When recorded, return to:
Xxx X. Xxxx, Esq.
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
SECOND MODIFICATION AGREEMENT
(Cherokee County)
This SECOND MODIFICATION AGREEMENT ("Agreement") is made as of the 9th
day of April, 2001, by and between COMERICA BANK-TEXAS ("Lender"), a state
banking association, and XXXXXXXXX SIGN COMPANY ("Borrower"), a Texas
corporation.
W I T N E S S E T H :
WHEREAS, Lender made a loan to Borrower on July 31, 1991, in the
maximum principal amount of $9,661,574.00 which, pursuant to that certain
Modification Agreement dated as of September 30, 1998, between lender and
Borrower (the "First Modification"), and certain other documents and
instruments, several separate notes were executed and delivered by Borrower and
made payable to Lender, in an aggregate amount of up to $23,500,000.00; and
WHEREAS, the Borrower executed and delivered that certain Deed of Trust
(as the same may have been heretofore amended, the "Deed of Trust") dated
October 31, 1996 to Xxxx X. Xxx, as trustee (the "Trustee"), for the benefit of
the Lender, recorded in Volume 1322, Page 1, of the Deed of Trust Records of
Cherokee County, Texas, covering the real property described in Exhibit "A"
attached hereto and incorporated herein for all purposes, together with all
improvements, appurtenances, other properties (whether real or personal), rights
and interests described in and encumbered by the Deed of Trust (the "Property"),
to secure the payment of the notes described therein and performance by Borrower
of the other obligations set forth in the Loan Documents (as herein defined);
and
WHEREAS, the Deed of Trust contemplates that other and future debts or
obligations of Borrower to Lender, whensoever or howsoever incurred and of
whatever nature, would be secured by the Deed of Trust; and
WHEREAS, the Lender and Borrower now propose to modify certain of the
terms and provisions of the Loan Agreement (as defined in the Deed of Trust),
the existing notes, the Deed of Trust and the other related documents executed
by Borrower or third parties pertaining to, evidencing or securing the loans to
be made pursuant thereto (collectively, the "Loans") (collectively, the "Loan
Documents").
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lender and Borrower hereby agree as follows:
1. The Loans. As contemplated by the Loan Documents as modified, the
aggregate maximum principal amount of the Loans is TWENTY THREE MILLION AND
NO/100 DOLLARS ($23,000,000.00), although this recital does not mean that
Borrower is entitled to borrow the preceding maximum aggregate principal amount.
The Loans are evidenced by those separate variable rate notes described in (i),
(ii), (iii) and (iv) of Paragraph 2 next following this paragraph (collectively,
the "Notes"), and in some cases, the current outstanding unpaid principal
balance of each Note may be less than the described face amount thereof.
Currently, the aggregate unpaid principal balance of all Notes is less than
TWENTY THREE MILLION AND NO/100 DOLLARS ($23,000,000.00).
2. Promissory Notes. Borrower has executed and delivered to Lender (i)
that certain Third Restated Revolving Credit Note ("Renewal Revolving Note") in
the principal amount of SEVENTEEN MILLION AND NO/100 DOLLARS ($17,000,000.00)
(ii) that certain Term Note A (herein so called) in the original principal
amount of TWO MILLION AND NO/100 DOLLARS ($2,000,000.00), (iii) one or more
notes, each being a Term Note B (herein so called), which in the
SECOND MODIFICATION AGREEMENT (Cherokee County) - Page 1
aggregate at any time as to the total unpaid principal amount of all Term Note B
notes, do not exceed ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) and (iv)
Term Note C (herein so called) in the original principal amount of THREE MILLION
FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($3,500,000.00) (Term Note A and Term
Note C, in part as to Term Note C, represent portions of the existing unpaid
balance of that certain $6,000,000 Term Note referenced in the First
Modification). The Notes shall be in renewal and restatement of the terms and
provisions governing the repayment of the original indebtedness to which they
relate. Term Note A, each note constituting a Term Note B note, and Term Note C
do not entitle Borrower to any additional advances, and are each permanently
reduced by the amount of any principal payments thereunder. Notwithstanding such
renewal and restatement, Borrower acknowledges that the original indebtedness
shall be renewed by and continued in full force and effect (and shall not be
extinguished) in accordance with the terms and conditions of the Notes, and all
of the Notes shall be secured by the liens and security interests of the Loan
Documents as modified herein.
3. Title Insurance. Contemporaneously with the execution and delivery
hereof, the Borrower, at Borrower's sole expense, shall cause Southwestern
Abstract Company to issue to Lender a standard Texas form Mortgagee Policy of
Title Insurance, insuring the dignity and priority of the lien of the Deed of
Trust and Assignment, as modified by the terms and provisions hereof, and
subject only to such exceptions as may have been approved in writing by Lender
at the time of execution hereof.
4. Acknowledgment by Borrower. Except as otherwise specified herein,
the terms and provisions hereof shall in no manner impair, limit, restrict or
otherwise affect the obligations of Borrower or any third party to Lender, as
evidenced by the Loan Documents. Borrower hereby acknowledges, agrees and
represents that (i) Borrower is indebted to Lender pursuant to the terms of the
notes herein described; (ii) the liens, security interests and assignments
created and evidenced by the Loan Documents are, respectively, valid and
subsisting liens, security interests and assignments of the respective dignity
and priority recited in the Loan Documents; (iii) there are no claims or offsets
against, or defenses or counterclaims to, the terms or provisions of the Loan
Documents, and the other obligations created or evidenced by the Loan Documents;
(iv) Borrower has no claims, offsets, defenses or counterclaims arising from any
of Lender's acts or omissions with respect to the Property, the Loan Documents
or Lender's performance under the Loan Documents or with respect to the
Property; (v) giving effect to the Second Amendment to the Second Amended and
Restated Revolving Credit and Term Loan Agreement, dated on or about the date
hereof, between Borrower and Lender (the "Current Amendment"), the
representations and warranties contained in the Loan Documents are true and
correct representations and warranties in all material respects of Borrower and
third parties, as of the date hereof, and Borrower is not in default and no
event has occurred which, with the passage of time, giving of notice, or both,
would constitute a default by Borrower of Borrower's obligations under the terms
and provisions of the Loan Documents. To the extent Borrower now has any claims,
offsets, defenses or counterclaims against Lender or the repayment of all or a
portion of the Loan, whether known or unknown, fixed or contingent, same are
hereby forever irrevocably waived and released in their entirety.
5. Amendment to Deed of Trust. Effective as of the date hereof, all
references to "Notes" in the Deed of Trust shall be references to the Notes as
defined herein, and any and all renewals, modifications, rearrangements,
reinstatements, enlargements, or extensions of the Notes or of any promissory
note or notes given in renewal, substitution or replacement therefor. Any stated
maturity of the Notes contained in the Deed of Trust is hereby amended so that
the maturity of the Renewal Revolving Note is July 1, 2002, and each of the
other Notes is subject to coterminous maturity with the Renewal Revolving Note.
6. No Waiver of Remedies. Except as may be expressly set forth herein,
nothing contained in this Agreement shall prejudice, act as, or be deemed to be
a waiver of any right or remedy available to Lender by reason of the occurrence
or existence of any fact, circumstance or event constituting a default under the
Notes as renewed, increased and extended by the Renewal Notes or the other Loan
Documents.
7. Notices. All notices or other communications required or
permitted to be given pursuant to the Loan Documents or hereto (except for
notice of a foreclosure sale which shall be given in the manner specifically set
forth in the Deed of Trust or by applicable law) shall be in writing and shall
be deemed served and given at the time of (i) deposit in a depository receptacle
SECOND MODIFICATION AGREEMENT (Cherokee County) - Page 2
under the care and custody of the United States Postal Service, properly
addressed to the designated address of the addressee as set forth below, postage
prepaid, registered or certified mail with return receipt requested, (ii)
delivery to the designated address of the addressee set forth below by a third
party commercial delivery service or (iii) receipt at the facsimile or telex
receiving facility of the addressee if transmitted by facsimile or telex
transmission. Notice given in any other manner shall be effective only if and
when received by the addressee. For purposes of notices, the addresses of the
parties shall be as follows:
Lender: Comerica Bank-Texas
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxx
Borrower: Xxxxxxxxx Sign Company
0000 Xxxxxxx 00 Xxxx
Xxxxx, Xxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Either party shall have the right to change its address for notice hereunder and
under the other Loan Documents to any other location within the continental
United States by notice to the other party of such new address at least (30)
days prior to the effective date of such new address.
8. Costs and Expenses. Contemporaneously with the execution and
delivery hereof, Borrower shall pay, or cause to be paid, all reasonable costs
and expenses incident to the preparation, execution and recordation hereof and
the consummation of the transaction contemplated hereby, including, but not
limited to, recording fees, title insurance policy or endorsement premiums or
other charges of the Title Company, and reasonable fees and expenses of legal
counsel to Lender.
9. Additional Documentation. From time to time, Borrower shall execute
or procure and deliver to Lender such other and further documents and
instruments evidencing, securing or pertaining to the Loan or the Loan Documents
as shall be reasonably requested by Lender so as to evidence or effect the terms
and provisions hereof. Upon Lender's request, Borrower shall cause to be
delivered to Lender an opinion of counsel, satisfactory to Lender as to form,
substance and rendering attorney, opining to (i) the validity and enforceability
of this Agreement and the terms and provisions hereof, and any other agreement
executed in connection with the transaction contemplated hereby, (ii) the
authority of Borrower, and any constituents of Borrower, to execute, deliver and
perform its or their respective obligations under the Loan Documents, as hereby
modified, and (iii) such other matters as reasonably requested by Lender.
10. Effectiveness of the Loan Documents. Except as expressly modified
by the terms and provisions hereof, and giving effect to the Current Amendment
and the other Loan Documents modified in connection therewith, each of the terms
and provisions of the Loan Documents are hereby ratified and shall remain in
full force and effect; provided, however, that any reference in any of the Loan
Documents to the Loan, the amount constituting the Loan, any defined terms, or
to any of the other Loan Documents shall be deemed, from and after the date
hereof, to refer to the Loan, the amount constituting the Loan, defined terms
and to such other Loan Documents, as modified hereby.
11. Governing Law. THE TERMS AND PROVISIONS HEREOF SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN.
12. Time. Time is of the essence in the performance of the
covenants contained herein and in the Loan Documents.
13. Binding Agreement. This Agreement shall be binding upon the
successors and assigns of the parties hereto; provided, however, the foregoing
shall not be deemed or construed to (i) permit, sanction, authorize or condone
the assignment of all or any part of the Property or any of Borrower's rights,
titles or interests in and to the Property, except as expressly authorized in
the Loan Documents, or (ii) confer any right, title, benefit, cause of action or
remedy upon any person or entity not a party hereto, which such party would not
or did not otherwise possess.
SECOND MODIFICATION AGREEMENT (Cherokee County) - Page 3
14. Headings. The section headings hereof are inserted for
convenience of reference only and shall in no way alter, amend, define or be
used in the construction or interpretation of the text of such section.
15. Construction. Whenever the context hereof so requires, reference to
the singular shall include the plural and likewise, the plural shall include the
singular; words denoting gender shall be construed to mean the masculine,
feminine or neuter, as appropriate; and specific enumeration shall not exclude
the general, but shall be construed as cumulative of the general recitation.
16. Severability. If any clause or provision of this Agreement is or
should ever be held to be illegal, invalid or unenforceable under any present or
future law applicable to the terms hereof, then and in that event, it is the
intention of the parties hereto that the remainder of this Agreement shall not
be affected thereby, and that in lieu of each such clause or provision of this
Agreement that is illegal, invalid or unenforceable, such clause or provision
shall be judicially construed and interpreted to be as similar in substance and
content to such illegal, invalid or unenforceable clause or provision, as the
context thereof would reasonably suggest, so as to thereafter be legal, valid
and enforceable.
17. Counterparts. To facilitate execution, this Agreement may be
executed in as many counterparts as may be convenient or required. It shall not
be necessary that the signature and acknowledgment of, or on behalf of, each
party, or that the signature and acknowledgment of all persons required to bind
any party, appear on each counterpart. All counterparts shall collectively
constitute a single instrument. It shall not be necessary in making proof of
this Agreement to produce or account for more than a single counterpart
containing the respective signatures and acknowledgment of, or on behalf of,
each of the parties hereto. Any signature and acknowledgment page to any
counterpart may be detached from such counterpart without impairing the legal
effect of the signatures and acknowledgments thereon and thereafter attached to
another counterpart identical thereto except having attached to it additional
signature and acknowledgment pages.
18. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER DOCUMENTS,
IF ANY, HEREIN REQUIRED TO BE EXECUTED REPRESENT THE FINAL AGREEMENT OR
AGREEMENTS BETWEEN THE PARTIES AS TO THE SUBJECT MATTER HEREOF AND THEREOF, AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES. THIS INSTRUMENT MAY BE AMENDED ONLY BY AN INSTRUMENT IN WRITING
EXECUTED BY THE PARTIES HERETO.
EXECUTED as of the date first above written.
LENDER:
COMERICA BANK-TEXAS,
a state banking association
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BORROWER:
XXXXXXXXX SIGN COMPANY,
a Texas corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, Chief Financial Officer
and Secretary
SECOND MODIFICATION AGREEMENT (Cherokee County) - Page 4
EXHIBIT "A"
The Land
SECOND MODIFICATION AGREEMENT (Cherokee County) - Page 5
