AMENDMENT TO LOAN AND SECURITY

EX-10.162 7 exh10162.htm FORM OF AMENDMENT TO LOAN AND SECURITY AGT. AMENDMENT TO LOAN AND SECURITY Exhibit 10.162

FORM OF
AMENDMENT TO LOAN AND SECURITY
AGREEMENT AND PROMISSORY NOTES

THIS AMENDMENT TO LOAN AND SECURITY AGREEMENT AND PROMISSORY NOTES made this 13th day of July, 2001, between Ad Art Electronic Sign Corporation, a Florida corporation (the “Borrower”); and SouthTrust Bank, an Alabama banking corporation formerly doing business as SouthTrust Bank, National Association, with its principal office in Birmingham, Alabama (“Bank”), and amends (1) the Loan and Security Agreement by and among the Borrower and the Bank, among others, dated as of January 17, 2001 (the “Original Loan Agreement”), (2) the Promissory Note (Ad Art Electronic Sign Corporation) dated January 17, 2001 in the principal amount of $8,122,489.56 made by Borrower, among others, to order of Bank (the “Restructured Note”), and (3) the Winddown Note dated January 17, 2001 in the principal amount of $1,000,000.00 made by Borrower, among others, to order of Bank (the “Winddown Note”).

R E C I T A L S:

A. On January 17, 2001, the Borrower and the Bank entered into the Original Loan Agreement, the Restructured Note, and the Winddown Note.

B. The Borrower has requested that the Bank modify certain terms of the Original Loan Agreement, the Restructured Note, and the Winddown Note, and the Bank is willing to do so, but only upon the terms and conditions set forth herein.

NOW, THEREFORE, Bank and Borrower agree as follows:

Defined Terms. Capitalized terms used but not defined herein shall have the same meanings assigned to such terms in the Original Loan Agreement. The term “Agreement,” as used in the Original Loan Agreement, shall mean the Original Loan Agreement as modified hereby. The term “Borrower,” as used in the Original Loan Agreement, is hereby amended to delete Hamilton Digital Designs, Ltd., which has been released by the Bank at the Borrower’s request from any further liability for the Obligations.
Restructured Loan. Section 2.1(c) of the Original Loan Agreement is hereby amended by deleting the phrase “June 30, 2001” and replacing it with “July 13, 2001.”
Winddown Loan. Section 2.2(c) of the Original Loan Agreement is hereby amended by deleting the phrase “June 30, 2001” and replacing it with the phrase “July 13, 2001.”
Restructured Note. The Restructured Note is hereby amended by extending the scheduled maturity date of such note from June 30, 2001 until July 13, 2001.
Winddown Note. The Winddown Note is hereby amended by extending the scheduled maturity date of such note from June 30, 2001 until July 13, 2001.

WAIVER OF RIGHT TO TRIAL BY JURY. BORROWER AND BANK HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING OUT OF OR IN ANY WAY PERTAINING OR RELATING TO THIS AGREEMENT, THE ORIGINAL LOAN AGREEMENT, THE NOTES, THE LOAN DOCUMENTS, OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT OR (B) IN ANY WAY CONNECTED WITH OR PERTAINING OR RELATED TO OR INCIDENTAL TO ANY DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT, THE ORIGINAL LOAN AGREEMENT, THE NOTES, THE LOAN DOCUMENTS, OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR IN CONNECTION WITH THE TRANSACTIONS RELATED THERETO OR CONTEMPLATED THEREBY OR THE EXERCISE OF EITHER PARTY’S RIGHTS AND REMEDIES THEREUNDER, IN ALL OF THE FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. BORROWER AND BANK AGREE THAT EITHER OR BOTH OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE TRIAL BV JURY, AND THAT ANY DISPUTE OR CONTROVERSY WHATSOEVER BETWEEN THEM SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.

Miscellaneous.

Scope of Agreement. Except as expressly modified by this Agreement, the provisions of the Original Loan Agreement, the Revolving Note, the Term Note, 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 Original Loan Agreement, the Revolving Note, the Term Note, and other Loan Documents , nor affect or impair any rights or powers that the Bank may have under the Original Loan Agreement, the Revolving Note, the Term Note, and other Loan Documents in case of the Borrower’s 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 Events of Default specified in the recitals to the Original Loan Agreement. All agreements of and undertakings by the Borrower pursuant to this Agreement are intended to be cumulative with any other agreements or undertakings by the Borrower under the Original Loan Agreement, the Revolving Note, the Term Note, and other Loan Documents and are not intended to limit the generality of any such agreement or undertaking. The Borrower hereby ratifies and confirms the validity and effectiveness of the Original Loan Agreement, the Revolving Note, the Term Note, 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.
No Waiver. This Agreement is not intended to operate as, and shall not be construed as, a waiver of any Event of Default, whether known to Bank or unknown, as to which all rights of Bank shall remain reserved.

Governing Law. This Agreement shall be governed by, and shall be construed in accordance with, the laws of the State of Alabama, without regard to principles governing conflicts of law, and all applicable laws of the United States of America.

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.

Binding Nature. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

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.

Time of the Essence. Time is of the essence under this Agreement.

No Release of Borrower. Nothing herein is, or shall be construed as, a release of any of the obligations and liabilities of the Borrower to the Bank under the Original Loan Agreement, the Restructured Note, the Winddown Note, and other Loan Documents, as the same are amended hereby, or of any of the Collateral and Additional Collateral securing the Borrower’s obligations to the Bank.

[Remaining page intentionally left blank.]

IN WITNESS WHEREOF, the parties have hereunto set their hands and seals effective as of the date first above written.

	BORROWER:

	AD ART ELECTRONIC SIGN CORPORATION a Florida corporation


	By: James C. Taylor
	Its: Director


	BANK:

	SOUTHTRUST BANK



	By:
	Its:

STATE OF ______________                    )
                                                                   :
_________________ COUNTY               )

I, the undersigned, a notary public in and for said county in said state, hereby certify that , whose name as _______________ of Ad Art Electronic Sign 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, in his capacity as such _______________, executed the same voluntarily on the day the same bears date.

Given under my hand and official seal this day of , 2001.

Notary Public

[NOTARIAL SEAL] My commission expires:____________

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 _______________ 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 said instrument, he, in his capacity as such _______________, executed the same voluntarily on the day the same bears date.

Given under my hand and official seal this day of , 2001.

Notary Public

[NOTARIAL SEAL] My commission expires:____________