EXHIBIT 10.11
SIXTH AMENDMENT TO LOAN DOCUMENTS AND AGREEMENT
THIS SIXTH AMENDMENT TO LOAN DOCUMENTS AND AGREEMENT ("Agreement") is made
and entered into effective April 14, 2004, (the "Effective Date") by and between
AmSouth Bank (hereinafter referred to as "AmSouth"), TBA Entertainment
Corporation, a Delaware corporation (herein referred to as "TBA"), and its
wholly-owned subsidiaries, TBA Entertainment Group Nashville, Inc., a Tennessee
corporation ("TBAN"), TBA Entertainment Group Chicago, Inc., a Delaware
corporation ("TBAC"), TBA Entertainment Group Phoenix, Inc., an Arizona
corporation ("TBAP"), TBA Entertainment Holding Corporation, a Delaware
corporation ("TBAH"), Titley Spalding & Associates, LLC, a Tennessee limited
liability company ("TS&A"), TKS Marketing, Inc., a Tennessee corporation
("TKS"), Xxxx Xxxxxx Management, Inc., a Tennessee corporation ("Xxxxxx"), Romeo
Entertainment Group, Inc., a Nebraska corporation ("Romeo"), EJD Concert
Services, Inc., an Oregon corporation ("EJD"), Xxxxx Entertainment, Inc., a
Tennessee corporation ("Xxxxx"), TBA Merchandising, Inc., an Indiana corporation
("TBAM"), and Alliance Artists, Ltd., a Georgia corporation ("Alliance") (TBAN,
TBAC, TBAP, TBAH, TS&A, TKS, Xxxxxx, Xxxxx, EJD, Xxxxx, TBAM and Alliance being
sometimes referred to herein individually as a "Guarantor" and, when referring
to two or more, as "Guarantors," and TBA and all of its Guarantors being
sometimes referred to herein collectively as the "Debtors," whether in their
capacity as a Borrower, Guarantor, Pledgor, Subsidiary or otherwise, as defined
in the Loan Documents referred to below),
W I T N E S S E T H:
WHEREAS, pursuant to the terms of a Loan and Security Agreement dated as
of October 10, 2001 (the Loan and Security Agreement dated as of October 10,
2001, as amended by the First Amendment, Second Amendment, Third Amendment,
Fourth Amendment, Fifth Amendment, all as defined herein, and this Sixth
Amendment, as further amended, modified, and extended is referred to herein as
the "Loan Agreement"), AmSouth agreed to provide to TBA the loans described
therein, to consist of a revolving line of credit and a non-revolving term loan;
and
WHEREAS, on or about October 10, 2001, the transaction contemplated by the
Loan Agreement was closed, and incident thereto, among other things,
(a) TBA executed and delivered to AmSouth that certain Line of Credit
Promissory Note dated October 10, 2001, in the original principal
amount of Three Million Dollars ($3,000,000.00), and maturing June
30, 2003 (the Line of Credit Promissory Note dated October 10, 2001,
as amended by that Renewal Line of Credit Promissory Note dated
April 10, 2003, as amended by that Replacement and Extended Line of
Credit Promissory Note executed by TBA of even date herewith, as
further amended, modified, and extended, is referred to herein as
the "Working Capital Note");
(b) TBA executed and delivered to AmSouth that certain Term Promissory
Note dated October 10, 2001, in the original principal amount of One
Million Fifty
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Thousand Dollars ($1,050,000.00), and maturing September 30, 2003
(the "Term Note"), which Term Note has been paid in full;
(c) The Guarantors executed and delivered their Guaranty and Suretyship
Agreement dated as of October 10, 2001 (the "Guaranty") in favor of
AmSouth;
WHEREAS, Debtors subsequently represented to AmSouth that because of their
financial conditions, they were unable to pay the full amount of their liability
for the indebtedness arising under the Working Capital Note and the Term Note,
and the parties entered into a Waiver, Modification and Security Agreement dated
as of April 10, 2002 as amended (the "Waiver Agreement") in order to induce
AmSouth to forbear from exercising its remedies following default;
WHEREAS, in order to accommodate the agreement between AmSouth and Debtors
pursuant to the Waiver Agreement, the parties executed the First Amendment to
Loan Documents and Agreement dated as of May 2, 2002 (the "First Amendment"),
incident to which First Amendment the Debtors executed, among other things, a
$500,000.00 Note payable to AmSouth (the "New Senior Loan"), which New Senior
Loan has been paid in full;
WHEREAS, Debtors subsequently represented to AmSouth that because of their
financial conditions, they were unable to pay the full amount of their liability
for the indebtedness arising under the Working Capital Note, and the parties
entered into a Second Amendment to Loan Documents and Agreement dated effective
April 10, 2003 (the "Second Amendment") in order to induce AmSouth to forbear
from exercising its remedies following default;
WHEREAS, pursuant to the terms of the Second Amendment, the Debtors
executed a Renewal Line of Credit Promissory Note dated April 10, 2003 in the
principal amount of $3,000,000.00, pursuant to which the Debtors agreed to make
monthly payments of principal and interest to AmSouth until the extended
maturity date of April 30, 2004 (the "Maturity Date"), and TBA issued to AmSouth
two (2) warrants to purchase Common Stock of TBA (the "Warrants");
WHEREAS, Debtors subsequently represented to AmSouth that because of their
financial conditions, they were unable to pay the full amount of the
Indebtedness (defined below) arising under the Working Capital Note, and the
parties entered into a Third Amendment to Loan Documents and Agreement dated
effective November 14, 2003 (the "Third Amendment") in order to induce AmSouth
to forbear from exercising its remedies upon default and to provide for the
restructure of payments due under the Working Capital Note;
WHEREAS, Debtors and AmSouth subsequently executed a Fourth Amendment to
Loan Documents and Agreement dated January 30, 2004 (the "Fourth Amendment"),
pursuant to which the parties agreed, among other things, to increase the
principal payments due under the Working Capital Note and to modify the Maturity
Date, and a Fifth Amendment to Loan Documents and Agreement dated March 31, 2004
(the "Fifth Amendment") pursuant to which the parties agreed, among other
things, to extend the Maturity Date of the Working Capital Note to April 14,
2004.
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WHEREAS, as of April 14, 2004, TBA is indebted to AmSouth under the
Working Capital Note, and all extensions and amendments thereto, in the
principal amount of $2,560,122.13, plus accrued interest, late fees, costs and
attorneys' fees;
WHEREAS, AmSouth shall not make any more advances to TBA pursuant to the
Working Capital Note;
WHEREAS, the indebtedness evidenced and secured by the Working Capital
Note, the Loan Agreement, the Guaranty, the Waiver Agreement, and all amendments
thereto, and all other documents evidencing, securing, or relating to all
transactions referred to herein (herein referred to collectively as the "Loan
Documents"), including accrued costs, late fees, attorneys' fees and interest,
is herein referred to collectively as the "Indebtedness";
WHEREAS, the Indebtedness is fully enforceable and is not subject to any
defense or counterclaim, or any claim of setoff or recoupment;
WHEREAS, the Debtors are presently in default of the Indebtedness and
their respective obligations arising under the Loan Documents and Debtors have
again represented to AmSouth that because of their financial conditions, they
are unable to pay the full amount of their liability for the Indebtedness;
WHEREAS, the Debtors have represented to AmSouth that they have executed a
Merger Agreement dated April 8, 2004 by and among TBA, TBA Holdings, LLC, an
entity controlled by Xxxxxx Xxxxx, Xxxxxx Xxxxxx and JHW Greentree Capital, L.P.
("Purchaser"), and TBA Merger Sub, Inc., a wholly owned subsidiary of Purchaser
(the "Merger Agreement"), pursuant to which Merger Agreement the Purchaser, on
the date of Closing, as defined in the Merger Agreement, (a duly executed copy
of which has been provided to AmSouth, prior to execution of this Sixth
Amendment), shall acquire all of the capital stock of TBA ;
WHEREAS, the parties hereto discussed a Forbearance Term Sheet issued in
April 2004 and AmSouth has agreed to temporarily forbear from exercising its
remedies upon default subject to the terms and conditions herein set forth;
WHEREAS, each of the parties acknowledges that it has been represented by
counsel in connection with the negotiation and execution of this Agreement, that
the same represents an arms-length transaction and that each of the other
parties has acted in good faith in the making of this Agreement;
WHEREAS, all terms capitalized herein, but not specially defined herein,
are intended to have the meanings ascribed to them in the Loan Agreement, unless
the context clearly indicates otherwise;
WHEREAS, the parties stipulate and agree that the facts recited
hereinabove are true and correct; and
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WHEREAS, the parties have agreed to modify the Indebtedness, and Loan
Documents, and have otherwise agreed all as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the foregoing recitals (all of
which are incorporated herein as agreements, representations, warranties or
covenants of the Debtors), of the mutual covenants and promises contained
herein, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereby covenant, amend and agree as follows:
1. In regard to the Working Capital Note, the parties agree that Section
2.1 of the Loan Agreement is deleted and the following is substituted instead:
2.1 The Working Capital Note.
(a) In place of the Renewal Line of Credit Promissory Note, which
replaced the original October 10, 2001 Line of Credit Promissory Note,
which Working Capital Note is presently in default, TBA shall execute and
deliver to AmSouth a Replacement and Extended Line of Credit Promissory
Note dated April 14, 2004 payable to AmSouth in the principal amount of
$2,560,122.13, and in form and substance required by AmSouth (the
"Replacement Promissory Note"), which shall be governed by the following
terms:
(i) The Replacement Promissory Note shall mature on the
earlier of March 31, 2005 (the "Maturity Date") or upon the
occurrence of a Termination Event, as defined in Section 11 of this
Agreement.
(ii) Interest shall continue to accrue, from and after April
1, 2004, at the annual rate equal to the interest rate designated from time to
time by Bank as its "Prime Rate," which rate shall be adjusted on each day that
said Prime Rate changes, plus one percent (1.00%). After maturity or default,
interest shall accrue at a default rate equal to the lesser of AmSouth's Prime
Rate plus four percentage points (4%) or the highest lawful rate then in effect
pursuant to applicable law.
(iii) TBA shall make monthly payments of principal and
interest payable as follows:
(aa) Commencing on the thirtieth (30th) day of April,
2004, and on the like day of each succeeding month thereafter
until final maturity, monthly payments of interest only shall
be due and payable.
(bb) Commencing on the thirtieth (30th) day of June,
2004, and on the like day of each succeeding month until final
maturity, monthly payments of principal in the amount of
$55,000.00 shall be due and payable. In addition to the
monthly payments of principal due pursuant to this paragraph,
in the event that, in any quarter during the term of the Note,
Borrower's actual EBITDA exceeds Quarterly EBITDA Projections,
as defined below, for Borrower's quarters ending June 30,
2004, September 30,
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2004 and December 31, 2004, then prepaid principal payments
equal to sixty percent (60%) of the total amount that
Borrower's actual EBITDA exceeds Quarterly EBITDA Projections
shall be due and payable. Such mandatory principal prepayments
shall be due and payable on the following dates: August 13,
2004, as to the quarter ending June 30, 2004; November 12,
2004, as to the quarter ending September 30, 2004 and February
15, 2005 as to the quarter ending December 31, 2004.
"Quarterly EBITDA Projections" are as follows: $349,949.00 for
quarter ending June 30, 2004; $1,654,482.00 for quarter ending
September 30, 2004; and $18,372.00 for quarter ending December
31, 2004.
(cc) The entire unpaid principal and all accrued
interest and other charges shall be due and payable on March
31, 2005 (the "Maturity Date").
(b) Section 1 of the Loan Agreement is hereby amended as follows:
"Notes" means the Working Capital Note, as defined in this Sixth
Amendment, and all further modifications, extensions, and amendments to
the Working Capital Note. "Loan Documents" means the Working Capital Note,
as defined in this Sixth Amendment, the Loan Agreement, the Guaranty, the
Waiver Agreement and all amendments thereto, and all other documents
evidencing, securing, or relating to all transactions referred to herein.
(c) Section 2.2 of the Loan Agreement is hereby deleted. Section 2.3
of the Loan Agreement is modified to state that Debtors shall pay to
AmSouth a nonrefundable extension fee in the amount of $24,000.00 due on
April 14, 2004.
(d) Sections 2.4, 2.5, 2.6 and 2.7 of the Loan Agreement are hereby
deleted.
(e) Section 3.2 of the Loan Agreement is hereby deleted and the
following is substituted instead:
3.2 Requirements for Subsequent Advances. There shall be no
additional sums advanced under the Working Capital Note.
2. The Debtors hereby warrant, represent and affirm to AmSouth that all of
the representations and warranties set forth in Section 5 of the Loan Agreement
(except for Sections 5.6 and 5.14 as same pertain to the two (2) lawsuits
referenced in Section 6 of this Sixth Amendment) as amended and expanded
pursuant to the First Amendment, and as amended and expanded pursuant to Section
4 of the Second Amendment are correct as of the Effective Date and that all of
the statements contained in the preamble to this Agreement are true and
accurate. All representations and warranties made by Debtors to AmSouth under
the Loan Documents and this Agreement and all other agreements entered into by
the parties subsequent to this Agreement shall remain true and correct
throughout the term of this Agreement.
3. The Debtors do hereby affirm all covenants set forth in Section 6 of
the Loan Agreement, as amended, and the additional affirmative covenants set
forth in Section 3 (a) through (d) of the Second Amendment, except that the
parties do further hereby amend Section 6
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of the Loan Agreement by deleting Section 6.9 in its entirety and by
substituting the following language in its stead:
6.9 Payment of Funded Debt. During the term of this Agreement, the
Debtors are hereby prohibited from making any payments of principal toward
any Funded Debt (whether direct or indirect, including Guarantee
Obligations), due any Person, without first obtaining the prior written
consent of AmSouth. However, Debtors are permitted to make all scheduled
debt payments arising under certain seller notes as itemized in Exhibit A
(the "Seller Notes") attached hereto and paid in accordance with payment
amounts for the Seller Notes appearing on the TBA 2004 Cash Flow
Projections attached hereto as Exhibit B. During the term of this
Agreement, the Debtors are hereby prohibited from making any additional
payments of principal which exceed the principal payment amounts as shown
on Exhibit B toward the Seller Notes, without first obtaining the prior
written consent of AmSouth.
Additionally, Debtors expressly acknowledge that they are presently in
default of the covenants set forth in Section 6.13 of the Loan Agreement, as
amended, and in Section 3 (e) of the Second Amendment, and in Section 2 of the
Third Amendment and Fourth Amendment. Provided that there is no other default
hereunder, and provided further that Debtors covenant that TBA will achieve at
least eighty-five percent (85%) of projected year to date EBITDA, as set forth
on Exhibit B to this Amendment, tested quarterly, AmSouth temporarily waives
such default under Section 6.13 of the Loan Agreement, Section 3 (e) of the
Second Amendment and in Sections 2 of the Third Amendment and Fourth Amendment,
all as amended herein. Accordingly, the Debtors expressly covenant that TBA will
achieve at least eighty-five percent (85%) of projected year to date EBITDA, as
set forth on Exhibit B to this Amendment, projected quarterly.
4. In regard to the issuance of the Warrants, TBA and all Debtors
acknowledge and agree that the Warrants remain in full force and effect in
accordance with the terms of the Warrants, and Debtors expressly affirm the
additional affirmative covenants regarding the Warrants as set forth in Section
3(f) of the Second Amendment. Additionally, at the Closing as defined in Merger
Agreement, AmSouth will surrender, cancel and return to TBA the TBA
Entertainment Corporation Warrant to Purchase Common Stock, Number of Shares
177,645, issued on April 10, 2003 (the "Market Warrant") without payment to
AmSouth thereunder. Additionally, at the Closing as defined in the Merger
Agreement, TBA will pay to AmSouth in satisfaction of the TBA Entertainment
Corporation Warrant to Purchase Common Stock, Number of Shares to be Determined,
issued on April 10, 2003 (the "Xxxxx Warrant"), the amount determined under
Section 2.05 of the Merger Agreement (which amount the Debtors represent shall
be approximately Eighty-Two Thousand Five Hundred and No/100 ($82,500.00). Upon
receipt of such sum AmSouth will surrender and return to TBA the Xxxxx Warrant
for cancellation. The representation of Debtors hereunder shall survive the term
of this Sixth Amendment.
5. Debtors further covenant and agree that, upon execution of this
Agreement, they will cause to be paid all of the fees and expenses incurred by
AmSouth, its agents, attorneys, accountants, appraisers, employees and
representatives, pursuant to all actions contemplated by
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the Loan Documents no later than ten (10) days after presentment of invoices for
such fees and expenses to Debtors by AmSouth. Failure of Debtors to timely pay
such invoices shall constitute a default hereunder.
6. The negative covenants set forth in Sections numbered 7.1, 7.2, and 7.4
as same appear in Section 7 of the Loan Agreement, and Section numbered 1 (l) of
the First Amendment are hereby deleted and the following negative covenants are
inserted instead:
7.1 Merger, Reorganization or Acquisition. AmSouth
acknowledges that it has received a copy of the fully executed Merger
Agreement and consents to all actions by Debtors as set forth therein.
However, neither TBA nor any other Debtor shall agree to modify the terms
of the Merger Agreement in any way whatsoever, without first obtaining the
prior written consent of AmSouth which may be withheld in AmSouth's sole
discretion. Furthermore, during the term of this Agreement, neither TBA
nor any Debtor shall enter into any other merger, consolidation,
reorganization or recapitalization or engage in any Acquisition (as
defined in the Loan Agreement) whatsoever.
7.2 Sale of Assets. Except for the transactions contemplated
by the Merger Agreement, neither TBA nor any other Debtor, other than TBAM
will sell, transfer, lease or otherwise dispose of all or any material
part of its assets; provided, however, TBA and Guarantors may, in the
ordinary course of business, replace damaged, obsolete or worn equipment
with equipment of similar value and use and TBAM may sell all or any
portion of its assets, in which event AmSouth agrees to release TBAM from
the Guaranty and this Agreement and release any security interests it has
with respect to any assets of TBAM, upon consummation of any such TBAM
sale.
7.4 Debts and Other Obligations. Neither TBA nor any Debtor will
incur, create or assume, or permit to exist any Funded Debt, or any
additional debt, except for trade debt incurred in the ordinary course of
business.
Sections numbered 7.3, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10, 7.11, 7.12, 7.13,
7.14, 7.15, and 7.16 as same appear in Section 7 of the Loan Agreement, as
amended pursuant to the terms of the First Amendment, and as confirmed in
Section 5 of the Second Amendment, in Section 6 of the Third Amendment and in
Sections 3 of the Fourth and Fifth Amendments shall continue in full force and
effect and all statements and covenants as set forth therein are affirmed by
Debtors and shall remain true and correct throughout the term of this Agreement.
In addition to the Negative Covenants set forth in Section 7 of the Loan
Agreement, as amended, the parties further amend Section 7 to include the
following additional negative covenants:
7.17. Change of Management. During the term of this Agreement,
there shall be no change of management of any Debtor.
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7.18 Additional Defaults. During the term of this Agreement, Debtors
shall not be in default of any of their obligations to any other person or
entity, if the effect of such default would, in AmSouth's sole discretion,
impair AmSouth's position or any Debtors' ability to operate.
7.19 Lawsuits. During the term of this Agreement, there shall be no
lawsuit filed by any owner or holder of a debt, except for (i) the case
styled Xxxxxx Xxxxxxxx v. TBA Entertainment Corporation, No. 03 L 10196,
Circuit Court of Xxxx County, Illinois, in which judgment has been
obtained and TBA is presently satisfying pursuant to the terms of the
Fourth Amendment; and (ii) the case styled Xxxxxxx X. Xxxxx ("Xxxxx") v.
TBA Entertainment Corporation, Circuit Court of Xxxx County, Illinois, in
which Debtors expressly represent to AmSouth, that Xxxxx has expressly
agreed with TBA to modify and extend the debt owed to him under said Note
until March 31, 2005, pursuant to the terms of a Letter to Xx. Xxxxxxx X.
Xxxxx from Xxxxxx Xxxxxxx Xxxxxx III dated March 30, 2004, a copy of which
Letter is attached hereto as Exhibit C.
7. All indebtedness and obligations now or hereafter owing to AmSouth by
TBA or any other of the Debtors, or any combination thereof, including but not
limited to the Indebtedness, whether evidenced by the Working Capital Note,
shall be guaranteed by all of Debtors. The Guaranty shall continue in full force
and effect and the Debtors hereby ratify and reaffirm all of the terms and
conditions set forth in the Loan Documents on which they are signatories. The
Debtors and Guarantors hereby consent to the terms and conditions of this
Agreement and reaffirm and agree that their obligations as co-makers and/or
guarantors with respect to the Existing Indebtedness continue and extend to the
Working Capital Note, as amended hereunder, and to all future renewals,
extensions, replacements, amendments and modifications thereof.
8. The Debtors reaffirm that all property, rights and interest of any,
some or all of Debtors which now or hereafter serve as collateral security for
any of the Indebtedness, shall hereafter secure all indebtedness and obligations
now or hereafter owing by TBA, or any other of the Debtors to AmSouth, whether
now existing or hereafter arising, including but not limited to the
Indebtedness, and all renewals, extensions, replacements and modifications
thereof, in accordance with Section 6 of the Second Amendment.
9. A default in any of the Loan Documents, this Agreement, any additional
instruments and documents executed pursuant hereto, or in any indebtedness or
obligation now or hereafter owing by any, some or all of Debtors to AmSouth,
shall, at the option of AmSouth, constitute a default in any or all of the Loan
Documents or indebtedness now or hereafter owing by any, some or all of the
Debtors to AmSouth.
10. The following events shall each be considered a "Termination Event"
under the terms of this Agreement:
(a) March 31, 2005.
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(b) Debtors, or any of them, except that TBAM is expressly excluded
from this provision, become a debtor in bankruptcy by means of either a
voluntary or involuntary petition.
(c) Any kind of receivership or insolvency proceeding is commenced
by or against Debtors, except TBAM.
(d) The Closing, as defined in the Merger Agreement, occurs.
(e) A Change of Control, as defined in the Loan Agreement, occurs.
(f) A default by any of the Debtors of any of the representation,
warranties, covenant or obligation set forth herein.
11. The Debtors acknowledge and agree (a) that all current and future
subsidiary corporations, limited liability companies and other entities of any
of Debtors shall execute and deliver Guaranty and Suretyship Agreements
guaranteeing all indebtedness and obligations, whether now existing or hereafter
arising, of any, some, or all of Debtors, to AmSouth, immediately upon formation
or acquisition of any future subsidiary, and (b) that the capital stock or other
ownership interest in all future subsidiaries of any of Debtors shall be pledged
and a security interest therein shall be granted, to AmSouth as security for all
indebtedness, whether now existing or hereafter arising, of any, some or all of
Debtors, to AmSouth, immediately upon formation or acquisition of any such
subsidiary. Debtors shall give ten (10) days advance written notice to AmSouth
of the creation of any future subsidiary, provided that in an emergency
situation where advance notice cannot practicably be given, notice shall not be
required provided AmSouth is given an immediate pledge and security interest in
the ownership interest in the new entity and an immediate Guaranty and
Suretyship Agreement by the entity as set forth herein.
12. The Loan and Security Agreement, the First Amendment to Loan Documents
and Agreement and any other Loan Documents affected hereby, are amended to the
extent necessary to conform such instruments and documents to the provisions set
forth herein.
13. This Agreement shall not constitute a novation, discharge or
satisfaction of any of the Loan Documents or any part thereof, and the Loan
Documents shall remain in full force and effect subject only to AmSouth's
agreement to forbear as set forth herein. Debtors hereby ratify and reaffirm all
of the terms and conditions set forth in the Loan Documents on which they are
signatories. The Guarantors hereby consent to the terms and conditions of this
Agreement and reaffirm and agree that their obligations as co-makers and/or
guarantors with respect to the Existing Indebtedness continue and extend to the
Working Capital Note, as amended hereunder, and to all future renewals,
extensions, replacements, amendments and modifications thereof.
14. Debtors shall execute such further and additional instruments and
documents, and take such further actions, as may be required by AmSouth or its
counsel from time to time to further evidence, perfect or carry out the terms
and provisions hereof. Debtor shall pay all costs and expenses of AmSouth
incurred in connection with the documentation, perfection or implementation of
the provisions hereof, including but not limited to attorney fees, filing fees,
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UCC search and examination fees and out of pocket expenses. All such known
expenses shall be paid immediately upon the execution hereof. Additional
expenses shall be paid upon presentation of statements therefore by AmSouth. The
representations, covenants, warranties and other provisions set forth in the
Loan Documents made by any, some or all of Debtors, as amended hereby, shall
continue in full force and effect and shall be fully enforceable in accordance
with all of their terms.
15. Debtors hereby acknowledge and stipulate that none of them has any
claims or causes of action against AmSouth, or against the officers, directors,
employees, representatives, agents, attorneys, accountants, or consultants of
AmSouth of any kind whatsoever. Debtors hereby release AmSouth officers,
directors, employees, representatives, agents, attorneys, accountants, and
consultants of AmSouth from any and all claims, causes of action, demands and
liabilities of any kind whatsoever, whether direct or indirect, fixed or
contingent, liquidated or non-liquidated, disputed or undisputed, known or
unknown, which Debtors, or any of them, has or which arises out of any acts or
omissions occurring prior to the execution of this Agreement relating in any way
to any event, circumstances, action or failure to act from the beginning of time
to the execution of this Agreement.
16. This Agreement contains the entire agreement of the parties with
respect to the subject matter hereof and may not be amended or modified except
by an agreement in writing executed between the parties hereto except as such
may be preempted by law or regulation of the United States of America governing
the charging or receiving of interest. This Agreement shall be governed and
interpreted under, and construed in accordance with, the internal substantive
laws (and not the laws of conflicts) of the State of Tennessee. The parties
hereto hereby grant exclusive jurisdiction to the federal District Court of the
Middle District of Tennessee or the Chancery and Circuit Courts of the State of
Tennessee, located in Davidson County to decide all claims, disputes, and other
matters in question arising out of or relating to this Agreement or any
documents related to or contemplated by this Agreement, the Loan Documents or
the Renewal Promissory Note, or the breach thereof. This agreement is severable
such that the invalidity or unenforceability of any provision hereof shall not
impair the validity or enforceability of the remaining provisions. Time is of
the essence of this Agreement, and all its provisions. This Agreement shall be
binding upon the parties hereto, their successors and assigns. This Agreement
may be executed in multiple counterparts, which when taken as a whole shall
constitute a complete instrument. Facsimile signatures shall be effective as
originals.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
dates indicated below, to be effective April 14, 2004.
Date: April 14, 2004 AMSOUTH BANK
By: /s/ Xxx XxXxxxxx
-------------------
Xxx XxXxxxxx,
Vice President
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Date: April 14, 2004 TBA ENTERTAINMENT CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx Xxxxxx III
--------------------------------
Title: Chairman
Date: April 14, 2004 TBA ENTERTAINMENT GROUP NASHVILLE, INC.,
a Tennessee corporation
By: /s/ Xxxxxx Xxxxxxx Xxxxxx III
--------------------------------
Title: Chairman
Date: April 14, 2004 TBA ENTERTAINMENT GROUP CHICAGO, INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx Xxxxxx III
--------------------------------
Title: Chairman
Date: April 14, 2004 TBA ENTERTAINMENT GROUP PHOENIX, INC.,
an Arizona corporation
By: /s/ Xxxxxx Xxxxxxx Xxxxxx III
--------------------------------
Title: Chairman
Date: April 14, 2004 TBA ENTERTAINMENT HOLDING CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx Xxxxxx III
--------------------------------
Title: Chairman
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Date: April 14, 2004 TITLEY SPALDING & ASSOCIATES, LLC,
a Tennessee limited liability company
By: /s/ Xxxxxx Xxxxxxx Xxxxxx III
--------------------------------
Title: Authorized Manager
Date: April 14, 2004 TKS MARKETING, INC.,
a Tennessee corporation
By: /s/ Xxxxxx Xxxxxxx Xxxxxx III
--------------------------------
Title: Chairman
Date: April 14, 2004 XXXX XXXXXX MANAGEMENT, INC.,
a Tennessee corporation
By: /s/ Xxxxxx Xxxxxxx Xxxxxx III
--------------------------------
Title: Chairman
Date: April 14, 2004 ROMEO ENTERTAINMENT GROUP, INC.,
a Nebraska corporation
By: /s/ Xxxxxx Xxxxxxx Xxxxxx III
--------------------------------
Title: Chairman
Date: Xxxxx 00, 0000 XXX CONCERT SERVICES, INC.,
an Oregon corporation
By: /s/ Xxxxxx Xxxxxxx Xxxxxx III
--------------------------------
Title: Chairman
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Date: April 14, 2004 XXXXX ENTERTAINMENT, INC.,
a Tennessee corporation
By: /s/ Xxxxxx Xxxxxxx Xxxxxx III
--------------------------------
Title: Chairman
Date: April 14, 2004 TBA MERCHANDISING, INC.,
an Indiana corporation
By: /s/ Xxxxxx Xxxxxxx Xxxxxx III
--------------------------------
Title: Chairman
Date: April 14, 2004 ALLIANCE ARTISTS, LTD.,
a Georgia corporation
By: /s/ Xxxxxx Xxxxxxx Xxxxxx III
--------------------------------
Title: Chairman
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EXHIBIT A
(LIST OF SELLER NOTES)
Dallas Acquisition Notes
Xxx Xxx
Xxxx Xxxx
Chicago Acquisition Notes:
Xxxx Xxxxx
Xxxx Xxxxx
Xxx Xxxxxxxx
Xxxxxx Acquisition Note
Titley- 99 Acquisition Note (Required payments in April 2004 totaling
$105,000.00)
Titley-00 Acquisition Note
Titley- 01 Acquisition Note
Titley-03 Acquisition Note
TKS-99 Acquisition Note
TKS-00 Acquisition Note
TKS-01 Acquisition Note
Romeo Acquisition Note #1 *These need to be paid.
Romeo Acquisition Note #2
14
EXHIBIT B
CASH FLOW PROJECTIONS
15
EXHIBIT C
COPY OF LETTER FROM XX. XXXXXX TO XX. XXXXX DATED MARCH 30, 2004
16
