Exhibit 10.148
RESTRUCTURING AGREEMENT
This Restructuring Agreement (the "Agreement") is made and dated as of
this 17th day of January, 2001, by and among DISPLAY TECHNOLOGIES, INC., a
Nevada corporation ("Display"), AD ART ELECTRONIC SIGN CORPORATION, a Florida
corporation ("Ad Art"), ▇▇▇ ▇▇▇▇ INDUSTRIES, INC., a Florida corporation ("▇▇▇
▇▇▇▇"), ▇.▇. ▇▇▇▇▇▇▇ MANUFACTURING, INC., a Florida corporation ("▇▇▇▇▇▇▇
Manufacturing"), LA-MAN CORPORATION, a Nevada corporation ("La-Man"), ▇.▇.
▇▇▇▇▇▇▇ CORPORATION, a Florida corporation ("▇▇▇▇▇▇▇ Corporation"), ▇.▇. ▇▇▇▇▇▇▇
INDUSTRIES, INC., a Florida corporation ("▇▇▇▇▇▇▇ Industries"), VISION TRUST
MARKETING, INC., a Florida corporation ("Vision Trust"), ▇▇▇▇▇▇▇▇ SIGN GROUP,
INC., a Florida corporation ("▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇▇ DIGITAL DESIGNS, LTD., an
Ontario (Canada) corporation ("▇▇▇▇▇▇▇▇"), AMERIVISION OUTDOOR, INC., a Florida
corporation ("AmeriVision") (collectively, 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 (the "Bank").
W I T N E S S E T H:
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A. Pursuant to that Loan and Security Agreement dated as of June 2,
1999, as amended by Amendment No. 1 to Loan and Security Agreement dated March
3, 2000 (the "Amendment") by and among the Bank and the Original Borrowers and
by the Forbearance Agreement (as hereinafter defined) (as amended, the "Existing
Loan Agreement"), the Bank extended the following credit facilities to the
Borrowers, other than AmeriVision:
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
Borrowers, other than for AmeriVision, to the order to the Bank (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 Bank, 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, other than AmeriVision, to the order
of the Bank (the "Term Note");
3. Irrevocable Letter of Credit # SB-1326 in amount of up to
$2,500,000.00 dated August 1, 1997 issued by the Bank for the account
of the Borrowers, other than
AmeriVision (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 (the "1997 Indenture"); and
4. Irrevocable Letter of Credit # SB2128 in amount of up to
$2,546,028.00 dated June 17, 1999 issued by the Bank for the account of
the Borrowers, other than AmeriVision (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 (the "1999 Indenture")
(collectively, the "Existing Loans").
B. As more particularly set forth in the Joinder and Forbearance
Agreement dated as of September 26, 2000 by and among the Borrowers, other than
AmeriVision, and the Bank, as amended by that certain Amendment to Joinder and
Forbearance Agreement dated as of October 31, 2000 by and among the Borrowers,
other than AmeriVision, and the Bank (as amended, the "Forbearance Agreement"),
certain Events of Default have occurred under the Existing Loan Agreement. As a
result of such Events of Default, the Bank had no obligation under the Existing
Loan Agreement to make any further advances on the Revolving Note and had the
right 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
Existing Loan Agreement, the related loan documents and applicable law.
C. At the request of the Borrowers (other than AmeriVision), the Bank
agreed to and did enter into the Forbearance Agreement, pursuant to which the
Bank agreed, subject to certain conditions, to forbear from exercising its
rights and remedies under the Existing Loan Agreement and related loan documents
and to provide the Borrowers with additional revolving credit availability.
D. Certain defaults and Events of Default have occurred under the
Forbearance Agreement, including, without limitation, the Borrowers' failure to
comply with the maximum overadvance provisions set forth in the Forbearance
Agreement. As a result of such defaults and Events of Default, the Forbearance
Period (as such term is defined in the Forbearance Agreement) has expired, and
the Bank has no further obligation to forbear from exercising its rights and
remedies or to make any further credit available to any of the Borrowers.
E. The Borrowers have asked the Bank to restructure the Existing Loans
to, among other things, continue for a limited period of time to provide the
Borrowers with additional credit and to restructure the Existing Loans, and the
Bank is willing to do so, but only on the terms and conditions set forth herein.
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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. DEFINITIONS.
a. The term "Ad Art Loan Agreement" shall mean the Loan and
Security Agreement of even date herewith between Ad Art, ▇▇▇▇▇▇▇▇, and the Bank,
a true and correct copy of which is attached hereto as EXHIBIT A.
b. The term "Remaining Businesses Loan Agreement" shall mean
the Loan and Security Agreement of even date herewith by and among the Remaining
Businesses and the Bank, a true and correct copy of which is attached hereto as
EXHIBIT B.
c. The term "Remaining Businesses" means Display, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ Manufacturing, La-Man, ▇▇▇▇▇▇▇ Corporation, ▇▇▇▇▇▇▇ Industries,
▇▇▇▇▇▇▇▇, and AmeriVision.
d. The term "Loan Agreements" shall mean the Ad Art Loan
Agreement and the Remaining Businesses Loan Agreement.
e. The term "Loan Documents" shall mean this Agreement, the
Loan Agreements and any and all documents related to any of the Obligations
under the Loan Agreements, including, without limitation, the documents listed
on EXHIBIT C attached hereto.
f. The term "Collateral" shall mean any and all property,
whether real or personal, tangible or intangible, which secure any of the
Obligations under either of the Loan Agreements, including, without limitation,
the Ad Art Collateral, the ▇▇▇▇▇▇▇▇ Collateral, the Remaining Businesses
Collateral, and any other collateral described in the Loan Documents.
g. The term "Remaining Business Excluded Assets" means (a) the
assets of La-Man, (b) the Remaining Businesses' Accounts that are not Eligible
Accounts as of the date of this Agreement, (c) the Roseville Sign and (d) the
Holland Tunnel sign, as such assets are more particularly described on EXHIBIT D
attached hereto.
h. The term "Net Cash Proceeds" means:
(i) with respect to the assets of La-Man, the term
"Net Cash Proceeds" means (A) all cash proceeds collected and received by the
Borrower from the sale of any assets of La-Man, except for sales of inventory in
the ordinary course of business, LESS (B) the aggregate amount of La-Man's
Eligible Accounts and Eligible Inventory included in the Aggregate Loan Values
of the Restructured Revolving Loan as of the date such sale closes, and LESS (C)
any and all fees and expenses (including, without limitation, legal fees and
expenses, brokerage fees and
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commissions, and recording fees) incurred by Borrower or the Bank with respect
to such sale or sales, and LESS (D) any debts secured by a Lien on any of the
assets of La-Man that are being sold pursuant to such sale or sales that are
senior to any Lien of the Bank thereon;
(ii) with respect to the Roseville Sign, the term
"Net Cash Proceeds" means (A) all cash proceeds collected and received by the
Borrower from the sale thereof, LESS (B) any and all fees and expenses
(including, without limitation, legal fees and expenses, brokerage fees and
commissions, recording costs) incurred by Borrower or the Bank with respect to
such sale, and LESS (C) any debts secured by a Lien on the Roseville Sign that
are senior to any Lien of the Bank thereon; and
(iii) with respect to the Holland Tunnel Sign, the
term "Net Cash Proceeds" means (A) all cash proceeds collected by the Borrower
from the sale of the Holland Tunnel Sign, less (B) the indebtedness owed by
AmeriVision to Ad Art with respect to the Holland Tunnel Sign, and LESS (C) any
and all fees and expenses (including, without limitation, legal fees and
expenses, brokerage fees and commissions, recording costs) incurred by Borrower
or the Bank with respect to such sale, and LESS (D) any debts secured by a Lien
on the Holland Tunnel Sign that are senior to any Lien of the Bank thereon.
i. The term "Maturity Date" means the date on which
the Restructured Revolving Loan and the Term Loan mature, whether by
acceleration or otherwise.
j. The term "Roseville Sign" means the electronic sign,
including both the electronic and non-electronic components, that was
manufactured by Ad Art and sold to AmeriVision which has been installed on or
near, and is currently located on or near, the property of the Roseville Auto
Mall in Roseville, California.
k. The term "Holland Tunnel Sign" means the electronic sign,
including both the electronic and non-electronic components, that was
manufactured by Ad Art and sold to AmeriVision which has been installed near,
and is currently located near, the entrance to the Holland Tunnel in New York,
New York.
l. Capitalized terms used but not defined herein shall have
the same meanings assigned to such terms in the Ad Art Loan Agreement and the
Remaining Businesses Loan Agreement, as the case may be.
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 and remains 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
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all further notice, presentment, notice of dishonor or demand with respect to
the indebtedness evidenced by the Existing Loan Agreement and the related loan
documents;
b. ACKNOWLEDGMENT OF INDEBTEDNESS TO THE BANK. That, as of
January 17, 2001, (i) the Borrowers are indebted, jointly and severally, to the
Bank under the Revolving Loan in the principal amount of $13,122,489.56, plus
accrued interest thereon for legal fees and other costs and expenses due under
the Existing Loan Agreement and loan documents relating to the Revolving Loan;
(ii) the Borrowers are indebted, jointly and severally, to the Bank under the
Term Loan in the principal amount of $456,915.66, for accrued interest in the
amount of $2,270.59, and for legal fees and other costs and expenses due under
the Existing Loan Agreement and loan documents relating to the Term 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
knowledge of 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 Existing Loan Agreement and related
loan documents;
c. ACKNOWLEDGMENT OF INDEBTEDNESS DUE UNDER THE DEMAND NOTES.
That, as of January 11, 2001, (i) the outstanding principal indebtedness due
under the 1997 Demand Notes is $2,150,000.00, 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 $2,395,000.00, 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
Documents;
d. ACKNOWLEDGMENT OF LIENS ON COLLATERAL. That the Bank's
security interests in and liens on Collateral (as such term is defined in the
Existing Loan Agreement and Forbearance Agreement), and any and all rents and
proceeds therefrom, are and shall remain in full force and effect as security
for all the Existing Loans, and the same is hereby ratified and confirmed by the
Borrowers in all respects; and
e. 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 Existing 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.
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3. RESTRUCTURING OF EXISTING LOANS.
a. THE REVOLVING LOAN. The Revolving Loan will be restructured
into two loans as follows:
i. THE AD ART LOAN. $8,122,489.56 of the outstanding
balance of the Revolving Loan as of the date of this Agreement shall be
restructured into a new loan made by the Bank to Ad Art and ▇▇▇▇▇▇▇▇ (the "Ad
Art Loan") pursuant to the Ad Art Loan Agreement. Except for Ad Art and
▇▇▇▇▇▇▇▇, the Remaining Businesses shall not be liable on the Ad Art Loan
pursuant to the Ad Art Loan Agreement. The Ad Art Loan shall be secured by the
Ad Art Collateral and the ▇▇▇▇▇▇▇▇ Collateral. The Ad Art Loan shall be paid out
of the proceeds of the Orderly Liquidation of Ad Art and of the ▇▇▇▇▇▇▇▇
Collateral. The Ad Art Loan shall mature on June 30, 2001. The Ad Art Loan shall
be payable in accordance with the terms of the Ad Art Loan Agreement. The Ad Art
Loan is not a revolving loan.
ii. THE RESTRUCTURED REVOLVING LOAN. The remaining
balance of the Revolving Loan shall be restructured in accordance with the terms
and conditions of the Remaining Businesses Loan Agreement (the "Restructured
Revolving Loan"). Pursuant to the terms of the Remaining Businesses Loan
Agreement, the Bank shall make advances and overadvances to the Remaining
Businesses in an amount up to the lesser of (a) $14,877,510.44 or (b) the sum of
(i) the Aggregate Loan Value under the Remaining Businesses Loan Agreement, plus
(ii) $2,600,000.00. The Remaining Businesses shall use the proceeds of any and
all advances and overadvances made on the Restructured Revolving Loan solely and
strictly as provided in the Cash Flow Forecasts (as such term is defined in the
Remaining Businesses Loan Agreement) prepared by the Remaining Businesses and
furnished to the Bank. The Remaining Businesses covenant and agree that the
proceeds of the Restructured Revolving Loan shall not be used to fund the
Interim Operation or Orderly Liquidation of Ad Art. The Restructured Revolving
Loan shall be secured by all the Remaining Businesses Collateral. The
Restructured Revolving Loan shall mature on June 30, 2001. The Restructured
Revolving Loan will be payable in accordance with the terms of the Remaining
Businesses Loan Agreement.
b. THE TERM LOAN. Ad Art and ▇▇▇▇▇▇▇▇ shall be released from
liability for the Term Loan, as amended and restated pursuant hereto. Each of
the Remaining Businesses will continue to be liable for, and AmeriVision will
assume liability for, the repayment of the Term Loan in accordance with the
terms of the Term Note, as amended and restated pursuant hereto; provided,
however, that the maturity of the Term Note is hereby modified to June 30, 2001.
The Term Note shall be secured by all of the Collateral presently securing the
Term Note, including, without limitation, all of the Remaining Businesses
Collateral; provided however, that the Florida Real Estate shall continue to
secure only the Term Loan and shall not secure the repayment of any of the other
Obligations under either of the Loan Agreements.
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c. THE 1997 LETTER OF CREDIT. Ad Art and ▇▇▇▇▇▇▇▇ shall be
released from liability for any Obligations arising out of or pertaining to the
1997 Letter of Credit. The Remaining Businesses (including AmeriVision, which
shall assume liability for such letter of credit) shall remain liable, jointly
and severally, to Bank for any and all draws made against, or other Obligations
arising out of or pertaining to, the 1997 Letter of Credit.
d. THE 1999 LETTER OF CREDIT. Each of the Remaining Businesses
shall be released from liability for any Obligations arising out of or
pertaining to the 1999 Letter of Credit. Ad Art and ▇▇▇▇▇▇▇▇ shall remain
liable, jointly and severally, to Bank for any and all draws made against, or
other Obligations arising out of or pertaining to, the 1999 Letter of Credit.
4. THE AD ART WINDDOWN LOAN. The Bank shall make an additional loan of
up to One Million and No/100 Dollars ($1,000,000.00) to Ad Art and its
subsidiary, ▇▇▇▇▇▇▇▇, for the purpose of funding Ad Art's Interim Operations and
Orderly Liquidation (the "Ad Art Winddown Loan"). The Ad Art Winddown Loan is
not a revolving loan. Advances on the Ad Art Winddown Loan shall be made to Ad
Art in accordance with the Ad Art Winddown Budget. The Ad Art Winddown Loan
shall be secured by all of the Ad Art Collateral and the ▇▇▇▇▇▇▇▇ Collateral.
The Ad Art Winddown Loan shall mature on June 30, 2001. The Ad Art Winddown Loan
shall be payable in accordance with the terms of the Ad Art Loan Agreement.
5. COLLATERAL.
A. COLLATERAL SECURING THE AD ART OBLIGATIONS. The Ad Art
Obligations shall be secured by all of the Ad Art Collateral and the ▇▇▇▇▇▇▇▇
Collateral.
B. COLLATERAL SECURING THE REMAINING BUSINESSES OBLIGATIONS.
i. EXISTING COLLATERAL. The Remaining Businesses
Obligations shall be secured by all of the Remaining Businesses Collateral that
currently secure the Loans, including, without limitation, all the Remaining
Businesses Collateral; provided, however, that the Florida Real Estate shall
continue to secure only the Term Loan, as restructured hereby, and shall not
secure any of the other Obligations under either of the Loan Agreements.
ii. ADDITIONAL COLLATERAL. As security for all the
Remaining Businesses Obligations, ▇▇▇▇▇▇▇▇ shall ▇▇▇▇▇ the Bank Liens on (1) the
▇▇▇▇▇▇▇▇ Real Estate, junior only to the existing mortgage liens of First Union
National Bank and BB&T thereon, (2) all furniture, fixtures and equipment of
▇▇▇▇▇▇▇▇, and (3) all personal property of AmeriVision, including, without
limitation, all of its inventory, accounts, equipment, documents, chattel paper,
instruments and the proceeds thereof.
iii. ▇▇▇▇▇▇▇ ▇▇▇▇▇ GUARANTY. The repayment of the
Remaining Businesses Obligations shall be personally guaranteed, in a limited
amount, by ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital (the "▇▇▇▇▇▇▇ ▇▇▇▇▇ Guaranty"). As more
specifically provided in the ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Guaranty, the amount of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Guaranty shall be limited to the
principal sum of $1,750,000.00, less (a) fifty cents (50(cent)) for each dollar
of Net Cash Proceeds collected by the Remaining Businesses on the Remaining
Businesses Excluded Assets up to $1,000,000.00, for a maximum reduction of
liability under the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Guaranty of $500,000.00, and less (b)
thirty-three and one-third cents (33 1/3(cent)) for each dollar of Net Cash
Proceeds collected by the Remaining Businesses on the Remaining Businesses
Excluded Assets in excess of $1,000,000.00 up to $2,500,000.00, for a maximum
additional reduction of liability under the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Guaranty of
$500,000.00.
C. APPLICATION OF PROCEEDS OF COLLATERAL.
i. SPECIAL COLLECTION ACCOUNTS. In accordance with
the terms of the Loan Agreements, the Remaining Businesses and Ad Art shall make
all deposits into their respective Special Collection Accounts. Except as
expressly provided below, the deposits made by the Remaining Businesses into
their respective Special Collection Accounts shall be applied, in accordance
with the Remaining Businesses Loan Agreement, against the Restructured Revolving
Loan. Except as expressly provided below, the deposits made by Ad Art into its
Special Collection Account shall be applied against the Ad Art Loan, the Ad Art
Winddown Loan, to fund a reserve with respect to the 1999 Letter of Credit, and
to fund any other Ad Art Obligations.
ii. APPLICATION OF REMAINING BUSINESSES EXCLUDED
ASSETS. The Net Cash Proceeds received by the Remaining Businesses from the
Remaining Businesses Excluded Assets shall be applied, first, against the
Restructured Revolving Loan and, second, against the Term Loan, and, third, to
any other of the Remaining Businesses Obligations.
iii. APPLICATION OF NET PROCEEDS FROM SALE OF
▇▇▇▇▇▇▇▇. The Net Cash Proceeds receiving from the sale of the ▇▇▇▇▇▇▇▇
Collateral shall be applied against the Ad Art Loan, the Ad Art Winddown Loan,
or to fund a reserve of respect to the 1999 Letter of Credit as the Bank
determines in its sole and absolute discretion.
6. PAYMENT OF LOAN RESTRUCTURING FEE. To induce the Bank to enter into
the Agreement, the Remaining Businesses shall, upon the execution and delivery
of this Agreement, pay in Cash to the Bank a loan restructuring fee in the
amount of One Hundred Thousand and No/100 Dollars (U.S. $100,000.00).
7. PAYOFF OF LOANS. The Bank agrees that, if and only if the Remaining
Businesses, by the Maturity Date of the Restructured Revolving Loan and the Term
Loan, pay in full both the Restructured Revolving Loan and the Term Loan and pay
all obligations due to the Bank with respect to the 1997 Letter of Credit or
otherwise cause the Bank to be released from all obligations with respect to the
1997 Letter of Credit, or provide the Bank with a backup letter of credit
reasonably satisfactory to Bank, no termination fee nor non-payment fee shall be
due to the Bank hereunder or under the Remaining Businesses Loan Agreement. If,
however,
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the Remaining Businesses fail to pay in full both the Restructured Revolving
Loan and the Term Loan and pay all obligations due to the Bank with respect to
the 1997 Letter of Credit or otherwise cause the Bank to be released from all
obligations with respect to the 1997 Letter of Credit or provide the Bank with a
backup letter of credit reasonably satisfactory to Bank on or before the
Maturity Date of the Restructured Revolving Loan and the Term Loan, then the
Remaining Businesses shall pay to Bank on the Maturity Date a non-payment fee
equal to $250,000.00 in cash.
8. PAYMENT OF LEGAL FEES.
a. Upon the Borrowers' execution and delivery of this
Agreement, and monthly thereafter, the Remaining Businesses shall pay all of the
fees and expenses (including, without limitation, reasonable attorneys' fees)
incurred by the Bank and the Participant in connection with the preparation,
administration, amendment, modification, renewal, extension, or enforcement of
this Agreement, the Existing Loan Agreement, the Existing Loans, and the
transactions described herein and therein.
b. Ad Art and ▇▇▇▇▇▇▇▇ will, on demand, reimburse the Bank and
the Participant, respectively, for all expenses, including the fees and expenses
of legal counsel for the Bank, incurred after the date of this Agreement in
connection with the preparation, administration, amendment, modification,
renewal, extension, or enforcement of this Agreement, the Ad Art Loan Agreement,
and the Ad Art Loan Documents and any other documents related to this Agreement
and the collection or attempted collection of the Ad Art Obligations. If timely
reimbursement of such fees and expenses is not made by Ad Art or ▇▇▇▇▇▇▇▇, then
the Bank shall have the right to draw funds from the Ad Art Loan and the Ad Art
Winddown Loan in amounts sufficient to pay such fees and expenses.
c. The Remaining Businesses will, on demand, reimburse the
Bank and the Participant, respectively, for all expenses, including the fees and
expenses of legal counsel for the Bank incurred after the date of this Agreement
in connection with the preparation, administration, amendment, modification,
renewal, extension, or enforcement of this Agreement, the Remaining Businesses
Loan Agreement, and the Remaining Businesses Loan Documents and any other
documents related to this Agreement and the collection or attempted collection
of the Remaining Businesses Obligations. If timely reimbursement of such fees
and expenses is not made by the Remaining Businesses, then the Bank shall have
the right to draw funds from the Restructured Revolving Loan in amounts
sufficient to pay such fees and expenses.
9. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby
acknowledges, represents and warrants to Bank as follows: (i) Borrower has been
fully advised by legal counsel of its rights and responsibilities under this
Forbearance Agreement and of the legal effect hereof; (ii) Borrower has read and
fully understands the contents of this Restructuring Agreement, and has freely
and voluntarily executed this Restructuring Agreement; (iii) Borrower is
sophisticated and knowledgeable in financial matters, both generally and with
respect to transactions of the
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type described in this Agreement, the Loan Agreements and the other Loan
Documents, and the documents, instruments and transactions contemplated thereby;
(iv) Borrower has received and has independently reviewed and evaluated, a copy
of the Restructuring Agreement and all other documents and instruments executed
or delivered in connection therewith, and fully understands the transactions
contemplated thereby; (v) Borrower has made such independent review and
evaluation, as well as all other decisions pertaining to the execution and
delivery of this Restructuring Agreement, without any reliance upon any oral or
written representation, warranty, advice or analysis of any kind whatsoever from
Bank, however obtained; (vi) Borrower has determined, following such independent
review and evaluation, that the benefits to it of the transactions contemplated
by this Restructuring Agreement are direct and substantial, and that it is in
the best interests of Borrower to execute and deliver this Restructuring
Agreement; (vii) the individuals signing this Restructuring Agreement on behalf
of Borrower are duly authorized and fully empowered to do so; (viii) the
consideration flowing to Borrower under this Restructuring Agreement is an all
respects substantial and sufficient; (ix) this Restructuring Agreement has been
duly and validly executed and delivered by Borrower and is the valid and legally
binding obligation of Borrower, enforceable in accordance with its terms; (x)
all of the Borrowers are in good standing and existence and that each of them is
authorized to enter into the transactions described herein; (xi) Certified
Maintenance Service, Inc. has been dissolved and all of its assets have been
distributed to and are owned by ▇▇▇ ▇▇▇▇; and (xii) on or about December 4,
2000, Display duly exercised its rights to and did convert its holdings of
preferred stock issued by AmeriVision into shares of common stock.
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
RESTRUCTURING OF THE LOANS BY THE BANK PURSUANT TO THIS AGREEMENT, 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 THE BANK IS PAID IN FULL ON THE INDEBTEDNESS AS EVIDENCED BY
THIS AGREEMENT OR THE LOAN AGREEMENTS, (A) 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, (B) BE THE SUBJECT OF ANY ORDER FOR RELIEF
ISSUED UNDER THE BANKRUPTCY CODE, (C) 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, (D) HAVE
SOUGHT OR CONSENTED TO OR ACQUIESCED IN THE APPOINTMENT OF ANY TRUSTEE,
RECEIVER, CONSERVATOR, LIQUIDATOR, (E) 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, THE 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 THE BANK AS PROVIDED
IN THIS
10
AGREEMENT, THE LOAN AGREEMENTS, OR THE LOAN DOCUMENTS, AND AS OTHERWISE PROVIDED
BY LAW, INCLUDING, WITHOUT LIMITATION, ITS RIGHT TO FORECLOSE UPON AND REPOSSESS
THE COLLATERAL. 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 THE BANK FOR SUCH RELIEF.
11. RELEASE. EACH OF THE BORROWERS HEREBY RELEASES, ACQUITS, AND
FOREVER DISCHARGES THE BANK, AND EACH AND EVERY PAST AND PRESENT SUBSIDIARY,
AFFILIATE, STOCKHOLDER, OFFICER, DIRECTOR, AGENT, SERVANT, EMPLOYEE,
REPRESENTATIVE, AND ATTORNEY OF THE BANK, AND FURTHER RELEASES, ACQUITS AND
FOREVER DISCHARGES 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 (COLLECTIVELY, THE "RELEASED
PARTIES"), OF AND FROM ANY AND ALL CLAIMS, ACTIONS, CAUSES OF ACTION, SUITS,
DAMAGES, DEBTS, LIENS, OBLIGATIONS, LIABILITIES, JUDGMENTS, EXECUTIONS DEMANDS,
LOSSES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES) OF ANY KIND, CHARACTER,
OR NATURE WHATSOEVER, KNOWN OR UNKNOWN, DIRECT OR INDIRECT, FIXED OR CONTINGENT,
AT LAW OR IN EQUITY, WHETHER HERETOFORE OR HEREAFTER ARISING, FOR OR BECAUSE OF
ANY MATTER OR THINGS DONE, OMITTED OR SUFFERED TO BE DONE BY ANY OF THE RELEASED
PARTIES, ON OR PRIOR TO THE DATE OF THIS AGREEMENT, OR IN ANY WAY DIRECTLY OR
INDIRECTLY ARISING OUT OF OR ANY WAY RELATED TO THIS AGREEMENT, ANY OF THE LOAN
DOCUMENTS, ANY INSTRUMENT EXECUTED ON OR PRIOR TO THE DATE OF THIS AGREEMENT, OR
ANY OF THE LOANS, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS, LIABILITIES OR
OBLIGATIONS ARISING WITH RESPECT TO SETTLEMENT OR RESTRUCTURING NEGOTIATIONS
(ALL OF THE FOREGOING SHALL BE REFERRED TO HEREINAFTER AS THE "RELEASED
MATTERS"). EACH OF THE BORROWERS REPRESENTS AND WARRANTS TO THE BANK THAT IT HAS
NOT TRANSFERRED, ASSIGNED OR OTHERWISE CONVEYED, OR PURPORTED TO TRANSFER,
ASSIGN OR OTHERWISE CONVEY, ANY RIGHT, TITLE OR INTEREST OF THE BORROWERS IN ANY
RELEASED MATTER TO ANY OTHER PERSON AND THAT THE FOREGOING CONSTITUTES A FULL
AND COMPLETE RELEASE OF ALL RELEASED MATTERS. 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 3,
4 and 5(c) of this Agreement, and the enforceability of the terms and conditions
of Sections 3, 4 and 5(c) 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;
11
ii. the Ad Art Loan Agreement executed by Ad Art
and ▇▇▇▇▇▇▇▇, along with all of the exhibits
to such agreement;
iii. the Remaining Businesses Loan Agreement
executed by each of the Remaining
Businesses, along with all of the exhibits
to such agreement; and
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 described in
the Loan Agreements and in this Agreement.
b. the Remaining Businesses 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;
c. the receipt by Bank of the Participant's written
consent to such transactions contemplated by this
Agreement that require, as the Bank in its sole and
absolute discretion determines, the prior written
consent of the Participant under the Participation
Agreement;
d. all representations and warranties of the Borrowers
in the Loan Agreements and herein shall be accurate
and complete in all respects on and as of the date of
this Agreement; and
e. the delivery of all documents, instruments and things
required under either of the Loan Agreements.
13. MISCELLANEOUS.
a. CONSTRUCTION. The provisions of this Agreement shall be in
addition to those of the Loan Agreements, any guaranty, pledge or security
agreement, note or other evidence of liability held by the Bank, all of which
are incorporated herein and shall be construed as complementary to each other.
Nothing herein contained shall prevent the Bank from enforcing any or all other
notes, guaranties, pledges or security agreements in accordance with their
respective terms.
b. FURTHER ASSURANCE. From time to time, the Borrowers will
execute and deliver to the Bank such additional documents and will provide such
additional information as the Bank may reasonably require to carry out the terms
of this Agreement and be informed of the status and affairs of the Borrowers.
12
c. ENFORCEMENT AND WAIVER BY THE BANK. The Bank shall have the
right at all times to enforce the provisions of this Agreement, the Loan
Agreements, and the other Loan Documents in strict accordance with the terms
hereof and thereof, notwithstanding any conduct or custom on the part of the
Bank in refraining from so doing at any time or times. The failure of the Bank
at any time or times to enforce its rights under such provisions, strictly in
accordance with the same, shall not be construed as having created a custom in
any way or manner contrary to specific provisions of this Agreement or as having
in any way or manner modified or waived the same. All rights and remedies of the
Bank are cumulative and concurrent and the exercise of one right or remedy shall
not be deemed a waiver or release of any other right or remedy.
d. NOTICES. Any notices or consents required or permitted by
this Agreement shall be in writing and shall be deemed delivered if delivered in
person or if sent by certified mail, postage prepaid, return receipt requested,
or telegraph, or facsimile, as follows, unless such address is changed by
written notice hereunder:
If to Ad Art or ▇▇▇▇▇▇▇▇:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Partners, L.P.
c/o Raymond ▇▇▇▇▇ Capital, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
If to the Remaining Businesses or any of them:
13
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Partners, L.P.
c/o Raymond ▇▇▇▇▇ Capital, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
If to the Bank:
SouthTrust Bank
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile #(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇- Special Assets
Department
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Rose & White LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile #(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇, Esq.
e. PARTICIPATION. Notwithstanding any other provision of this
Agreement, the Borrower understands that the Bank has entered into a
participation agreement with the Participant and may enter into other
participation agreements with other participants whereby
14
the Bank will allocate certain percentages of its commitment to them. The
Borrower acknowledges that, for the convenience of all parties, this Agreement
is being entered into with the Bank only and that its obligations under this
Agreement are undertaken for the benefit of, and as an inducement to, the
Participant and to any other participant as well as the Bank, and each of the
other Borrowers hereby grants to the Participant and each other participant, to
the extent of its participation in the Obligations, the right to set off deposit
accounts maintained by the respective Borrowers with such participant. Each of
the Borrowers authorizes the Bank to disclose financial and other information
regarding the Borrower to the Participant and other potential participants.
f. GOVERNING LAW. This Agreement is entered into and
performable in Jefferson County, Alabama, and the substantive Laws of the United
States and the State of Alabama, without giving effect to its principles of
conflict of laws, shall govern the construction of this Agreement and the
documents executed and delivered pursuant hereto, and the rights and remedies of
the parties hereto and thereto, except to the extent that the location of any
Collateral in a state or jurisdiction other than Alabama requires that the
perfection of the Bank's security interest hereunder, and the enforcement of
certain of the Bank's remedies with respect to the Collateral, be governed by
the laws of such other state or jurisdiction.
g. SUBMISSION TO JURISDICTION; WAIVERS.
i. EACH OF THE BORROWERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL
JURISDICTION OF THE COURTS OF THE STATE OF
ALABAMA, THE COURTS OF THE UNITED STATES OF
AMERICA FOR THE NORTHERN DISTRICT OF
ALABAMA, AND APPELLATE COURTS FROM ANY
THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING
MAY BE BROUGHT IN SUCH COURTS, AND WAIVES
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN
15
INCONVENIENT COURT AND AGREES NOT TO PLEAD
OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH
ACTION OR PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR
FORM OF MAIL), POSTAGE PREPAID, TO THE
COMPANY AT ITS ADDRESS SET FORTH IN SECTION
13(D) OR AT SUCH OTHER ADDRESS OF WHICH THE
BANK SHALL HAVE BEEN NOTIFIED PURSUANT
THERETO; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE
RIGHT TO EFFECT SERVICE OF PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT TO ▇▇▇ IN ANY OTHER JURISDICTION.
ii. EACH OF THE BORROWERS AND THE BANK HEREBY:
(A) IRREVOCABLY AND UNCONDITIONALLY WAIVE THE
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING OR COUNTERCLAIM OF ANY TYPE AS TO
ANY MATTER ARISING DIRECTLY OR INDIRECTLY
OUT OF OR WITH RESPECT TO THIS AGREEMENT,
THE LOAN AGREEMENTS, THE NOTES, ANY OF THE
OTHER LOAN DOCUMENTS, OR ANY OTHER DOCUMENT
EXECUTED IN CONNECTION HEREWITH OR
THEREWITH; AND
(B) AGREE THAT ANY OF THEM MAY FILE A COPY OF
THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE KNOWING, VOLUNTARY AND
BARGAINED-FOR AGREEMENT BETWEEN THE PARTIES
IRREVOCABLY TO WAIVE TRIAL BY JURY, AND THAT
ANY DISPUTE OR CONTROVERSY OF ANY KIND
WHATSOEVER BETWEEN THEM SHALL INSTEAD BE
TRIED IN A COURT OF COMPE-
16
TENT JURISDICTION BY A JUDGE SITTING WITHOUT
A JURY.
h. BINDING EFFECT, ASSIGNMENT. This Agreement shall inure to
the benefit of, and shall be binding upon, the respective successors and
permitted assigns of the parties hereto. The Borrowers have no right to assign
any of their rights or obligations hereunder without the prior written consent
of the Bank.
i. ENTIRE AGREEMENT, AMENDMENTS. This Agreement, including the
Exhibits hereto, all of which are hereby incorporated herein by reference, and
the documents executed and delivered pursuant hereto, constitute the entire
agreement between the parties, and may be amended only by a writing signed on
behalf of each party.
j. SEVERABILITY. If any provision of this Agreement, the Loan
Agreements, the Notes, or the Loan Documents shall be held invalid under any
applicable Laws, such invalidity shall not affect any other provision of this
Agreement or such other instrument or agreement that can be given effect without
the invalid provision, and, to this end, the provisions hereof are severable.
k. HEADINGS. The paragraph and subparagraph headings hereof
are inserted for convenience of reference only, and shall not alter, define, or
be used in construing the text of such paragraphs or subparagraphs.
l. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute but one and the same instrument.
m. SEAL. This Agreement is intended to take effect as an
instrument under seal.
n. INTERPRETATION. This Agreement, the Loan Agreements, and
the Loan Documents shall be construed liberally to 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, the Loan
Agreements, and the Loan Documents 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, the Loan Agreements, or any
of the Loan Documents 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, the Loan Agreements, or the Loan Documents shall be admissible
as evidence of the meaning of this Agreement, the Loan Agreements, or any of the
Loan Documents. Should any provision of this Agreement, the Loan Agreements, 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
17
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 of this Agreement, the Loan Agreements, and
the Loan Documents.
o. NO FURTHER COMMITMENT. 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, except as expressly set forth herein and in the Loan
Agreements, 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 Ad Art Obligations or the Remaining
Businesses Obligations other than as expressly provided in this Agreement and
the Loan Agreements.
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.
q. USURY. In no event shall this or any other provision herein
or in the Loan Agreements or other Loan Documents permit the collection of any
interest which would be usurious under the laws of the State of Alabama. If any
such interest in excess of the maximum rate allowable under applicable law has
been collected, each of the Borrowers agrees that the amount of interest
collected above the maximum rate permitted by applicable law, together with
interest thereon at the rate required by applicable law, shall be refunded to
the Borrowers, and each of the Borrowers agrees to accept such refund, or, at
the Borrowers' option, such refund shall be applied as a principal payment
hereunder.
18
IN WITNESS WHEREOF, the parties have hereunto set their hands
and seals effective as of the date first above written.
DISPLAY TECHNOLOGIES, INC.,
a Nevada corporation
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: President
▇▇▇ ▇▇▇▇ INDUSTRIES, INC.,
a Florida corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Chairman
▇. ▇. ▇▇▇▇▇▇▇ MANUFACTURING, INC.,
a Florida corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: President
LA-MAN CORPORATION,
a Nevada corporation
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Chairman
19
▇. ▇. ▇▇▇▇▇▇▇ CORPORATION,
a Florida corporation
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Vice President
▇. ▇. ▇▇▇▇▇▇▇ INDUSTRIES, INC.,
a Florida corporation
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Vice President
VISION TRUST MARKETING, INC.,
a Florida corporation
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: President
▇▇▇▇▇▇▇▇ SIGN GROUP, INC.
a Florida corporation
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Chairman
▇▇▇▇▇▇▇▇ DIGITAL DESIGNS, LTD.
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Chairman
20
AMERIVISION OUTDOOR, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Vice President
SOUTHTRUST BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Its: Vice President
STATE OF GEORGIA )
:
▇▇▇▇▇▇ COUNTY )
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, whose name as President 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 11th day of
January, 2001.
[signed]
-------------------------
Notary Public
[NOTARIAL SEAL] My commission expires: [Notary Stamp appears here]
STATE OF GEORGIA )
:
▇▇▇▇▇▇ COUNTY )
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 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 11th day of
January, 2001.
[signed]
-------------------------
Notary Public
[NOTARIAL SEAL] My commission expires:[Notary Stamp appears here]
STATE OF GEORGIA )
:
▇▇▇▇▇▇ COUNTY )
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, whose name as Chairman of
▇▇▇ ▇▇▇▇ 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 11th day of
January, 2001.
[signed]
-------------------------
Notary Public
[NOTARIAL SEAL] My commission expires: [Notary Stamp appears here]
STATE OF GEORGIA )
:
▇▇▇▇▇▇ COUNTY )
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, whose name as President of
▇.▇. ▇▇▇▇▇▇▇ 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 11th day of
January, 2001.
[signed]
-------------------------
Notary Public
[NOTARIAL SEAL] My commission expires: [Notary Stamp appears here]
STATE OF GEORGIA )
:
▇▇▇▇▇▇ COUNTY )
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 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 11th day of
January, 2001.
[stamp]
-------------------------
Notary Public
[NOTARIAL SEAL] My commission expires: [Notary Stamp appears here]
STATE OF GEORGIA )
:
▇▇▇▇▇▇ COUNTY )
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, whose name as Vice
President of ▇.▇. ▇▇▇▇▇▇▇ 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 11th day of
January, 2001.
[signed]
-------------------------
Notary Public
[NOTARIAL SEAL] My commission expires: [Notary Stamp appears here]
STATE OF GEORGIA )
:
▇▇▇▇▇▇ COUNTY )
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, whose name as Vice
President of ▇.▇. ▇▇▇▇▇▇▇ 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 11th day of
January, 2001.
[signed]
-------------------------
Notary Public
[NOTARIAL SEAL] My commission expires: [Notary Stamp appears here]
STATE OF GEORGIA )
:
▇▇▇▇▇▇ COUNTY )
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, 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 11th day of
January, 2001.
[signed]
-------------------------
Notary Public
[NOTARIAL SEAL] My commission expires: [Notary Stamp appears here]
STATE OF GEORGIA )
:
▇▇▇▇▇▇ COUNTY )
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, whose name as Chairman of
▇▇▇▇▇▇▇▇ 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 11th day of
January, 2001.
[signed]
-------------------------
Notary Public
[NOTARIAL SEAL] My commission expires: [Notary Stamp appears here]
STATE OF GEORGIA )
:
▇▇▇▇▇▇ COUNTY )
I, the undersigned, a notary public in and for said county in
said state, hereby certify that J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, whose name as Chairman of
▇▇▇▇▇▇▇▇ 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 11th day of
January, 2001.
[signed]
-------------------------
Notary Public
[NOTARIAL SEAL] My commission expires: [Notary Stamp appears here]
STATE OF GEORGIA )
:
▇▇▇▇▇▇ COUNTY )
I, the undersigned, a Notary Public in and for said County in
said State, hereby certify that ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ whose name as Vice President of
AmeriVision Outdoor, Inc., 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 official seal this 11th day of
January, 2001.
[signed]
-------------------------
Notary Public
[NOTARIAL SEAL] My commission expires: [Notary Stamp appears here]
STATE OF ALABAMA )
:
JEFFERSON COUNTY )
I, the undersigned, a Notary Public in and for said County in
said State, hereby certify that ▇▇▇▇▇▇ ▇▇▇▇▇, whose name as Vice President 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 official seal this 18th day of
January, 2001.
[signed]
-------------------------
Notary Public
[NOTARIAL SEAL] My commission expires: [Notary Stamp appears here]
EXHIBIT A
AD ART LOAN AGREEMENT
EXHIBIT B
REMAINING BUSINESSES LOAN AGREEMENT
EXHIBIT C
LIST OF LOAN DOCUMENTS
EXHIBIT D
DESCRIPTION OF AD ART INELIGIBLE RECEIVABLES
EXHIBIT E
DESCRIPTION OF REMAINING BUSINESSES EXCLUDED ASSETS