ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (the "Agreement") is made this ___ day of
February, 1996 by and between COLUMBIA SPORTSWEAR COMPANY ("Columbia
Sportswear"), XXXXXXX X. XXXXX and XXX XXXXXXXXX (together, the "Borrower"), and
FIRST INTERSTATE BANK OF OREGON, N.A. (the "Bank").
RECITALS:
A. Bank loaned Columbia Sportswear the principal sum of Three Million
Four Hundred Sixteen Thousand and no/100 Dollars ($3,416,000.00) (the "Loan")
pursuant to that certain loan agreement dated May 19, 1994 between Bank and
Columbia Sportswear (with any amendments, the "Loan Agreement"). The Loan was
further evidenced by that certain promissory note dated May 19, 1994 in the
original principal sum of $3,416,000.00 made by Columbia Sportswear in favor of
Bank and with an original maturity date of June 1, 2009 (with any amendments,
extensions or renewals, the "Note").
B. The Loan is secured by a commercial deed of trust dated May 19,
1994 granted by Columbia Sportswear, naming Chicago Title Insurance Company as
trustee in favor of Bank as beneficiary (with any amendments, the "Trust Deed").
The Trust Deed encumbers, among other things, the real property described in
Exhibit A attached to this Agreement and by this reference made a part of it
(the "Real Property"). The Trust Deed was recorded May 19, 1994, Recorder's Fee
No. 94-079047, Multnomah County, Oregon, records.
C. Borrower acquired the Real Property and assumed the obligations of
Columbia Sportswear under the Loan Documents (as defined below) pursuant to that
certain Assumption Agreement dated June 8, 1994 between Columbia Sportswear,
Bank and Borrower.
D. In connection with Columbia Sportswear's re-acquisition of the Real
Property, Borrower and Columbia Sportswear desire for Columbia Sportswear to
assume the obligations of Borrower to Bank under the Loan Documents (as defined
below). Bank is willing to permit such an assumption under the terms of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, which are
expressly incorporated in and made a part of this Agreement, and of the mutual
covenants, conditions and promises specified in this Agreement, and for other
good and valuable consideration, Columbia Sportswear, Borrower, and Bank agree
as follows:
1. Definitions. The term "Loan Documents" shall mean all documents
executed in connection with or contemplated by the Loan, together with all
amendments to such documents. Loan Documents include, without limitation, the
Note, the Loan Agreement, and the Trust Deed.
Page 1 - ASSUMPTION AGREEMENT
Capitalized terms which are defined in the foregoing recitals or other
provisions of this Agreement shall have the meaning given those terms in such
recitals or other provisions. Capitalized terms which are not defined in this
Agreement and are defined in the Loan Documents shall have the meaning given
those terms in the applicable Loan Documents.
2. Agreement Fee. As part of the consideration to induce Bank to enter
into this Agreement, Columbia Sportswear, upon execution of this Agreement,
shall pay to Bank a fee of One Thousand and No/100 Dollars ($1,000.00).
3. Amounts Due on Loan Documents. As of the date hereof, there remains
due and owing on the Note and other Loan Documents an unpaid principal balance
of Three Million Two Hundred Thirty Thousand Sixty-Nine and 22/100 Dollars
($3,230,069.22).
4. Assumption of Liability. Columbia Sportswear assumes and agrees to
pay and perform all the liabilities and obligations of borrower as evidenced in
the Loan Agreement, Note, Trust Deed, and other Loan Documents and to abide by
all the warranties and terms thereof. Columbia Sportswear agrees that payments
due Bank under the Note and other Loan Documents shall be paid directly to Bank
or through an escrow satisfactory to Bank. Notwithstanding anything contained in
the Loan Agreement, Note, Trust Deed and other Loan Documents to the contrary,
Bank shall now have full recourse to Columbia Sportswear and its assets to
recover all amounts due and owing under the Loan Agreement, Note, Trust Deed and
other Loan Documents. Bank hereby consents to the transfer of the Real Property
by Borrower to Columbia Sportswear.
5. Borrower Released. Bank agrees that the Borrower is hereby
discharged and released from liability accruing after the date hereof under the
Loan Agreement, Note and other Loan Documents.
6. Financial Information. Within one hundred twenty (120) days of
fiscal year-end, Columbia Sportswear shall provide to Bank annually CPA-audited
financial statements. All financial statements shall be prepared in accordance
with generally accepted accounting principles in form and substance acceptable
to Bank and certified to be complete and accurate in all respects.
7. Debt Service Coverage Ratio. During the term of the Loan, the debt
service coverage ratio ("DSCR") shall not be less than 1.5:1.0. If the DSCR
falls below the 1.5:1.0 ratio, the Bank may, upon thirty (30) days' written
notice specifying the amount of the required reduction, require Columbia
Sportswear to reduce the then outstanding principal balance of the Note by such
amount that the minimum 1.5:1.0 ratio will be achieved.
The DSCR shall mean the ratio of (a) the sum of net profit after
Subchapter-S tax distributions plus noncash charges (such as depreciation) plus
interest expense divided by (b) the sum of scheduled maturities of long term
debt and capitalized lease payments plus interest expense plus nontax
Subchapter-S distributions.
Page 2 - ASSUMPTION AGREEMENT
8. Default. Upon any default by Columbia Sportswear under the terms of
this Agreement, the Loan Agreement, the Note, the Trust Deed or Loan Documents
or upon any default by Columbia Sportswear of any of its obligations to Bank,
Bank shall have all rights and remedies available to it under this Agreement,
the Loan Agreement, the Note, Trust Deed and other Loan Documents, and at law or
in equity, and all rights and remedies shall be cumulative and not alternative.
The rights and remedies include, without limitation, declaring the entire
outstanding balance of the Loan due and payable.
9. Attorneys Fees. In consideration of this Agreement, Columbia
Sportswear agrees to pay the indebtedness evidenced by the Note, to perform each
and all of the conditions and covenants required to be performed by Columbia
Sportswear under this Agreement, the Loan Agreement, the Note, Trust Deed and
all other Loan Documents, and to pay all costs of Bank in connection with
preparation and recording or breach of this Agreement, including, but not
limited to, title insurance premiums, attorney fees, recording fees, escrow fees
and taxes.
As used in this Agreement or any other Loan Document, "attorney
fees" shall include attorneys fees, if any, which shall be incurred whether or
not legal action is commenced and any such fees incurred at trial, arbitration,
interpleader, bankruptcy, hearing, or any judicial proceeding, and on appeal.
10. Arbitration Program.
(a) Binding Arbitration. Upon the demand of any party
("Party/Parties"), to a Document (as defined below), whether made before the
institution of any judicial proceeding or not more than sixty (60) days after
service of a complaint, third party complaint, cross-claim or counterclaim or
any answer thereto or any amendment to any of the above, any Dispute (as defined
below) shall be resolved by binding arbitration in accordance with the terms of
this Arbitration Program. A "Dispute" shall include any action, dispute, claim
or controversy of any kind, whether founded in contract, tort, statutory or
common law, equity, or otherwise now existing or hereafter arising between any
of the Parties arising out of, pertaining to or in connection with any
agreement, document or instrument to which this Arbitration Program is attached
or in which it appears or is referenced or any related agreements, documents, or
instruments ("Documents"). Any Party who fails to submit to binding arbitration
following a lawful demand by another Party shall bear all costs and expenses,
including reasonable attorneys' fees, incurred by the other Party in obtaining a
stay of any pending judicial proceeding or compelling arbitration of any
Dispute. The parties agree that any agreement, document or instrument which
includes, attaches to or incorporates this Arbitration Program represents a
transaction involving commerce as that term is used in Federal Arbitration Act,
("FAA") Xxxxx 0 Xxxxxx Xxxxxx Code.
(b) Governing Rules. Arbitrations conducted pursuant to this
Arbitration Program shall be administered by the American Arbitration
Association ("AAA"), or other mutually agreeable administrator ("Administrator")
in accordance with the Commercial Arbitration
Page 3 - ASSUMPTION AGREEMENT
Rules of the AAA. The FAA shall govern any judicial proceedings, resolve any
issue of arbitrability, and procedurally govern any arbitration related to this
Arbitration Program. The arbitrator(s) shall resolved all Disputes in accordance
with the applicable substantive law designated in the Documents. The Parties
agree not to assert any claim for punitive damages or prejudgment interest
except to the extent such awards are specifically authorized by statute.
Judgment upon any award rendered hereunder may be entered in any court having
jurisdiction.
(c) Preservation of Remedies. No provision of, nor the exercise
of any rights under, this arbitration clause shall limit the right of any Party
to: (1) foreclose against any real or personal property collateral or other
security, or obtain a personal or deficiency award; (2) exercise self-help
remedies (including repossession and setoff rights); or (3) obtain provisional
or ancillary remedies such as injunctive relief, sequestration, attachment,
replevin, garnishment, or the appointment of a receiver from a court having
jurisdiction. Such rights can be exercised at any time except to the extent such
action is contrary to a final award or decision in any arbitration proceeding.
The institution and maintenance of an action as described above shall not
constitute a waiver of the right of any Party to submit the Dispute to
arbitration, nor render inapplicable the compulsory arbitration provisions
hereof. Any claim or Dispute related to exercise of any self-help, auxiliary or
other rights under this paragraph shall be a Dispute hereunder.
(d) Arbitrator Powers and Qualifications: Awards. The Parties
agree to select a neutral "qualified" arbitrator or a panel of three "qualified"
arbitrators to resolve any Dispute hereunder. "Qualified" means a practicing
attorney, with not less than ten (10) years practice in commercial law, licensed
to practice in the state of the applicable substantive law designated in the
Documents. A Dispute in which the claims or amounts in controversy do not exceed
One Million and No/100 Dollars ($1,000,000.00), shall be decided by a single
arbitrator. A single arbitrator shall have authority to render an award up to
but not to exceed One Million and No/100 Dollars ($1,000,000.00) including all
damages of any kind whatsoever, costs, fees, attorneys' fees and expenses.
Submission to a single arbitrator shall be a waiver of all Parties' claims to
recover more than One Million and no/100 Dollars ($1,000,000.00). A Dispute
involving claims or amounts in controversy exceeding One Million and No/100
Dollars ($1,000,000.00) shall be decided by a majority vote of a panel of three
qualified arbitrators. The Arbitrator(s) shall not have the power to award
punitive or exemplary damages except where such damages are specifically
provided for by statute upon which the award is based. The arbitrator(s) shall
be empowered to, at the written request of any Party in any Dispute, (1) to
consolidate in a single proceeding any multiple party claims that are
substantially identical; (2) to consolidate any claims and Disputes between
other Parties which arise out of or relate to the subject matter hereof; and (3)
to administer multiple arbitration claims as class actions in accordance with
Rule 23 of the Federal Rules of Civil Procedure. The arbitrator(s) shall be
empowered to resolve any dispute regarding the terms of this arbitration clause
but shall have no power to change or alter the terms of this Arbitration
Program. The Arbitrator(s) shall have the discretion to award reasonable
attorneys' fees to the prevailing Party in any Dispute hereunder.
Page 4 - ASSUMPTION AGREEMENT
(e) Miscellaneous. All statutes of limitation applicable to any
Dispute shall apply to any proceeding in accordance with this arbitration
clause. The Parties agree, to the maximum extent practicable, to take any action
necessary to conclude an arbitration hereunder within 180 days of the filing of
a Dispute with the Administrator. The arbitrator(s) shall be empowered to impose
sanctions for any Party's failure to proceed within the times established
herein. Arbitrations shall be conducted in the state of the applicable
substantive law designated in the Documents. The provisions of this Arbitration
Program shall survive any termination, amendment, or expiration hereof or of the
Documents unless the Parties otherwise expressly agree in writing. Each Party
agrees to keep all Disputes and arbitration proceedings strictly confidential,
except for disclosures of information required in the ordinary course of
business of the Parties or as required by applicable law or regulation. If any
provision of this Arbitration Program is declared invalid by any court, the
remaining provisions shall not be affected thereby and shall remain fully
enforceable. The Parties understand they have decided that upon demand of any of
them, their Disputes may be resolved by arbitration rather than in a court and
once so decided cannot later be brought, filed or pursued in court.
11. Release of All Claims and Waiver of All Defenses. In order to
induce Bank to enter into this Agreement, Borrower and Columbia Sportswear
hereby unconditionally waive and release Bank from all claims, defenses,
demands, damages, costs and causes of action of any kind or nature, known or
unknown, existing or contingent to date relating to or arising out of the Loan,
excepting therefrom, however, Bank's compliance with all of the terms and
conditions of this Agreement and future compliance by Bank with all the terms
and conditions of the Loan Agreement, Note, Trust Deed and Loan Documents.
12. Additional Documents. Columbia Sportswear agrees to execute any
additional documents requested by Bank to accomplish the assumption of the Loan
by Columbia Sportswear.
13. All Other Terms Unmodified. Except as specifically provided
herein, the Loan Agreement, the Note, Trust Deed, and all other Loan Documents
shall remain in full force and effect in accordance with their respective terms
and conditions. This Agreement is subject to all of the conditions and covenants
expressed in the Loan Agreement, Note, the Trust Deed or in any other Loan
Documents.
14. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE
BY BANK AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH
ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE
BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY
BANK TO BE ENFORCEABLE. BORROWER AND COLUMBIA SPORTSWEAR ACKNOWLEDGE RECEIPT OF
A COPY OF THIS AGREEMENT.
Page 5 - ASSUMPTION AGREEMENT
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement on the date first above written.
COLUMBIA SPORTSWEAR COMPANY FIRST INTERSTATE BANK OF
OREGON, N.A.
By By
--------------------------------- -------------------------------------
Title Title VICE PRESIDENT
------------------------------ ----------------------------------
"Columbia Sportswear" "Bank"
-----------------------------------
XXXXXXX X. XXXXX
-----------------------------------
XXX XXXXXXXXX
"Borrower"
STATE OF OREGON )
: ss.
County of ___________ )
The foregoing instrument was acknowledged before me this __ day of
February, 1996 by Xxxxxxx X. Xxxxx.
---------------------------------------
Notary Public for Oregon
STATE OF OREGON )
: ss.
County of ____________ )
The foregoing instrument was acknowledged before me this ____ day of
February, 1996 by Xxx Xxxxxxxxx.
---------------------------------------
Notary Public for Oregon
Page 6 - ASSUMPTION AGREEMENT
STATE OF OREGON )
: ss.
County of ____________ )
The foregoing instrument was acknowledged before me this ____ day of
February, 1996 by __________________, the _______________________ of COLUMBIA
SPORTSWEAR COMPANY, on behalf of the corporation.
---------------------------------------
Notary Public for Oregon
STATE OF OREGON )
: ss.
County of ____________ )
The foregoing instrument was acknowledged before me this ____ day of
February, 1996 by _____________________, who is a _______________________ of
FIRST INTERSTATE BANK OF OREGON, N.A., on behalf of the association.
---------------------------------------
Notary Public for Oregon
Page 7 - ASSUMPTION AGREEMENT
This space reserved for County Filing Officer use only
State of Oregon Uniform Commercial Code Financing Statement
Real Property - Form UCC-1A
THIS FORM FOR COUNTY FILING OFFICER USE ONLY
This FINANCING STATEMENT is presented to the county filing officer pursuant to
the Uniform Commercial Code.
A. Debtor Names(s) 2A. Secured Party Name(s): 4A. Assignee of
COLUMBIA SPORTSWEAR FIRST INTERSTATE BANK OF Secured Party (if any):
COMPANY, an Oregon OREGON, N.A.
corporation
2B. Address of Secured Party from
which security information is
obtainable:
Oregon Corporate Division
0000 XX 0xx Xxx.
XX Xxx 0000
Xxxxxxxx, XX 00000
This financing statement covers the following types (or items) of property
(check if applicable):
|X| The goods are to become fixtures on: ** |_| The above timber is
--------- standing on:
-------------
|_| The above minerals or the like (including gas and oil) or accounts will be
financed at the wellhead or minehead of the well or mine located on:
(describe real estate)
**All real and personal property as described in Exhibit A and Exhibit
B attached hereto and by this reference incorporated herein
and the financing statement is to be filed for record in the real estate
records. (If the debtor does not have an interest of record) The name of a
record owner is:
|X| Check box if products of collateral Number of attached additional
are also covered sheets: 2
Debtor hereby authorizes the Secured Party to record a carbon, photographic or
other reproduction of this form, financing statement or securities agreement as
a __________ statement under ORS Chapter 79.
_________ of the debtor required in most
cases. _________ of Secured Party in By: COLUMBIA SPORTSWEAR COMPANY,
cases covered ORS 79.4020 an Oregon corporation
-----------------------------
-----------------------------
Required signatures(s)
INSTRUCTIONS
PLEASE TYPE THIS FORM.
If the space provided for any item(s) on this form is inadequate, the item(s)
should be continued on additional sheets. Only one copy of such additional
sheets need to be presented to the county filing officer. DO NOT STAPLE OR TAPE
ANYTHING TO THIS FORM.
This form (UCC-1A) should be recorded with the county filing officers who record
real estate mortgages. This form cannot be filed with the Secretary of State.
Send the Original to the county filing officer.
After the recording process is completed the county officer will return the
document to the party indicated. The printed termination statement below may be
used to terminate this document.
The RECORDING FEE must accompany the document. The fee is $5 per page.
Be sure that the financing statement has been properly signed. Do not sign the
termination statement (below) until this document is to be terminated.
Recording Party contact name: Xxx Xxxxxxx Termination Statement
Recording Party telephone number: (000) 000-0000 This statement of termination
of financing is presented for
Return to: (name and address) filing pursuant to the Uniform
First Interstate Bank of Oregon, N.A. Commercial code. The Secured
Oregon Corporation Division Party no longer claims a
XX Xxx 0000 security interest in the
Xxxxxxxx, XX 00000 financing statement bearing
the recording number shown
above. Please do not type
outside of bracketed area.
By:
---------------------------
Signature of Secured
Party(ies) or Assignee(s)
EXHIBIT A
LEGAL DESCRIPTION
That portion of Xxx 0, Xxxxx 00, XXXXXXXXX XXXXXXXXXX XXXXXXXX, in the City of
Portland, County of Multnomah, and State of Oregon, described as follows:
Commencing at the Northwest corner of said Xxx 0, Xxxxx 00; thence North 90
degrees 00'00" East along the North line of said Xxx 0, Xxxxx 00, 000.00 feet to
the true point of beginning; thence continuing North 90 degrees 00'00" East,
508.00 feet; thence South 00 degrees 00'00" East, 570.00 feet; thence South 90
degrees 00'00" West, 508.00 feet; thence North 00 degrees 00'00" West 570.00
feet to the true point of beginning.
EXCEPTING THEREFROM mineral rights as reserved by the State of Oregon by Deed
recorded June 28, 1967, in Book 568, Page 1121, Multnomah County Records.
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| |
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Initial
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| |
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Initial
EXHIBIT B
All buildings, improvements, and tenements now or in the future erected on the
property, described in the attached Exhibit A and all previously or in the
future vacated alleys and streets abutting the property, and all easements,
rights, appurtenances, leases, including, without limitation, the leases or
agreements now or hereafter existing, however evidenced, covering all or any
portion of the property, together with all rents or monies due or to become due
thereunder; and together with all now existing or in the future arising or
acquired: (a) revenues, royalties, mineral, oil, and gas rights and profits,
water, water rights, and water stock appurtenant to the property; (b) fixtures,
machinery, equipment located or to be located on the property, including,
without limitation, personal property required for the maintenance and operation
of the property (including, but not limited to, engines, boilers, incinerators,
building materials, and all appliances, escalators and elevators, and related
machinery and equipment, fire prevention and extinguishing apparatus, security
and access control apparatus, communications apparatus, plumbing, plumbing
fixtures, water heaters, paneling, attached floor and wall coverings); ** (c)
estate, interest, claims or demands, and other general intangibles now or in the
further relating to the property, including, but not limited to, all insurance
which the Debtor now has or may in the future acquire in and to the property,
and all present or future refunds or rebates of taxes or assessments on the
property described above; (d) present or future plans, specifications, contracts
and agreements for construction of improvements on the property; (e) Debtor's
rights under any payment, performance or other bond in connection with the
construction of any improvements on the property; (f) deposits, cash or other
property now owned or hereafter acquired by Debtor and which are now or may in
the future be delivered to or otherwise be in the possession of the Secured
Party; (g) replacements, substitutions and additions to the foregoing; (h)
proceeds and products of all the foregoing. The specific enumerations herein
shall not exclude the general.
** other than Debtor's trade fixtures
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| |
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Initial
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Initial
Submit this form and fee STATE OF OREGON THIS SPACE FOR OFFICE USE ONLY
$10.00 per form Corporation Division - UCC
Public Service Building
000 Xxxxxxx Xxxxxx XX, Xxxxx 000
Xxxxx, XX 00000-0000
(000) 000-0000 Facsimile (000) 000-0000
UCC-1 STATE FINANCING STATEMENT STANDARD FORM
PLEASE TYPE OR WRITE LEGIBLY. READ INSTRUCTIONS BEFORE FILLING OUT FORM.
A. DEBTOR NAME(S) (if individual list last name first) F. LIST THE TYPES (OR
ITEMS) OF COLLATER-
1. COLUMBIA SPORTSWEAR COMPANY, an Oregon corporation AL (ORS 79.4020).
-------------------------------------------------- Use a separate sheet
of paper if necessary.
2.
--------------------------------------------------- |X| PRODUCTS of
collateral are also
3. covered.
--------------------------------------------------
All real and personal
property as described
in Exhibit A and
Exhibit B attached
hereto and by this
reference incorporated
herein
DEBTOR MAILING ADDRESS:
0000 X. Xxxxxxxxx
Xxxxxxxx, XX 00000
B. SECURED PARTY(IES) NAME AND ADDRESS
FIRST INTERSTATE BANK OF OREGON, N.A.
Oregon Corporation Division
0000 XX 0xx Xxx., X.X. Xxx 0000
Xxxxxxxx, XX 00000
Contact Name: Xxx Xxxxxxx Phone No.: (000) 000-0000
------------------------------------ ----------------
C. ASSIGNEE(S) NAME AND ADDRESS (if any)
Contact Name Phone No.:
------------------------------------- ----------------
D. DEBTOR SIGNATURE(S) REQUIRED:
By: By:
--------------------------------------- -------------------------------
By: By:
--------------------------------------- -------------------------------
E. DEBTOR SIGNATURE(S) NOT REQUIRED. If applicable, check the appropriate box
below to file without debtor signature(s). This statement is filed without the
debtor signatures(s) to perfect a security interest in collateral. Secured Party
must sign, when Debtor signature(s) is not required. See instructions for
further information.
|_| Collateral already subject to a security interest in another jurisdiction.
|_| Which is proceeds of the described original collateral which was perfected.
|_| Collateral as to which the filing has lapsed.
|_| Collateral acquired after a change of name, identity or corporate
structure of debtor.
By: By:
-------------------------------- ------------------------------------
Secured Party signature Secured Party signature
RETURN COPY TO: (name and address). Please do not type or print outside of
bracketed area. OR, FAX COPY TO: (name and fax number).
Name: _________________________________
Fax Number: ___________________________
WHEN RECORDED, RETURN TO:
First Interstate Bank of Oregon, N.A.
Oregon Corpora Division, T-19
X.X. Xxx 0000
Xxxxxxxx, Xxxxxx 00000
Attention: Xxx Xxxxxxx
MODIFICATION AGREEMENT
THIS MODIFICATION AGREEMENT (the "Modification") is made this 8 day of
March , 1996 between COLUMBIA SPORTSWEAR COMPANY, an Oregon corporation
("Borrower"), and FIRST INTERSTATE BANK OF OREGON, N.A. ("Bank").
RECITALS:
A. Bank loaned Borrower the principal sum of Three Million Four
Hundred Sixteen Thousand and no/100 Dollars ($3,426,000.00) (the "Loan")
pursuant to that certain loan agreement dated May 19, 1994 between Bank and
Borrower (with any amendments, the "Loan Agreement"). The Loan was further
evidenced by that certain promissory note dated May 19, 1994 in the original
principal sum of $3,416,000.00 made by Borrower in favor of Bank and with an
original maturity date of June 1, 2009 (with any amendments, extensions or
renewals, the "Note").
B. The Loan is secured by a commercial deed of trust dated May 19,
1994 granted by Borrower, naming Chicago Title Insurance Company as trustee in
favor of Bank as beneficiary (with any amendments, the "Trust Deed"). The Trust
Deed encumbers, among other things, the real property described in Exhibit A
attached to this Agreement and by this reference made a part of it (the "Real
Property"). The Trust Deed was recorded May 19, 1994, Recorder's Fee No.
94-079047, Multnomah county, Oregon, records.
C. Xxxxxxx X. Xxxxx and Xxx Xxxxxxxxx (together, "Xxxxx & Xxxxxxxxx")
acquired the Real Property and assumed the obligations of Borrower to Bank under
the Loan Documents (as defined below) pursuant to the terms of that certain
assumption agreement dated June 8, 1994 among Xxxxx & Xxxxxxxxx, Borrower and
Bank ("Assumption Agreement 1").
D. The Loan is also secured by an assignment dated December 2, 1994
executed by Borrower, Xxxxx & Xxxxxxxxx, collectively as Assignor, in favor of
Bank (with any amendments, the "Assignment"). The Assignment was recorded June
1, 1995 as Recorder's Fee No. 95 64429 in the Multnomah County, Oregon, real
estate records.
E. Borrower re-assumed the obligations of Xxxxx & Xxxxxxxxx to Bank
under the Loan Documents pursuant to the terms of that certain assumption
agreement dated the same dated hereof among Borrower, Xxxxx & Xxxxxxxxx and Bank
("Assumption Agreement 2")
F. Borrower and Bank desire that the Trust Deed encumber the
Additional Real Property on the terms and conditions set forth below and not
otherwise.
Page 14 - MODIFICATION AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, which are
expressly incorporated in and made a part of this Modification, and of the
mutual covenants, conditions and promises specified in this Modification, and
for other good and valuable consideration, Bank and Borrower agree as follows:
1. Recitals. The Recitals are true and correct.
2. Definitions. The terms "Loan Documents" shall mean all documents
executed in connection with or contemplated by the Loan, together with all
amendments to such documents. The term "Loan Documents' includes, without
limitation, the Loan Agreement, Note, Trust Deed, Assignment, and this
Modification. Capitalized terms which are defined in the foregoing recitals or
other provisions of this Modification shall have the meaning given those terms
in such recitals or other provisions. Capitalized terms which are not defined in
this Modification and are defined in the Loan Agreement, Note, Trust Deed or
Assignment shall have the meaning given those terms in the Loan Agreement, Note,
Trust Deed or Assignment.
3. Trust Deed Encumbers Additional Real Property. The Trust Deed shall
encumber, among other collateral, the following real property, which is included
in the definition of "Property":
Xxx 0, XXXXXXXXXX XXXXXXXXXX XXXX, in the City of Portland, County of
Multnomah and State of Oregon.
4. Insurance. Section 6.1 of the Trust Deed is hereby amended by
inserting the following warning pursuant to Oregon law:
WARNING:
Unless Borrower provides Bank with evidence of the
insurance coverage, Bank may purchase insurance at
Borrower's expense to protect Bank's interest.
This insurance may, but need not, also protect
Borrower's interest. If the Property becomes
damaged, the coverage Bank purchases may not pay
any claim Borrower makes or any claim made against
Borrower. Borrower may later cancel this coverage
by providing evidence that Borrower has obtained
property coverage elsewhere.
Borrower is responsible for the cost of any
insurance purchased by Bank. The cost of this
insurance may be added to Borrower's contract or
loan balance. If the cost is added to Borrower's
contract or loan balance, the interest rate on the
underlying contract or loan will apply to this
added amount. The effective date of coverage may
be the date Borrower's prior coverage lapsed or
the date Borrower failed to provide proof of
coverage.
The coverage Bank purchases may be considerably
more expensive than insurance Borrower can obtain
on Borrower's own and not satisfy any need for
property damage coverage or any mandatory
liability insurance requirements imposed by
applicable law.
5. Rights and Remedies on Default. Upon any default by Borrower under
the
Page 15 - MODIFICATION AGREEMENT
terms of this Modification, the Note, the Loan Agreement, the Trust Deed, the
assignment, or other Loan Documents, Bank shall have all rights and remedies
available to it under the Note, Loan Agreement, Trust Deed, Assignment and other
Loan Documents, and at law or in equity, and all rights and remedies shall be
cumulative and not alternative. The rights and remedies, include, without
limitation, declaring the entire outstanding balance of the Loan due and
payable.
6. Effect of Agreement and Priority of Trust Deed Not Affected. This
Modification is an amendment of the Trust Deed, and the priority of the Trust
Deed shall not be affected by this Modification or by renegotiation or
adjustment of the interest rate in the Note upward or downward, which may
increase or decrease the amount of periodic payments and may extend the term of
the Loan. The priority of the Trust Deed also shall not be affected by the
execution of new notes or agreements for modification and extension of the Loan
which reflect changes made pursuant to any of the adjustments. Unless otherwise
provided by law, the priority of the Trust Deed shall not be affected by any
change in terms whether or not it adversely affects subordinate or prior
interest holders.
7. All Other Terms Unmodified. Except as specifically modified by this
Modification, the Note, Loan Agreement, Trust Deed, Assignment, and all other
Loan Documents shall be and remain in full force and effect in accordance with
their respective terms and conditions.
8. Notice. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS
MADE BY THE BANK AFTER OCTOBER 3, 199 CONCERNING LOANS AND OTHER CREDIT
EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED
SOLELY BY THE BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND
BE SIGNED BY THE BANK TO BE ENFORCEABLE. BORROWER ACKNOWLEDGES RECEIPT OF A COPY
OF THIS MODIFICATION.
IN WITNESS WHEREOF, Borrower and Bank have caused this Modification to
be signed by their duly authorized officers as of the date first written above.
COLUMBIA SPORTSWEAR COMPANY FIRST INTERSTATE BANK OF OREGON, N.A.
By By
--------------------------------- -------------------------------------
Title Title
------------------------------ ----------------------------------
STATE OF OREGON )
: ss.
County of Multnomah )
The foregoing instrument was acknowledged before this 11 day of March,
1996 by X. Xxxxxxx , who is a Vice President of First Interstate Bank of
Oregon, N.A., on behalf of the association.
/s/ Xxxxxxx Xxxxxx Xxxxxxx
---------------------------------------
Notary Public of Oregon
Page 00 - XXXXXXXXXXXX XXXXXXXXX
XXXXX XX XXXXXX )
: ss.
County of Multnomah )
The foregoing instrument was acknowledged before this 8th day of March
, 1996 by Xxxxxxx X. Xxxxx , who is a President of Columbia Sportswear Company,
on behalf of the corporation.
/s/ Xxxx X. Xxxxxx
---------------------------------------
Notary Public of Oregon
Page 17 - MODIFICATION AGREEMENT
EXHIBIT A
Legal Description
Parcel 1 of PARTITION PLAT 1993-131, in the City of Portland, County of
Multnomah and State of Oregon.
Metes and Bounds: Commencing at the Northwest corner of said Xxx 0, Xxxxx 00;
thence North 90(degree)00'00" East along the North line of said Xxx 0, Xxxxx 00,
000.00 feet to the true point of beginning; thence continuing North
90(degree)00'00" Est 508.00 fee; thence South 00(degree)00'00" East, 570.00
feet; thence South 90(degree)00'00" West, 508.00 fee; thence North
00(degree)00'00" West 570.00 feet to the true point of beginning.
EXCEPTING THEREFROM mineral rights as reserved by the State of Oregon by deeded
recorded June 28, 1967, in Book 568, Page 1121, Multnomah County Records.
Page 18 - MODIFICATION AGREEMENT
