission Expires:
--------------------------------------------
--------------------------------------------
Notary Public
COMMONWEALTH OF KENTUCKY )
) SS
COUNTY OF JEFFERSON )
The foregoing Modification Agreement was acknowledged before me on
_________, 2002 by X.X. Xxxxxxx as Chairman of NTS Future R. P. Corporation, on
behalf of the corporation.
My Commission Expires:
--------------------------------------------
--------------------------------------------
Notary Public
This Instrument Prepared By:
Xxxxxxx X. Xxxxxx
Xxxxx Xxxxx Xxxx LLC
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
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Schedule 2
----------
Borrower makes no representation and warranty pursuant to Section 6.03
of the Loan Agreement with respect to the pledge by the Pledgors of their
respective partnership interests in NTS/BBC I and/or NTS/Mall which pledge is
not permitted pursuant to existing loan documents of such partnerships.
20
