EXHIBIT 10.145
--------------
JOINDER AND FORBEARANCE AGREEMENT
---------------------------------
This Joinder and Forbearance Agreement (as the same may hereafter from
time to time be amended, supplemented, or otherwise modified, the "Agreement")
is made and dated as of this 26th day of September, 2000, by and among DISPLAY
TECHNOLOGIES, INC., a Nevada corporation ("Display"), AD ART ELECTRONIC SIGN
CORPORATION, a Florida corporation ("Ad Art"), CERTIFIED MAINTENANCE SERVICE,
INC., a Florida corporation, XXX XXXX INDUSTRIES, INC., a Florida corporation
("Xxx Xxxx"), X.X. XXXXXXX MANUFACTURING, INC., a Florida corporation, LA-MAN
CORPORATION, a Nevada corporation ("La-Man"), X.X. XXXXXXX CORPORATION, a
Florida corporation, X.X. XXXXXXX INDUSTRIES, INC., a Florida corporation,
VISION TRUST MARKETING, INC., a Florida corporation, XXXXXXXX SIGN GROUP, INC.,
a Florida corporation ("Xxxxxxxx") (collectively, the foregoing entities shall
be referred to as the "Original Borrowers"), XXXXXXXX DIGITAL DESIGNS, LTD., an
Ontario (Canada) corporation ("Hamilton" and, together with the Original
Borrowers, the "Borrowers"), and SOUTHTRUST BANK, a bank chartered under the
laws of the State of Alabama and formerly doing business as SouthTrust Bank,
National Association ("SouthTrust" or the "Bank").
W I T N E S S E T H:
--------------------
A. Pursuant to that Loan and Security Agreement dated as of June 2,
1999 (the "Original Loan Agreement"), as amended by Amendment No. 1 to Loan and
Security Agreement dated March 3, 2000 by and among the Bank and the Original
Borrowers (the "Amendment" and, together with the Original Loan Agreement, the
"Loan Agreement"), the Bank has extended the following credit facilities to the
Original Borrowers:
1. A revolving loan in the maximum principal amount of
$23,000,000.00 (the "Revolving Loan"), evidenced by that certain
Amended and Restated Revolving Loan Promissory Note dated March 3, 2000
in the maximum principal amount of $23,000,000.00 made by the Original
Borrowers to the order to SouthTrust (the "Revolving Note"). The
Revolving Loan originally was limited to the maximum principal amount
of $10,000,000.00 pursuant to that certain Loan and Security Agreement
by and between Display Technologies, as Borrower, and SouthTrust, dated
as of June 2, 1999 and that certain Revolving Loan Promissory Note
dated June 2, 1999 in principal amount of $10,000,000, but was
subsequently increased in March 2000 to a maximum principal amount of
$23,000,000.00 pursuant to the Amendment;
2. A term loan in the original principal amount of
$1,000,000.00 (the "Term Loan"), evidenced by that certain Term
Promissory Note dated June 2, 1999 in the original principal amount of
$1,000,000.00 made by Borrowers to the order of SouthTrust (the "Term
Note");
1
3. Irrevocable Letter of Credit # SB-1326 in amount of up to
$2,500,000.00 dated August 1, 1997 issued by SouthTrust for the account
of the Original Borrowers (the "1997 Letter of Credit"), securing
$2,500,000.00 of Display's Variable/Fixed Rate Credit Enhanced Notes
(the "1997 Demand Notes") issued pursuant to that certain Trust
Indenture dated as of August 1, 1997; and
4. Irrevocable Letter of Credit # SB2128 in amount of up to
$2,546,028.00 dated June 17, 1999 issued by SouthTrust for the account
of the Original Borrowers (the "1999 Letter of Credit"), securing
$2,500,000 of Display's Variable/Fixed Rate Credit Enhanced Notes (the
"1999 Demand Notes") issued pursuant to that certain Trust Indenture
dated as of June 2, 1999
(collectively, the "Loans"). Capitalized terms used but not defined herein shall
have the same meanings assigned to such terms in the Loan Agreement.
B. Pursuant to the Loan Agreement, each of the Original Borrowers has
granted the Bank, as security for the Loans, a first-priority security interest
in all of the Original Borrowers' Accounts, Documents, Instruments, Chattel
Paper, General Intangibles, Equipment, Inventory, and the proceeds thereof (the
"Personal Property Collateral").
C. As additional security for the Loans, Ad Art executed and delivered
to SouthTrust that certain Deed of Trust, Absolute Assignment of Leases and
Rents, Security Agreement and Fixture Filing dated June 22, 1999 executed by Ad
Art Electronic Sign Corporation, as Trustor, to Commonwealth Land Title
Insurance Company, as Trustee, for benefit of SouthTrust, as beneficiary, and
recorded on June 21, 1999 at 99080018 in Office of County Clerk of San Joacquin
County, California (the "Ad Art Deed of Trust"), pursuant to which Ad Art
granted SouthTrust a first mortgage lien on certain real property located in or
around Stockton, California (the "Ad-Art Mortgaged Property").
D. As additional security for the Loans, La-Man and Xxx Xxxx Industries
executed and delivered to SouthTrust that certain Real Estate Mortgage and
Security Agreement dated August 1, 1997 and recorded at Book 4230, Page 4153 on
September 2, 1997 in the office of the Clerk of Court of Volusia County, Florida
(the "La-Man/Xxx Xxxx Mortgage"), pursuant to which La-Man and Xxx Xxxx granted
SouthTrust a first mortgage lien on certain real property located in Port
Orange, Volusia County, Florida (the "La-Man/Xxx Xxxx Mortgaged Property").
E. As additional security for the Term Loan, Display executed and
delivered to SouthTrust that certain Mortgage and Security Agreement dated June
2, 1999 executed by Display in favor of SouthTrust and recorded on June 21, 1999
at Book 4447, Page 3893 in the office of the Clerk of Court of Volusia County,
Florida (the "Display Mortgage"), pursuant to which Display granted SouthTrust a
first mortgage lien on certain real property located in Volusia County, Florida
(the "Display Mortgaged Property").
2
F. As additional security for the Loans, Display and La-Man executed
and delivered to the Bank that certain Trademark Collateral Assignment dated
June 2, 1999 (the "Display/La-Man Trademark Assignment"), pursuant to which
Display and La-Man granted the Bank first-priority liens and security interests
on certain trademarks and other intellectual property rights of the companies
(collectively, the collateral described therein shall be referred to as the
"Display/La-Man Trademarks").
G. As additional security for the Loans, Display and Ad Art executed
and delivered to the Bank that certain Trademark Collateral Assignment dated
June 2, 1999 (the "Display/Ad Art Trademark Assignment"), pursuant to which
Display and Ad Art granted the Bank first-priority liens and security interests
on certain trademarks and other intellectual property rights of the companies
(collectively, the collateral described therein shall be referred to as the
"Display/Ad Art Trademarks").
H. As additional security for the Loans, Display and La-Man executed
and delivered to the Bank that certain Patent Collateral Assignment dated June
2, 1999, which document was duly recorded with the U.S. Patent and Trademark
Office in or around June 1999 (the "Patent Assignment"), pursuant to which
Display and La-Man granted the Bank first-priority liens and security interests
on certain patents and other intellectual property rights of the companies
(collectively, the collateral described therein shall be referred to as the
"Patents").
I. As additional security for the Loans, J. Xxxxxxx Xxxxxxxx, an
officer and director of each of the Borrowers ("Xx. Xxxxxxxx"), executed and
delivered to the Bank that certain Assignment of Life Insurance Policy as
Collateral dated June 26, 1999 (the "Life Insurance Assignment") in favor of
SouthTrust regarding Federal Home Life Insurance Company policy number
4307007020 in the face amount of $1,000,000.00 owned by Xx. Xxxxxxxx on his own
life (the "Insurance Policy").
J. All of the documents executed in connection with the Loans
(including, without limitation, the Loan Agreement, the Revolving Note, the Term
Note, the Display/La-Man Trademark Assignment, the Display/Ad Art Trademark
Assignment, the Patent Assignment, the Ad Art Deed of Trust, the La-Man/Xxx Xxxx
Mortgage, the Display Mortgage, and the Life Insurance Assignment) shall be
referred to collectively hereinafter as the "Loan Documents".
K. Pursuant to that certain Participation Agreement in Connection with
a Financing Transaction between SouthTrust Bank, National Association, and
Display Technologies, Inc. and its subsidiaries dated as of May 5, 2000 (the
"Participation Agreement") between the Bank and The Banker's Bank (the
"Participant"), the Participant purchased from the Bank a participation in the
Revolving Loan.
L. As of July 1, 2000, certain Events of Default more particularly
described on Schedule 1 attached hereto had occurred under the Loan Agreement
(the "Pre-July Events of Default").
3
M. Certain Events of Default more particularly described on Schedule 2
attached hereto have occurred on or after July 1, 2000 and are continuing Events
of Default under the Loan Agreement (collectively, such Events of Default shall
be referred to as the "Continuing Events of Default").
N. As a result of the Events of Default under the Loan Agreement, the
Bank has no obligation to make any further advances under the Loan Agreement and
has the right under the Loan Documents to declare the unpaid balance of the
Loans to be forthwith due and payable and to exercise such other rights and
remedies available to the Bank under the Loan Documents and applicable law.
O. Upon the written request of the Original Borrowers made in a letter
dated on or about September 8, 2000 from Xx. Xxxxxxxx to the Bank, and in order
to preserve the Collateral, the Bank agreed to and did make an overadvance on
the Revolving Loan in the amount of $473,000.00 on or about September 11, 2000
to cover the Original Borrowers' then due payroll. Also, upon the request of
Original Borrowers, and in order to preserve the Collateral, the Bank agreed to
and did make another overadvance on the Revolving Loan in the amount of
$473,000.00 on or about September 25, 2000 to cover the Original Borrowers' then
due payroll.
P. Each of the Borrowers has requested that the Bank (1) waive
compliance with certain financial covenants for the fiscal year ending June 30,
2000, (2) grant the Original Borrowers a waiver of the Pre-July Events of
Default, (3) forbear for a limited period of time from exercising certain of its
rights and remedies under the Loan Documents and applicable law as a result of
the Continuing Events of Default, and (4) provide the Original Borrowers with
additional revolving credit availability for a limited period of time, and the
Bank is willing to do so, but only upon the terms, conditions, covenants and
representations of the Borrowers contained herein.
Q. Each of the Borrowers acknowledges and agrees that the forbearance
by the Bank from the current exercise of certain of its rights and remedies as
provided for in this Agreement shall result in a direct and tangible benefit to
each and all of the Borrowers.
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements and undertakings contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. ASSUMPTION OF INDEBTEDNESS BY XXXXXXXX. Xxxxxxxx hereby assumes
direct liability, jointly and severally as a co-obligor with each other Borrower
under the Loan Agreement, for all Obligations under or in connection with the
Loan Agreement, including, without limitation, all Obligations for repayment of
the Revolving Loan, the Term Loan, and for reimbursement of any draws made
against the 1997 Letter of Credit and the 1999 Letter of Credit, and hereby
acknowledges and agrees that all of Xxxxxxxx'x assets are subject to valid and
enforceable security interests in favor of the Bank, as Collateral securing the
Obligations. In furtherance of the foregoing,
4
and as further security for the prompt satisfaction of all Obligations, in
addition to any other or further security provided under any of the Loan
Documents, Xxxxxxxx hereby assigns and transfers to the Bank all of its right,
title and interest in and to, and grants the Bank a lien upon and security
interest in, all of the following property and rights of Xxxxxxxx, wherever
located, whether now owned or hereafter acquired, together with all replacements
therefor and proceeds (including, but without limitation, insurance proceeds)
and products thereof (all of which shall constitute original Collateral under
the Loan Agreement, as amended hereby): (i) Accounts and accounts receivable;
(ii) Chattel Paper; (iii) contracts; (iv) contract rights; (v) Documents; (vi)
Equipment, including all trucks, automobiles, motor vehicles and machinery of
all classes; (vii) fixtures; (viii) General Intangibles; (ix) Instruments; (x)
Inventory, including all goods held for sale or lease or to be furnished under
contracts of service, raw materials, work in process and materials to be used or
consumed in Xxxxxxxx'x business; (xi) furniture; (xii) patents, trademarks,
copyrights and other intellectual property (including software) and all rights
under licenses with respect to intellectual property of other Persons; (xiii)
leasehold improvements; (xiv) interests in partnerships and joint ventures; (xv)
rights as seller of goods and rights to returned or repossessed goods; and (xvi)
all records pertaining to any of the Collateral. As further security for the
prompt satisfaction of all Obligations, Xxxxxxxx hereby assigns, transfers and
sets over to the Bank all of its right, title and interest in and to, and grants
the Bank a lien on and a security interest in, all amounts that may be owing
from time to time by the Bank to Xxxxxxxx in any capacity, including, but
without limitation, any balance or share belonging to Xxxxxxxx of or with
respect to any deposit or other account with the Bank, which lien and security
interest shall be independent of any right of set-off which the Bank may have.
Notwithstanding anything to the contrary herein, during the Agreement, (1)
Xxxxxxxx shall not be obligated under the provisions of Sections 4.2 and 7.15 of
the Loan Agreement to establish or maintain a Special Collection Account with
the Bank and to make all of its deposits into such a Special Collection Account,
and (2) none of the Collateral pledged by Xxxxxxxx to the Bank shall be included
in calculating the Aggregate Loan Values under the Revolving Loan or in
otherwise determining the availability under the Revolving Loan.
2. ACKNOWLEDGMENTS BY BORROWERS. Each of the Borrowers acknowledges and
agrees as follows:
a. ACKNOWLEDGMENT OF DEFAULT AND ENTITLEMENT TO PAYMENT. That
(i) on and as of the date hereof, each of the Term Loan and the Revolving Loan
is in default; (ii) on and as of the date hereof, the Bank has the right to make
demand upon each of the Borrowers for the payment in full of the Term Loan and
the Revolving Loan, and that such demand for payment would be proper in all
respects; and (iii) the Borrowers each waive any and all further notice,
presentment, notice of dishonor or demand with respect to the indebtedness
evidenced by the Loan Documents;
b. ACKNOWLEDGMENT OF INDEBTEDNESS TO SOUTHTRUST. That, as of
September 26, 2000, (i) the Borrowers are indebted, jointly and severally, to
the Bank under the Revolving Loan in the principal amount of $14,379,611.62, for
accrued interest in the amount of $119,435.91, and for legal fees and other
costs and expenses due under the Loan Documents relating to the Revolving Loan;
(ii) the Borrowers are indebted, jointly and severally, to the Bank under the
Term Loan in the
5
principal amount of $568,026.78, for accrued interest in the amount of
$4,512.66, and for legal fees and other costs and expenses due under the Loan
Documents relating to the Revolving Loan; (iii) on and as of the date hereof,
all of the foregoing amounts remain outstanding and unpaid; (iv) on and as of
the date hereof, none of the Borrowers has any claim or counterclaim of any kind
or nature against the Bank, relating to the Loans or otherwise; and (v) on and
as of the date hereof, all such amounts are due and payable in full, without
offset, deduction or counterclaim of any kind or character whatsoever, but are
subject to increase as a result of any and all interest, fees and other charges
which are or shall become due and payable to the Bank under the Loan Documents;
c. ACKNOWLEDGMENT OF INDEBTEDNESS DUE UNDER THE DEMAND NOTES.
That, as of September 26, 2000, (i) the outstanding principal indebtedness due
under the 1997 Demand Notes is $2,270,000.00, along with interest accrued at the
contract rate from September 1, 2000 until the date hereof; (ii) the outstanding
principal indebtedness due under the 1999 Demand Notes is $2,275,000, along with
interest accrued at the contract rate from September 1, 2000 until the date
hereof; (iii) the Borrowers are current on all payments of interest due under
the 1997 Demand Notes and the 1999 Demand Notes; and (iv) to the extent any
draws are made against the 1997 Letter of Credit or the 1999 Letter of Credit
(together, the "Letters of Credit") and the Bank is required to fund such
Letters of Credit, the Borrowers are liable, jointly and severally, to reimburse
the Bank for all such amounts and all other fees and expenses due under the Loan
Agreement and other Loan Documents;
d. ACKNOWLEDGMENT THAT LIABILITIES CONTINUE IN FULL FORCE AND
EFFECT. That the Loan Documents and all other respective liabilities and
obligations of the Borrowers to the Bank under the Loan Documents shall, except
as expressly modified herein during the Forbearance Period (as hereinafter
defined), remain in full force and effect, and shall not be released, impaired,
diminished or in any other way modified or amended as a result of the execution
and delivery of this Agreement or by the agreements and undertakings of the
parties contained herein;
e. ACKNOWLEDGMENT OF LIENS ON COLLATERAL. That the Bank's
security interests in and liens on the Personal Property Collateral, the Ad Art
Mortgaged Property, the Display Mortgaged Property, the La-Man/Xxx Xxxx
Mortgaged Property, the Trademarks, the Patents, the Life Insurance Policy, and
any and all other Collateral, and any and all rents and proceeds therefrom, are
and shall remain in full force and effect as security for all the indebtedness
evidenced by the Loan Documents, and the same is hereby ratified and confirmed
by the Borrowers in all respects;
f. ACKNOWLEDGMENT OF CROSS-DEFAULT OF LOANS. That (i) each of
the Loans is and shall be cross-defaulted with the other Loans such that the
occurrence of a default or Event of Default under any of the Loans is and shall
be a default and Event of Default under all of the Loans and (ii) each of the
Loans is and shall be cross-collateralized, such that any Collateral (other than
the Display Mortgage Property which secures the repayment of only the Term Loan)
securing any of such Loans shall secure the repayment of all of such Loans and
such that the Bank shall have no obligation to release its liens on any of its
collateral securing such Loans unless and until each of these Loans has been
paid or otherwise satisfied in full;
6
g. ACKNOWLEDGMENT OF NO COMMITMENT TO LEND. That, except as
specifically provided in Section 7 of this Agreement, nothing contained in this
Agreement does or shall, at any time, require Bank to make any further loans or
other extensions of credit to any of the Borrowers;
h. ACKNOWLEDGMENT OF LIABILITY FOR LEGAL FEES AND COLLECTION
COSTS. That, without limitation of the foregoing, the Borrowers are liable,
jointly and severally, for all of the Bank's reasonable attorneys' fees and
expenses and collection costs incurred in connection with the Loans through the
date of this Agreement and are liable for all of the Bank's attorneys' fees and
expenses and collection costs incurred after the date hereof; and
i. ACKNOWLEDGMENT OF BANK'S RIGHT TO ACCRUE AND COLLECT
INTEREST AT THE DEFAULT RATE. That, as a result of the Pre-July Events of
Default and the Continuing Events of Default, the Bank has a right under the
Loan Agreement, the other Loan Documents and applicable law to accrue and
collect interest on the unpaid principal balance of the Loans at the Default
Rate provided for under the Loan Agreement.
3. REPRESENTATIONS OF BORROWERS. In order to induce the Bank to enter
into this Agreement, each of the Borrowers hereby makes the following
representations and warranties to the Bank:
a. NO OTHER EVENTS OF DEFAULT. Except for those Pre-July
Events of Default and Continuing Events of Default described above, the
Borrowers have no knowledge of the occurrence of any other Events of Default
under the Loan Agreement or of any facts, acts or omissions that might
constitute or give rise to an Event of Default under the Loan Agreement;
b. NO OTHER UNENCUMBERED ASSETS. Other than the Collateral and
the Additional Collateral (as such term is described below), the Borrowers do
not own any other assets that are not presently encumbered by liens, mortgages,
security interests, or assignments in favor of any party.
c. LIST OF SUBSIDIARIES. The Borrowers do not hold any stock,
membership units, partnership interests, or other equity interest in any
companies, corporations, partnerships, limited liability entities, or other
business entities except as expressly described on Exhibit A attached hereto.
d. LOCATION OF INVENTORY. Exhibit B attached hereto fully and
accurately describes all locations at which any Inventory of the Borrowers with
an aggregate cost of more than $50,000.00 is located as of the date of this
Agreement; provided, however, that such list excludes items that are included as
Inventory in calculating the Aggregate Loan Values, but which constitute
"Unbilled Receivables." The term "Unbilled Receivables", as defined herein,
means Goods shown in the Borrowers' accounting records as Inventory, but that
are to a point in the production, shipping and installation process such that
the Goods have been substantially converted into an Account, but
7
for which invoices have not yet been issued by the Borrowers to the customers
purchasing such Goods.
e. CORPORATE RELATIONSHIPS. The Borrowers represent and
warrant to the Bank (i) that Xxxxxxxx is a wholly-owned subsidiary of DTEK
Signs, ULC, a Nova Scotia unlimited liability company ("DTEK Signs"), (ii) that
DTEK Signs is a wholly-owned subsidiary of DTEK Canada, Inc., a Florida
corporation ("DTEK Canada"), (iii) DTEK Canada is a wholly-owned subsidiary of
Ad Art, and (iv) that each of the Original Borrowers, Xxxxxxxx, DTEK Signs, and
DTEK Canada will derive a substantial, direct and tangible benefit as a result
of the Bank entering into this Agreement
f. REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES IN LOAN
DOCUMENTS. Each of the Original Borrowers hereby ratifies and reaffirms each of
the representations and warranties made to the Bank in each of the Loan
Documents, and avers that such representations and warranties remain true and
correct as of the date of this Agreement. Xxxxxxxx adopts as its own each of the
representations and warranties made by the Original Borrowers to the Bank in
each of the Loan Agreement, except for those representations and warranties
described in Schedules 1 and 2 attached to this Agreement and except for the
representations and warranties made in Sections 5.3, 5.6, 5.7, 5.8 and 5.10(b)
of the Loan Agreement, and avers that such representations and warranties are
true and correct as of the date of this Agreement.
4. WAIVERS.
a. WAIVER OF COMPLIANCE WITH CERTAIN COVENANTS. Subject to the
satisfaction of the terms and conditions set forth in Section 12 below, the Bank
hereby waives compliance by the Original Borrowers with Sections 2.1(f), 4.2,
6.6, 6.7(a), 6.8, 6.14, 6.23(d), 6.23(d), 6.24, 6.26, 7.15, and 7.16 of the Loan
Agreement solely for the XXX Xxxx 30, 2000.
b. NO WAIVER OF CONTINUING EVENTS OF DEFAULT. Notwithstanding
anything to the contrary herein, nothing in this Agreement or in any other
document or instrument executed in connection herewith, is intended, or shall be
deemed, to constitute a waiver of any of the Continuing Events of Default
described on Schedule 2 attached hereto or the occurrence of any other Event of
Default under the Loan Agreement.
5. FORBEARANCE BY BANK.
a. FORBEARANCE PERIOD. At the request of the Borrowers, and
upon the terms and conditions set forth herein, Bank agrees to forbear from
pursuing collection of the indebtedness due under the Loan Documents as a result
of the defaults and the Continuing Events of Default existing under the Loan
Documents, as of the date of this Agreement until the earliest to occur of the
following times: (i) 2:00 p.m., central time, on Friday, October 31, 2000, (ii)
the time at which any of the Borrowers fails to comply in any respect with any
of the covenants to Bank set forth in this Agreement or the Borrowers' breach of
any of the representations made herein; or (iii) the
8
occurrence of any Event of Default under any of the Loan Documents (other than
the continuation of the Continuing Events of Default described in this
Agreement) (the period beginning on the date of this Agreement and terminating
on the earliest of such dates being hereinafter referred to as the "Forbearance
Period").
b. TERMINATION OF FORBEARANCE PERIOD. Upon the termination of
the Forbearance Period pursuant to any of clauses (i) through (iii) of paragraph
a. above, all forbearances, deferrals and indulgences granted by Bank in
paragraph a. above shall automatically terminate, and Bank shall thereupon have,
and shall be entitled to exercise, any and all rights and remedies which it may
have upon the occurrence of an Event of Default, including pursuing collection
against the Borrowers, and the indebtedness evidenced by the Loan Documents
shall become immediately due and payable, without further notice of any kind.
6. ADDITIONAL COVENANTS OF THE BORROWERS DURING THE FORBEARANCE PERIOD.
At all times during the Forbearance Period, and in order to induce the Bank to
enter into this Agreement and as a condition to the continuation of the
Forbearance Period pursuant to Section 5.a.(ii) hereof, the Borrowers, and each
of them, covenant and agree as follows:
a. REAFFIRMATION OF COVENANTS MADE IN THE LOAN DOCUMENTS. Each
of the Original Borrowers hereby ratifies and reaffirms each of its covenants
made in the Loan Documents, except for those covenants described above that are
in breach as of the date of this Agreement, and further ratifies and reaffirms
his, her or its obligation to and agreement with the Bank to perform such
covenants for the benefit of the Bank. Xxxxxxxx hereby adopts as its own each of
those covenants made in the Loan Agreement by the Original Borrowers, except for
those covenants described in Schedules 1 and 2 in breach as of the date of this
Agreement and except for its covenants in Sections 6.2.1, 7.1, 7.2, 7.9 and
7.15, and covenants and agrees to the Bank that it will perform such covenants
for the benefit of the Bank.
b. REPORTING.
i. ACCOUNTS RECEIVABLE AND INVENTORY REPORTS. The
Borrowers shall provide to the Bank, not later than the fourth business day of
each week during the Forbearance Period, an accounts receivable aging report and
an inventory report dated as of the last day of the immediately preceding week,
in commercially reasonable form.
ii. YEAR-END REPORTS. The Borrowers, and each of
them, covenant and agree that they shall ensure that the Annual Report on Form
10k to be filed by Display for the year ending June 30, 2000 shall disclose (1)
the occurrence of the Pre-July Events of Default and (2) that SouthTrust, at the
request of the Borrowers, has agreed to waive such Pre-July Events of Default
through and including July 1, 2000. The Borrowers shall furnish to Bank a copy
of such Annual Report prior to the filing of such report with the Securities
Exchange Commission.
9
iii. FINANCIAL STATEMENTS. The Borrowers shall
provide to the Bank the financial reports described below as soon as possible,
but at a minimum, by the dates set forth below:
Draft June 30, 2000 Income Statements & Balance Sheet and
July 31, 2000 Internal Financial Statements Due on 10/06/00
Final June 30, 2000 Financial Statements Due on 10/16/00
August 31, 2000 Internal Financial Statements Due on 10/23/00
September 30, 2000 Internal Financial Statements Due on 11/15/00
All financial statements thereafter Due in accordance
with terms of Loan
Agreement
c. PAYMENTS ON TERM LOAN. Interest shall continue to accrue on
the unpaid principal amount of the Term Loan at the Default Rate provided for
under the Loan Agreement. During the Forbearance Period, the Borrowers shall pay
to Bank, as and when due, all payments of principal and interest, accrued at the
Default Rate under the Loan Agreement, due under the Term Loan.
c. BONUSES AND DIVIDENDS. Except for dividends payable on
Display's outstanding Series A Convertible Preferred Stock not to exceed the
total amount of $70,000.00, the Borrowers will not, during the Forbearance
Period, pay any dividends, bonuses, or other distributions, nor increase
salaries or other compensation to any officers or directors of any of the
Borrowers.
e. SPECIAL COLLECTION ACCOUNT FOR XXXXXXXX. Xxxxxxxx (i) shall
immediately establish a Special Collection Account or Accounts with the Bank and
(ii) shall use its best efforts to be in full compliance with all terms and
conditions of the Loan Agreement regarding Special Collection Accounts,
including, without limitation, the terms and conditions set forth in Sections
4.2 and 7.15 of the Loan Agreement, by no later than Friday, October 6, 2000,
and, in any event, shall be in full compliance with all terms and conditions of
the Loan Agreement regarding Special Collection Accounts by the end of the
Forbearance Period.
f. PAYOFF OF LOANS. During the Forbearance Period, the
Borrowers shall use their best efforts to negotiate and close a sale of the
Borrowers' businesses, and/or a refinancing of the Loans and a release of the
Letters of Credit, that will result in the payment and satisfaction of all the
Loans and a release of the Letters of Credit, including, without limitation, the
payment of all prepayment penalties and other charges that are or will become
due under the Loan Agreement and other Loan Documents. The Borrowers shall
provide promptly to the Bank copies of any and all offers that any of them
receives for the purchase of substantially all of the assets of, or a
controlling interest in, Display.
g. NO COMPROMISE OF ACCOUNTS OR CLAIMS. With respect to any
account receivables or claims of the Borrowers in excess of $500,000.00, the
Borrowers shall not
10
compromise or settle such accounts or claims for a discount of more than ten
percent (10%) of such account or claim without the prior written consent of the
Bank.
h. CASH FLOW FORECAST. During the Forbearance Period, each
Borrower will operate its businesses with respect to cash disbursements within
the cash flow forecasts prepared by Borrowers attached hereto as Exhibit C (the
"Cash Flow Forecasts").
i. PAYMENT OF LEGAL FEES. Upon the Borrowers' execution and
delivery of this Agreement, and monthly thereafter, the Borrowers shall pay all
of the reasonable legal fees and actual expenses incurred by both SouthTrust
Bank and the Participant in connection with this Agreement, the Loan Agreement,
the other Loan Documents, the Loans, and the transactions described herein. The
Borrowers shall reimburse the Bank and the Participant, respectively, within
five (5) business days of the Bank or the Participant, as the case may be,
sending to the Borrowers its written request for payment of such fees and
expenses.
j. PAYMENT OF XXXXXXXX LENDER'S LOAN. The Borrowers shall give
the Bank at least two (2) days' advance written notice of the Borrowers'
intention to pay or otherwise satisfy Xxxxxxxx'x outstanding obligations to
Royal Bank of Canada (the "Xxxxxxxx Lender"). The Borrowers shall immediately
notify the Bank in writing of the Xxxxxxxx Lender's release of its liens on any
of the Additional Collateral pledged by Xxxxxxxx to the Bank pursuant to this
Agreement.
k. PROOF OF USE OF TRADEMARKS. The Borrowers shall file, by no
later than October 6, 2000, with the U.S. Department of Commerce, Patent and
Trademark Office, proof of use of any of the Borrowers' trademarks described in
the Trademark Assignment, as amended pursuant to the amendment of even date
herewith, that are in use or have been in use by the Borrowers and shall provide
the Bank with a copy of any and all documents filed with such office in
furtherance thereof.
7. ADVANCES ON THE REVOLVING LOAN DURING THE FORBEARANCE PERIOD.
a. MAXIMUM AMOUNT OF ADVANCES UNDER REVOLVING LOAN. During the
Forbearance Period, and subject to the satisfaction of each of the conditions
set forth in Section 12 below, the Bank shall continue to make advances to the
Borrowers under the Revolving Loan in accordance with the terms of the Loan
Agreement and the other Loan Documents; provided, however, that during the
Forbearance Period, the term "Aggregate Loan Values", as used in the Loan
Agreement, shall mean the lesser of (a) the sum of Twenty-Three Million and
No/100 Dollars (U.S. $23,000,000.00) or (b) the sum of (i) the Loan Value of
Accounts, plus (ii) the Loan Value of Inventory, plus (iii) Three Million Five
Hundred Thousand and No/100 Dollars (U.S. $3,500,000.00). Except as specifically
provided in Section 7.b below, the Borrowers ability to obtain advances on the
Revolving Loan during the Agreement shall remain subject to all other conditions
and restrictions set forth in the Loan Agreement.
11
b. NO OPTION OF BORROWER TO INCREASE LIMITATION ON AGGREGATE
LOAN VALUES. During the Forbearance Period, the Borrower shall not have the
right to exercise its option under Section 2.1(b) of the Loan Agreement to
increase by $500,000.00, or any lesser amount, the limitation on Aggregate Loan
Values.
c. USE OF REVOLVING LOAN PROCEEDS. The Borrowers covenant and
agree that they shall use the proceeds of any and all advances and overadvances
made by Bank on the Revolving Loan during the Agreement solely and strictly as
provided in the Cash Flow Forecasts prepared by Borrowers attached hereto as
Exhibit C.
d. CONVERSION OF REVOLVING LOAN INTO BASE RATE LOAN. Effective
as of the date of this Agreement, the Revolving Loan shall be converted to a
Base Rate Loan in accordance with Section 2.1(k) of the Loan Agreement.
8. ADDITIONAL COLLATERAL FOR THE LOANS. As additional collateral for
the repayment of each of the Loans, the Borrowers hereby pledge, assign,
mortgage, lien, grant security interests in and to the following collateral
(collectively, the "Additional Collateral"):
a. STOCK PLEDGES. All common stock, preferred stock, other
stock and other equity interests owned, directly or indirectly, by any of the
Borrowers in (a) Xxxxxxxx; (b) DTEK Canada, Inc., (c) DTEK Signs ULC, (d)
Xxxxxxxx, and (e) AmeriVision Outdoor, Inc., all of which equity interests are
specifically and completely described on Exhibit A attached hereto;
b. ASSETS OF XXXXXXXX. As more particularly set forth in
Section 1 above, all personal and real property interests of Xxxxxxxx,
including, without limitation, all of its personal and real property, which
property is more particularly described on Exhibit D attached hereto; provided,
however, that the Borrowers and the Bank acknowledge and agree that (i) the lien
on such assets shall be junior in priority only to the existing liens on such
property granted by Xxxxxxxx to the Xxxxxxxx Lender and (ii) the Bank covenants
and agrees that it shall not perfect its liens on such property subject to the
liens of the Xxxxxxxx Lender until the earlier of (A) the date upon which the
Borrowers advise the Bank, pursuant to Section 6.j. hereof, that the Borrowers
intend to pay or otherwise satisfy the obligations of Xxxxxxxx to the Xxxxxxxx
Lender; (B) the date upon which the Borrowers pay or otherwise satisfy the
obligations of Xxxxxxxx to the Xxxxxxxx Lender (C) the date upon which the
Xxxxxxxx Lender releases its liens on the Collateral pledged by Xxxxxxxx to the
Bank; (D) the occurrence of an Event of Default under the Loan Agreement, as
amended hereby, other than the continuance of a Continuing Event of Default; (E)
the breach of any of the Borrowers' obligations under this Forbearance
Agreement; and (F) the end of the Forbearance Period;
c. MOTOR VEHICLES. The Borrowers, and each of them, shall
grant the Bank liens on all of their titled motor vehicles, which vehicles are
fully and particularly described on Exhibit E attached hereto; and
12
d. AMENDMENT OF THE DISPLAY MORTGAGE. The Borrowers further
agree to amend the Display Mortgage to provide specifically that the limitation
on the amount of unpaid principal that may be recovered under such mortgage is
increased from $345,000.00 to $568,026.78.
9. ADDITIONAL EVENTS OF DEFAULT. In addition to the Events of Default
stated in the Loan Agreement, it shall also be an "Event of Default" under the
Loan Agreement and the other Loan Documents if a drawing is made on the Letters
of Credit and the Borrowers shall fail to reimburse the Bank, in accordance with
the terms of Section 2A.3 of the Loan Agreement, for the amount of such drawing.
10. CONSENT TO RELIEF FROM STAY. EACH OF THE BORROWERS HEREBY AGREES
THAT, IN CONSIDERATION OF THE RECITALS, WAIVERS, AND MUTUAL COVENANTS CONTAINED
HEREIN, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, INCLUDING THE FORBEARANCE
OF BANK FROM EXERCISING ITS RIGHTS AND REMEDIES OTHERWISE AVAILABLE TO IT UNDER
THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, THE RECEIPT AND SUFFICIENCY OF
WHICH ARE HEREBY ACKNOWLEDGED, IN THE EVENT ANY OF THE BORROWERS (BY ITS OWN
ACTION, OR THE ACTION OF ANY OTHER PERSONS) SHALL, ON OR BEFORE THE DATE BANK IS
PAID IN FULL ON THE INDEBTEDNESS AS EVIDENCED BY THE LOAN AGREEMENT AND THE
OTHER LOAN DOCUMENTS, (I) FILE WITH A BANKRUPTCY COURT OF COMPETENT JURISDICTION
OR BE THE SUBJECT OF ANY PETITION FOR RELIEF UNDER TITLE 11 OF THE U.S. CODE
(THE "BANKRUPTCY CODE"), AS AMENDED, OR ANY OTHERWISE APPLICABLE LAW OF ANY
JURISDICTION, (II) BE THE SUBJECT OF ANY ORDER FOR RELIEF ISSUED UNDER THE
BANKRUPTCY CODE, (III) FILE OR BE THE SUBJECT OF ANY PETITION SEEKING ANY
REORGANIZATION, ARRANGEMENT, COMPOSITION, READJUSTMENT, LIQUIDATION,
DISSOLUTION, OR SIMILAR RELIEF UNDER ANY PRESENT OR FUTURE FEDERAL OR STATE ACT
OR LAW RELATING TO BANKRUPTCY, INSOLVENCY, OR OTHER RELIEF FOR DEBTORS, (IV)
HAVE SOUGHT OR CONSENTED TO OR ACQUIESCED IN THE APPOINTMENT OF ANY TRUSTEE,
RECEIVER, CONSERVATOR, LIQUIDATOR, (V) BE THE SUBJECT OF ANY ORDER, JUDGMENT OR
DECREE ENTERED BY ANY COURT OR COMPETENT JURISDICTION APPROVING A PETITION FILED
AGAINST SUCH PARTY FOR ANY REORGANIZATION, ARRANGEMENT, COMPOSITION,
READJUSTMENT, LIQUIDATION, DISSOLUTION, OR SIMILAR RELIEF UNDER ANY PRESENT OR
FUTURE FEDERAL OR STATE ACT OR LAW RELATING TO BANKRUPTCY, INSOLVENCY, OR RELIEF
FOR DEBTORS, BANK SHALL THEREUPON BE ENTITLED TO RELIEF FROM ANY AUTOMATIC STAY
IMPOSED BY SECTION 362 OF BANKRUPTCY CODE, OR OTHERWISE, ON OR AGAINST THE
EXERCISE OF THE RIGHTS AND REMEDIES OTHERWISE AVAILABLE TO BANK AS PROVIDED IN
THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS HEREBY AMENDED, AND AS
OTHERWISE PROVIDED BY LAW, INCLUDING, WITHOUT LIMITATION, ITS RIGHT TO FORECLOSE
UPON AND REPOSSESS THE COLLATERAL AND THE ADDITIONAL COLLATERAL, AND EACH OF THE
BORROWERS HEREBY WAIVES THE BENEFITS OF SUCH AUTOMATIC STAY AND CONSENTS AND
AGREES TO RAISE NO OBJECTION TO ANY REQUEST MADE BY BANK FOR SUCH RELIEF.
11. RELEASE. EACH OF THE BORROWERS HEREBY RELEASES, ACQUITS, AND
FOREVER DISCHARGES BANK, AND EACH AND EVERY PAST AND PRESENT SUBSIDIARY,
AFFILIATE, STOCKHOLDER, OFFICER, DIRECTOR, AGENT, SERVANT, EMPLOYEE,
REPRESENTATIVE, AND ATTORNEY OF BANK, AND THE BANK'S PARTICIPANT IN THE
REVOLVING LOAN, THE BANKER'S BANK (THE "PARTICIPANT"), AND EACH AND EVERY PAST
AND PRESENT SUBSIDIARY, AFFILIATE, STOCKHOLDER, OFFICER, DIRECTOR, AGENT,
SERVANT, EMPLOYEE, REPRESENTATIVE, AND ATTORNEY OF THE PARTICIPANT, FROM ANY AND
ALL CLAIMS, CAUSES OF ACTION, SUITS,
13
DEBTS, LIENS, OBLIGATIONS, LIABILITIES, DEMANDS, LOSSES, COSTS AND EXPENSES
(INCLUDING ATTORNEYS' FEES) OF ANY KIND, CHARACTER, OR NATURE WHATSOEVER, KNOWN
OR UNKNOWN, FIXED OR CONTINGENT, WHICH ANY OF THE OBLIGORS MAY HAVE OR CLAIM TO
HAVE NOW OR WHICH MAY HEREAFTER ARISE OUT OF OR CONNECTED WITH ANY ACT OF
COMMISSION OR OMISSION OF BANK OR PARTICIPANT, EXISTING OR OCCURRING PRIOR TO
THE DATE OF THIS AGREEMENT OR ANY INSTRUMENT EXECUTED PRIOR TO THE DATE OF THIS
AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY CLAIMS, LIABILITIES OR OBLIGATIONS
ARISING WITH RESPECT TO THE LOAN AGREEMENT OR ANY OF THE LOAN DOCUMENTS. THE
PROVISIONS OF THIS SECTION SHALL BE BINDING UPON EACH OF THE BORROWERS, AND
THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND SHALL INURE TO THE BENEFIT OF BANK,
THE PARTICIPANT, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
12. CONDITIONS PRECEDENT. The obligations of the Bank under Sections 4,
5 and 7 of this Agreement, and the enforceability of the terms and conditions of
Sections 4, 5 and 7 of this Agreement against the Bank, are conditioned
expressly upon the satisfaction of the following conditions:
a. The Borrowers each shall have delivered or caused to be
delivered to Bank the following documents and instruments, all
of which shall be satisfactory in form and substance to Bank
and its counsel:
i. this Agreement executed by each of the Borrowers,
along with all of the Exhibits to this Agreement;
ii. certified management representations that all tax
obligations of the Borrowers have been paid;
iii. proof satisfactory to the Bank that all of the
Borrowers are in good standing and existence and that
each of them is authorized to enter into the
transactions described herein;
iv. such security documents, duly-executed by the
Borrowers, as necessary for the Bank to obtain
perfected security interests and liens in all of the
Collateral and the Additional Collateral; and
v. delivery to Bank of certificates or other documents
evidencing the Borrowers' ownership interests in (1)
Xxxxxxxx, (2) DTEK Canada, (3) DTEK Signs, (4)
Xxxxxxxx, and (5) AmeriVision Outdoor, Inc.
b. the Borrowers shall have paid in cash all the reasonable legal
fees and expenses (including, without limitation, any and all
recording costs) of both the Bank and the Participant incurred
through the date on which the Borrowers sign and deliver this
Agreement to the Bank;
14
c. the receipt by Bank of the Participant's written consent to
(i) the waiver of the Pre- July Events of Default, (ii) the
making of the advances under the Revolving Loan Agreement
during the Forbearance Period under the terms and conditions
of this Agreement, and (iii) such other transactions
contemplated by this Agreement as may require the prior
written consent of the Participant under the Participation
Agreement;
d. except as referenced in Schedules 1 and 2 attached hereto, all
representations and warranties of the Original Borrowers to
the Bank set forth herein, in the Loan Agreement or other Loan
Documents, or in any other agreement between the Original
Borrowers and the Bank relating hereto shall be accurate and
complete in all respects on and as of the date of this
Agreement.
13. MISCELLANEOUS.
a. SCOPE OF AGREEMENT. Except as expressly modified by this
Agreement, the provisions of the Loan Agreement and other Loan Documents shall
remain in full force and effect. Nothing contained in this Agreement shall be
construed to impair the security of the Bank under the Loan Agreement and other
Loan Documents, nor affect or impair any rights or powers that the Bank may have
under the Loan Agreement and other Loan Documents in case of the Borrowers'
nonperformance of the terms, provisions and covenants contained in this
Agreement or in the case of the occurrence of an Event of Default other than the
Continuing Events of Default specified in the recitals to this Agreement. All
agreements of and undertakings by the Borrowers pursuant to this Agreement are
intended to be cumulative with any other agreements or undertakings by the
Borrowers under the Loan Agreement and other Loan Documents and are not intended
to limit the generality of any such agreement or undertaking. Each of the
Borrowers hereby ratifies and confirms the validity and effectiveness of the
Loan Agreement and other Loan Documents as modified by this Agreement. This
Agreement constitutes the entire agreement of the parties and may only be
amended pursuant to a writing signed by all of the parties hereto.
b. NO WAIVER. Except as specifically provided in Section 4
above, this Agreement is not intended to operate as, and shall not be construed
as, a waiver of any Continuing Event of Default or other Event of Default,
whether known to Bank or unknown, as to which all rights of Bank shall remain
reserved.
c. GOVERNING LAW. This Agreement shall be governed by, and
shall be construed in accordance with, the laws of the State of Florida, without
regard to principles governing conflicts of law, and all applicable laws of the
United States of America.
d. WAIVER OF RIGHT TO JURY TRIAL. THE PARTIES DESIRE TO AVOID
THE ADDITIONAL TIME AND EXPENSE RELATED TO A JURY TRIAL OF ANY DISPUTES ARISING
UNDER THIS AGREEMENT, THE DISCUSSIONS AND NEGOTIATIONS LEADING UP TO THIS
AGREEMENT, THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS. ACCORDINGLY, WITH
RESPECT TO ANY SUCH DISPUTE, THE
15
BANK AND THE BORROWERS EACH HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY AND
CONSENT TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY THE JUDGE OF A COURT OF COMPETENT JURISDICTION. THE PARTIES
ACKNOWLEDGE AND AGREE THAT THIS WAIVER IS KNOWINGLY, FREELY AND VOLUNTARILY
GIVEN, IS MADE AFTER OPPORTUNITY TO CONSULT WITH COUNSEL ABOUT THIS WAIVER, AND
IS IN THE BEST INTERESTS OF EACH PARTY.
e. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be an original and all of which, taken
together, shall constitute but one and the same agreement among the parties.
f. BINDING NATURE. Subject to the terms and conditions of
Section 12 of this Agreement, this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
g. CAPTIONS. The captions to the sections and paragraphs of
the Agreement are for the convenience of the parties only, and are not a part of
this Agreement.
h. TIME OF THE ESSENCE. Time is of the essence under this
Agreement.
i. NO RELEASE OF BORROWERS. Nothing herein is, or shall be
construed as, a release of any of the Borrowers' obligations and liabilities to
the Bank under the Loan Documents or of any of the Collateral and Additional
Collateral securing the Borrowers' obligations to the Bank.
k. FURTHER DOCUMENTS. Each of the Borrowers agrees to execute
and deliver, or cause to be executed and delivered, to Bank from time to time
such additional confirmatory or supplementary agreements, notices or other
documents, instruments or agreements as Bank may, in its sole discretion,
request which are in Bank's judgment necessary or desirable to obtain for Bank
the benefit of this Agreement.
l. INTERPRETATION. This Agreement shall be construed to
liberally effectuate the rights and remedies of the parties hereto as expressed
herein, and neither such principle of interpretation nor the express language of
this Agreement shall be impaired or adversely affected by any instruments and
documents executed in connection herewith. The deletion of any provision from a
prior draft of this Agreement shall not and shall not be deemed to constitute
(and shall not be used as) evidence of any fact or interpretation, since the
parties may disagree as to the meaning and effect of such a deletion, as no
prior draft of this Agreement shall be admissible as evidence of the meaning of
this Agreement. Should any provision of this Agreement, the Loan Agreement, or
any of the other Loan Documents require judicial interpretation, it is agreed
that a court interpreting or construing same shall not apply a presumption that
the terms hereof shall be more strictly construed against one party by reason of
the rule of construction that a document is to be construed more strictly
against the party who itself or through its agent prepared the same, it being
agreed that all parties hereto have participated in the preparation hereof and
of the Loan Agreement and other Loan Documents.
16
m. NO COURSE OF CONDUCT. At no time shall the prior or
subsequent course of conduct by any of the Borrowers or Bank directly or
indirectly limit, impair or otherwise adversely affect any of the parties'
rights or remedies in connection with this or any of the instruments and
documents executed in connection herewith, since the parties hereto agree that
this Agreement shall only be amended by written instruments executed by the
parties, as provided herein.
n. NO THIRD PARTIES BENEFITTED. This Agreement is made and
entered into for the protection and benefit of the parties hereto, the
Participant, and their respective successors and assigns, and no other person or
entity shall be a direct or indirect beneficiary of or have any direct or
indirect cause of action or claim in connection with this Agreement, the Loan
Agreement, or any of the other Loan Documents.
o. NO FURTHER COMMITMENT. Without limiting the foregoing, each
of the Borrowers expressly acknowledges that (i) the Bank has not made and is
not making any commitment for, and that there is no understanding, explicit or
implicit, relating to, or affecting, financing for any time beyond the end of
the Forbearance Period, and (ii) the Bank has made no commitment with respect
to, and there is no understanding, explicit or implicit, relating to or
affecting the terms of any further restructure or workout of the Loans other
than as expressly provided in this Agreement.
p. LIMITED RELATIONSHIPS. Neither Bank nor any representative
of Bank at any time has agreed or consented to being an agent, principal,
business associate or participant, joint venturer, partner or alter ego of any
of the Borrowers or any of their affiliates, and no such relationship is
contemplated. No person except employees of the Bank and the Bank's counsel has
at any time been directly or indirectly authorized by the Bank to directly or
indirectly represent, speak or act for or on behalf of the Bank with respect to
any matter whatsoever related to, arising out of or connected with this
Agreement or any other matter or contract.
17
IN WITNESS WHEREOF, the parties have hereunto set their hands
and seals effective as of the date first above written.
DISPLAY TECHNOLOGIES, INC.
----------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: President / Chief Executive Officer
AD ART ELECTRONIC SIGN CORPORATION
----------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Chairman
CERTIFIED MAINTENANCE SERVICE, INC.
----------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Chairman
XXX XXXX INDUSTRIES, INC.
----------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Chairman
X.X. XXXXXXX MANUFACTURING, INC.
----------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Chairman
LA-MAN CORPORATION
----------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Chairman
18
X.X. XXXXXXX CORPORATION
----------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Vice-President
X.X. XXXXXXX INDUSTRIES, INC.
----------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Vice-President
VISION TRUST MARKETING, INC.
----------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: President
XXXXXXXX SIGN GROUP, INC.
----------------------------------
By: J. Xxxxxxx Xxxxxxxx
Its: Chairman
XXXXXXXX DIGITAL DESIGNS, LTD.
----------------------------------
By:
------------------------------
Its:
------------------------------
SOUTHTRUST BANK
----------------------------------
By
-------------------------------
Its
-----------------------------
19
STATE OF _____________ )
:
COUNTY )
----------------------------
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as President and
Chief Executive Officer of Display Technologies, Inc., a Florida corporation, is
signed to the foregoing instrument, and who is known to me, acknowledged before
me on this day that, being informed of the contents of said instrument, he, as
such officer and with full authority, executed the same voluntarily for and as
the act of said corporation.
Given under my hand and official seal this day of , 2000.
-------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
---------------
STATE OF _____________ )
:
COUNTY )
----------------------------
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as Chairman of
Ad Art Electronic Sign Corporation, a Florida corporation, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on this day
that, being informed of the contents of said instrument, he, as such officer and
with full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this day of , 2000.
-------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
---------------
20
STATE OF _____________ )
:
COUNTY )
----------------------------
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as Chairman of
Certified Maintenance Service, Inc., a Florida corporation, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on this day
that, being informed of the contents of said instrument, he, as such officer and
with full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this day of , 2000.
-------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
---------------
STATE OF _____________ )
:
COUNTY )
----------------------------
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as Chairman of
Xxx Xxxx Industries, Inc., a Florida corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of said instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this day of , 2000.
-------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
---------------
21
STATE OF _____________ )
:
COUNTY )
----------------------------
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as Chairman of
X.X. Xxxxxxx Manufacturing, Inc., a Florida corporation, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on this day
that, being informed of the contents of said instrument, he, as such officer and
with full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this day of , 2000.
-------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
---------------
STATE OF _____________ )
:
COUNTY )
----------------------------
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as Chairman of
La-Man Corporation, a Florida corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of said instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this day of , 2000.
-------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
---------------
22
STATE OF _____________ )
:
COUNTY )
----------------------------
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as
Vice-President of X.X. Xxxxxxx Corporation, a Florida corporation, is signed to
the foregoing instrument, and who is known to me, acknowledged before me on this
day that, being informed of the contents of said instrument, he, as such officer
and with full authority, executed the same voluntarily for and as the act of
said corporation.
Given under my hand and official seal this day of , 2000.
-------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
---------------
STATE OF _____________ )
:
COUNTY )
----------------------------
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as
Vice-President of X.X. Xxxxxxx Industries, Inc., a Florida corporation, is
signed to the foregoing instrument, and who is known to me, acknowledged before
me on this day that, being informed of the contents of said instrument, he, as
such officer and with full authority, executed the same voluntarily for and as
the act of said corporation.
Given under my hand and official seal this day of , 2000.
-------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
---------------
23
STATE OF _____________ )
:
COUNTY )
----------------------------
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as President of
Vision Trust Marketing, Inc., a Florida corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of said instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this day of , 2000.
-------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
---------------
STATE OF _____________ )
:
COUNTY )
----------------------------
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as Chairman of
Xxxxxxxx Sign Group, Inc., a Florida corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of said instrument, he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this day of , 2000.
-------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
---------------
24
STATE OF _____________ )
:
COUNTY )
----------------------------
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. Xxxxxxx Xxxxxxxx, whose name as
______________ of Xxxxxxxx Digital Designs, Ltd., a Florida corporation, is
signed to the foregoing instrument, and who is known to me, acknowledged before
me on this day that, being informed of the contents of said instrument, he, as
such officer and with full authority, executed the same voluntarily for and as
the act of said corporation.
Given under my hand and official seal this day of , 2000.
-------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
---------------
STATE OF _____________ )
:
______________ COUNTY )
I, the undersigned, a Notary Public in and for said County in
said State, hereby certify that , whose name as of SOUTHTRUST BANK, is signed to
the foregoing instrument, and who is known to me, acknowledged before me on this
day that, being informed of the contents of the instrument, he as such officer,
and with full authority, executed the same voluntarily for and as the act of
said corporation.
Given under my hand and seal of office this _____ day
of _________ , 2000.
-------------------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:
---------------
25
SCHEDULE 1
PRE-JULY EVENTS OF DEFAULT
1. The failure of the Borrowers to maintain at all times a Fixed
Charge Coverage of not less than 1.1 to 1.0 during XXX Xxxx
30, 2000, as required by Section 6.23(c) of the Loan
Agreement;
2. The failure of the Borrowers to maintain at all times a Funded
Debt to EBITDA of not more than 4.0 to 1.0 during XXX Xxxx 30,
2000, as required by Section 6.23(d) of the Loan Agreement;
3. The failure of the Borrowers during XXX Xxxx 30, 2000 to
provide the Bank with physical inventory listings as they were
prepared as required by Section 6.24 of the Loan Agreement.
4. The failure of the Borrowers to complete timely the
improvements on the Florida Real Estate, as required by
Section 6.26 of the Loan Agreement.
5. The failure of the Borrowers to provide the Bank with a
listing of the Borrowers' contingent liabilities during XXX
Xxxx 30, 2000, as required by Section 6.6 of the Loan
Agreement.
6. The failure of the Borrowers to provide the Bank with
certificates from the Chief Financial Officer of Display
attesting to the correctness of the financial statements
provided to the Bank during XXX Xxxx 30, 2000, as required by
Section 6.6 of the Loan Agreement.
7. The failure of the Borrowers to provide the Bank with the
certificates from the President and Chief Financial Officer of
Display during XXX Xxxx 30, 2000, as required by Section
6.7(a) of the Loan Agreement.
8. The failure of the Borrowers during XXX Xxxx 30, 2000 to
provide timely to the Bank the monthly collateral reports as
required by Section 6.8 of the Loan Agreement.
9. The failure of the Borrowers to timely advise the Bank of any
change in the location of the Bank's Collateral as required by
Section 6.14 of the Loan Agreement;
10. The failure of Xxxxxxxx to maintain a Special Collection
Account or Accounts with the Bank and to deposit all proceeds
of the Collateral therein, as required by Sections 4.2 and
7.15 of the Loan Agreement;
27
11. The Borrowers' making of certain payments on Subordinated Debt
in violation of Section 7.16 of the Loan Agreement.
28
SCHEDULE 2
CONTINUING EVENTS OF DEFAULT
1. The failure of Borrowers to timely provide the Bank with
unaudited monthly financial statements for the months of June
2000 and July 2000 in accordance with Section 6.6 of the Loan
Agreement.
2. The failure of the Borrowers to maintain, at all times since
July 1, 2000, a Fixed Charge Coverage of not less than 1.1 to
1.0, as required by Section 6.23(c) of the Loan Agreement;
3. The failure of the Borrowers to maintain, at all times since
July 1, 2000, a Funded Debt to EBITDA of not more than 4.0 to
1.0 during XXX Xxxx 30, 2000, as required by Section 6.23(d)
of the Loan Agreement;
4. The failure of the Borrowers to provide the Bank with physical
inventory listings as they were prepared, as required by
Section 6.24 of the Loan Agreement.
5. The failure of the Borrowers to complete timely the
improvements on the Florida Real Estate, as required by
Section 6.26 of the Loan Agreement.
6. The failure of the Borrowers to provide the Bank with a
listing of the Borrowers' contingent liabilities, as required
by Section 6.6 of the Loan Agreement.
7. The failure of the Borrowers to provide the Bank with
certificates from the Chief Financial Officer of Display
attesting to the correctness of the financial statements
provided to the Bank, as required by Section 6.6 of the Loan
Agreement.
8. The failure of the Borrowers to provide the Bank with the
certificates from the President and Chief Financial Officer of
Display, as required by Section 6.7(a) of the Loan Agreement.
9. The failure of the Borrowers to provide timely to the Bank the
monthly collateral reports as required by Section 6.8 of the
Loan Agreement.
10. The failure of the Borrowers to timely advise the Bank of any
change in the location of the Bank's Collateral as required by
Section 6.14 of the Loan Agreement;
29
11. The failure of Xxxxxxxx to maintain a Special Collection
Account or Accounts with the Bank and to deposit all proceeds
of the Collateral therein, as required by Sections 4.2 and
7.15 of the Loan Agreement;
12. The Borrowers' making of certain payments on Subordinated Debt
in violation of Section 7.16 of the Loan Agreement;
13. The Borrowers' failure to provide the Bank with periodic
reports accurately reflecting the Original Borrowers' Eligible
Inventory and Eligible Accounts as required by Section 6.8 of
the Loan Agreement, which failure has resulted in the
principal amount of the Revolving Loan exceeding the Aggregate
Loan Values (the "Overadvance"); and
14. The Original Borrowers' failure to repay immediately to Bank
the amount of the Overadvance as required by Section 2.1(f) of
the Loan Agreement.
30
EXHIBIT A
---------
LIST OF STOCKS AND OTHER EQUITY INTERESTS
(See Attached)
31
EXHIBIT B
---------
INVENTORY LOCATIONS
(See Attached)
32
EXHIBIT C
---------
CASH FLOW FORECASTS
(See Attached)
33
EXHIBIT D
---------
ASSETS OF XXXXXXXX DIGITAL DESIGNS, LTD.
(See Attached)
34
EXHIBIT E
---------
LIST OF MOTOR VEHICLES
(See Attached)
35
