Exhibit 10(b)
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), dated as of the 30th day of April,
1996 by and between AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO
("BANK"), a national banking association with its principal place of business
at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and Astro Communications,
Inc., ("Borrower"), an Oklahoma corporation with its principal place of
business at 0 X. XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, has reference to the
following facts and circumstances:
Pursuant to Borrower's request, Bank heretofore, now and from time to time
hereafter, has and/or may loan or advance monies, extend credit and/or extend
other financial accommodations to or for the benefit of the Borrower.
NOW THEREFORE, in consideration of the terms and conditions set forth
herein and of any loans or extensions of credit heretofore, now or hereafter
made to or for the benefit of Borrower by Bank, the parties hereto agree as
follows:
1. DEFINITIONS AND TERMS
1.1 When used herein, the words, terms and/or phrases set forth below
shall have the following meanings:
A. "Accounts": all present and future rights of Borrower to payment for
goods sold or leased or for services rendered, which are not
evidenced by instruments or chattel paper, and whether or not they
have been earned by performance.
B. "Borrower's Liabilities": all obligations and liabilities of
Borrower, to Bank (including without limitation all debts, claims,
indebtedness and attorney's fees and expenses as provided for in
Paragraph 6.11) whether primary, secondary, direct, contingent,
fixed or otherwise, including Rate Hedging Obligations (as defined
in subparagraph i herein), heretofore, now and/or from time to time
hereafter owing, due or payable, however evidenced, created,
incurred, acquired or owing and however arising, whether under this
Agreement or the "Other Agreements" (hereinafter defined) or by
operation of law or otherwise.
C. "Charges": all national, federal, state, county, city, municipal
and/or other governmental (or any instrumentality, division, agency,
body or department thereof, including without limitation the Pension
Benefit Guaranty Corporation) taxes, levies, assessments, charges,
liens, claims or encumbrances upon and/or relating to the
"Collateral" (as hereinafter defined), Borrower's Liabilities,
Borrower's business, Borrower's ownership and/or use of any of its
assets, and/or Borrower's income and/or gross receipts.
D. "Indebtness": (i) indebtedness for borrowed money or for the
deferred purchase price of property or services; (ii) obligations as
lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded
as capital leases; (iii) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise)
to purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of others of
the kinds referred to in clauses (i) or (ii) above; and (iv)
liabilities with respect to unfunded vested benefits under plans
covered by Title IV of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), and in effect from time to time.
E. "Obligor": any Person who is and/or may become obligated to Borrower
under or on account of "Accounts".
F. Other Agreements": all agreements, instruments and documents,
including without limitation, guaranties, mortgages, deeds of trust,
notes, pledges, powers of attorney, consents, assignments,
contracts, notices, security agreements, leases, subordination
agreements, financing statements and all other written matter
heretofore, now and/or from time to time hereafter executed by
and/or on behalf of Borrower and delivered to Bank.
G. "Persons": any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association,
corporation, limited liability company, institution, entity, party
or government (whether national, federal, state, county, city,
municipal, or otherwise, including without limitation, any
instrumentality, division, agency, body or department thereof).
H. "Rate Hedging Obligations": shall mean any and all obligations of
the Borrower, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefor), under (i) any and all agreements designed to protect the
Borrower from the fluctuations of interest rates, exchange
transactions, including, but not limited to: interest rate swap
agreements, dollar-denominated or cross-currency interest rate
exchange agreements, forward currency exchange agreements, interest
rate cap, floor or collar agreements, forward rate currency
agreements or agreements relating to interest rate options, puts and
warrants, and (ii) any and all agreements relating to cancellations,
buy backs, reversals, terminations, or assignments or any of the
foregoing.
1.2 Except as otherwise defined in this Agreement or the Other
Agreements, all words, terms and/or phrases used herein and therein shall be
defined by the applicable definition therefor (if any) in the Illinois Uniform
Commercial Code.
2. LOANS
2.1 Loans made by Bank to Borrower pursuant to this Agreement shall be
evidenced by notes or other instruments issued or made by Borrower to Bank.
Except as otherwise provided in this Agreement or in any notes executed and
delivered by Borrower to Bank in connection herewith, the principal portion of
Borrower's Liabilities shall be payable by Borrower to Bank on the maturity
date(s) described in any such note(s) (as the same may be amended or renewed).
All costs, fees and expenses payable hereunder or under the Other Agreements,
shall be payable by Borrower to Bank on demand, in either case at Bank's
principal place of business or such other place as Bank shall specify in writing
to Borrower.
2.2 Notwithstanding anything contained in this Agreement or the Other
Agreement to the contrary, the principal portion of Borrower's Liabilities
outstanding at any one time shall not exceed 1,000,000.00 in the aggregate.
2.3 Each loan made by Bank to Borrower pursuant to this Agreement or the
Other Agreements shall constitute an automatic warranty and representation by
Borrower to Bank that there does not then exist an "Event of Default" (as
hereinafter defined) or any event or condition which with notice, lapse of time
and/or the making of such loan would constitute an Event of Default.
2.4 This Agreement shall be in effect until all of Borrower's
Liabilities have been paid in full and any and all commitments of Bank to make
loans have terminated.
2.5 Bank's commitment to loan shall expire on the earlier of (i) the
date on which Borrower's Liabilities mature under the terms of any note given
by Borrower to Bank, or (ii) the occurrence of an Event of Default pursuant to
Section 6 hereof.
3. NEGATIVE PLEDGE
3.1 Borrower shall not, and shall not permit any of its subsidiaries to
create, incur, permit, or suffer to exist any lien upon any of its property or
assets, now owned or hereafter acquired, except for the following permitted
liens: (a) pledges or deposits made to secure payment of worker's compensation
insurance; (b) liens imposed by mandatory provisions of law such as for
materialmen, mechanics, warehousemen and other liens arising in the ordinary
course of business; (c) liens for taxes, assessments and governmental charges
of levies imposed upon the Borrower's income or profits or property, if the
same are not yet due and payable or if the same are being contested in good
faith and as to which adequate cash reserves have been provided; (d) liens
arising out of good faith deposits in connection with tenders, leases, real
estate bids or contracts (other than contracts involving the borrowing of
money), pledges, or deposits to secure (or in lieu of) surety, stay, appeal or
customs bonds and deposits to secure the payment of taxes, assessments, customs
duties or similar charges; (e) encumbrances consisting of zoning restrictions,
easements, or other restrictions on the use of real property, provided that
such items do not impair the use of such property for the purposes intended,
and none of which is violated by existing or proposed structures or land use;
and (f) lines previously disclosed to Bank against Borrower held by any other
bank.
4. WARRANTIES, REPRESENTATIONS AND COVENANTS; GENERAL
4.1 Borrower warrants and represents to and covenants with Bank that:
(a) Borrower has the right, power and capacity and is duly authorized and
empowered to enter into, execute, deliver and perform this Agreement and the
Other Agreements; (b) the execution, delivery and/or performance by Borrower of
this Agreement and the Other Agreements shall not, by the lapse of time, the
giving of notice or otherwise, constitute a violation of any applicable law or
a breach of any provision contained in Borrower's Articles of Incorporation,
By-Laws, Articles of Partnership, Articles of Organization, Operating Agreement
or similar document, or contained in any agreement, instrument or document to
which Borrower is now or hereafter a party or by which it is or may be bound;
(c) Borrower is now and at all times hereafter, shall be solvent and generally
paying its debts as they mature and Borrower now owns and shall at all times
hereafter own property which, at a fair valuation, is greater than the sum of
its debts; (d) Borrower is not and will not be during the term hereof in
violation of any applicable federal, state or local statute, regulation or
ordinance that, in any respect materially and adversely affects its business,
property, assets, operations or condition, financial or otherwise; and (e)
Borrower is not in default with respect to any indenture, loan agreement,
mortgage, deed or other similar agreement relating to the borrowing of monies
to which it is a party or by which it is bound.
4.2 Borrower warrants and represents to and covenants with Bank that
Borrower shall not without Bank's prior written consent thereto; (a) enter into
any transaction not in the ordinary course of business which materially and
adversely affects Borrower's ability to repay Borrower's Liabilities, any other
obligations and liabilities of Borrower or any third party or any Collateral;
(b)other than as specifically permitted in or contemplated by this Agreement or
the Other Agreements, encumber, pledge, mortgage, sell, lease or otherwise
dispose of or transfer, whether by sale, loan, distribution, merger,
consolidation or otherwise, any of Borrower's assets; and (c) incur
Indebtedness except renewals or extensions of existing Indebtedness and
interest thereon, and except Indebtedness that is unsecured and is to Persons
who execute and deliver to Bank in form and substance acceptable to Bank and
its counsel subordination agreements subordinating their claims against
Borrower therefore fore to the payment of Borrower's Liabilities.
4.3 Borrower warrants and represents to and covenants with Bank that
Borrower shall furnish to Bank: (a) as soon as available but not later than
ninety (90) days after the close of each fiscal year of Borrower, financial
statements, which shall include, but not be limited to, balance sheets, income
statements and statements of cash flow of Borrower prepared in accordance with
generally accepted accounting principles, consistently applied, audited by a
firm of independent certified public accounts selected by Borrower and
acceptable to Bank; (b) as soon as available but not later than forty-five (45)
days after the end of each month hereafter, financial statements of Borrower
certified by Borrower to be prepared in accordance with generally accepted
accounting principles fairly present the financial position and results of
operations of Borrower for such period; and (c) (i) as soon as available but
not later than sixty (60) days of quarter-end, Borrower shall furnish to Bank
its 10-Q report along with an internally-prepared statement showing the results
of Unilux only; (ii) as soon as available but not later than one hundred twenty
(120) days of year-end. Borrower shall furnish to Bank its 10-K report, which
will include financial statements audited by an independent Certified Public
Accountant acceptable to Bank and (iii) such other data and information
(financial and otherwise) as Bank, from time to time, may request.
4.4 Borrower warrants and represents to and covenants with Bank that
Borrower shall not pay or declare any dividend or make any other distribution
based upon the stock of Borrower (except dividends payable stock of Borrower)
or make any purchases, redemptions or other acquisitions, direct or indirect,
of stock of Borrower.
4.5 Borrower warrants and represents to and covenants with Bank that
Borrower shall not incur any additional Indebtedness without prior consent of
Bank.
4.6 Borrower warrants and represents to and covenants with Bank that
Borrower shall not allow its Treasury stock purchases to exceed $250,000.00 in
any fiscal year.
4.7 Borrower warrants and represents to and covenants with Bank that
Borrower shall not make individual portfolio investments greater than
$300,000.00.
4.8 Borrower warrants and represents to and covenants with Bank that
Borrower shall not dispose of its operating assets or Unilux stock in excess of
$250,000.00 without prior consent of Bank.
5. DEFAULT
5.1 The occurrence of any one of the following events shall constitute a
default by the Borrower ("Event of Default") under this Agreement: (a) if
Borrower fails to pay any of Borrower's Liabilities when due and payable or
declared due and payable (whether by scheduled maturity, required payment,
acceleration, demand or otherwise); (b) if Borrower fails or neglects to
perform, keep or observe any term, provision, condition, covenant, warranty or
representation contained in this Agreement or any of the Other Agreements; (c)
occurrence of a default or Event of Default under any of the Other Agreements
heretofore, now or at any time hereafter delivered by or on behalf of Borrower
to Bank; (d) occurrence of a default or an Event of Default under any agreement,
instrument or document heretofore, now or at any time hereafter delivered to
Bank by any guarantor of Borrower's Liabilities or by any Person which has
granted to Bank a security interest or lien in such Person's real or personal
property to secure the payment of Borrower's Liabilities; (e) if the Collateral
or any other of Borrower's assets are attached, seized, subjected to a writ, or
are levied upon or become subject to any lien or come within the possession of
any receiver, trustee, custodian or assignee for the benefit of creditors; (f)
if a notice of lien, levy or assessment is filed of record or given to Borrower
with respect to all or any of Borrower's assets are attached, seized, subjected
to a writ, or are levied upon or become subject to any lien or come within the
possession of any receiver, trustee, custodian or assignee for the benefit of
creditors; (f) if a notice of lien, levy or assessment is filed of record or
given to Borrower with respect to all or any of Borrower's assets by any
federal, state, local department or agency; (g) if Borrower or any guarantor of
Borrower's Liabilities becomes insolvent or generally fails to pay or admits in
writing its inability to pay debts as they become due, if a petition under Title
II of the United States Code or any similar law or regulation is filed by or
against Borrower or any such guarantor, if Borrower or any such guarantor shall
make an assignment for the benefit of creditors, if any case or proceeding is
filed by or against Borrower or any such guarantor for its dissolution or
liquidation, if Borrower or any such guarantor is enjoined, restrained or in any
way prevented by court order from conducting all or any material part of its
business affairs; (h) the death or incompetency of Borrower or any guarantor of
Borrower's Liabilities, or the appointment of a conservator for all or any
portion of Borrower's assets or the Collateral; (i) the revocation, termination,
or cancellation of any guaranty of Borrower's Liabilities without written
consent of Bank; (j) if a contribution failure occurs with respect to any
pension plan maintained by Borrower or any corporation, trade or business that
is, along with Borrower, a member of a controlled group of corporations or
controlled group of trades as businesses (as described in Sections 414 (b) and
(c) of the Internal Revenue Code of 1986 or Section 4001 of ERISA) sufficient to
give rise to a lien under Section 302(f) of ERISA; (k) if Borrower or any
guarantor of Borrower's Liabilities is in default in the payment of any
obligations, indebtedness or other liabilities to any third party and such
default is declared and is not cured within the time, if any, specified therefor
in any agreement governing the same; (l) if any material statement, report or
certificate made or delivered by Borrower, any of Borrower's partners, officers,
employees or agents or any guarantor of Borrower's Liabilities is not true and
correct; or (m) if Bank is reasonably insecure.
5.2 All of Bank's rights and remedies under this Agreement and the Other
Agreements are cumulative and non-exclusive.
5.3 All of Bank's rights and remedies under this Agreement and the Other
Agreements are cumulative and non-exclusive.
5.4 Upon an Event of Default or the occurrence of any one of the events
described in Paragraph 5.1, without notice by Bank to or demand by Bank or
Borrower, Bank shall have no further obligation to any may then forthwith
cease advancing monies or extending credit to or for the benefit of Borrower
under this Agreement and the Other Agreements. Upon an Event of Default,
without notice by Bank of Borrower, Borrower's Liabilities shall be due and
payable forthwith.
5.5 Any notice required to be given by Bank to Borrower deposited in the
United States mail, postage prepaid shall be delivered by registered or
certified mail to the address specified at the beginning of this Agreement not
less than ten (10) days prior to such proposed action, shall constitute
commercially reasonable and fair notice to Borrower thereof.
5.6 Under an Event of Default Borrower waives and releases any cause of
action and claim against Bank's possession or collection of the monies,
reserves, deposits, deposit accounts and interest or dividends thereof, cash
or cash equivalents, collectively the "Monies", in conjunction with this Loan
Agreement.
6. GENERAL
6.1 Borrower waives the right to direct the application of any and all
payments at any time or times hereafter received by Bank on account of
Borrower's Liabilities and Borrower agrees that Bank shall have the continuing
exclusive right to apply and re-apply any and all such payments in such manner
as Bank may deem advisable, notwithstanding any entry by Bank upon any of its
books and records.
6.2 This Agreement and the Other Agreements shall be binding upon and
inure to the benefit of the heirs, representatives, successors and assigns
of Borrower and Bank.
6.3 Bank's failure to require strict performance by Borrower of any
provision of this Agreement shall not waive, affect or diminish any right of
Bank thereafter to demand strict compliance and performance therewith. Any
suspension or waiver by Bank of an Event of Default by Borrower under this
Agreement or the Other Agreements shall not suspend, waive or affect any other
Event of Default by Borrower under this Agreement or the Other Agreements,
whether the same is prior or subsequent thereto and whether of the same or of a
different type. None of the undertakings, agreements, warranties, covenants
and representations of Borrower contained in this Agreement or the Other
Agreements and no Event of Default by Borrower under this Agreement or the
Other Agreements shall be deemed to have been suspended or waived by Bank unless
such suspension or waiver is by an instrument in writing signed by an officer
of Bank and directed to Borrower specifying such suspension or waiver.
6.4 If any provision of this Agreement or the Other Agreements or the
application thereof to any person, entity or circumstance is held invalid or
unenforceable, the remainder of this Agreement and the Other Agreements and the
application of such provision to other Persons, or circumstances will not be
affected thereby and the provisions of this Agreement and the Other Agreements
shall be severable in any such instance.
6.5 Borrower hereby appoints Bank as Borrower's agent and attorney-in-
fact for the purpose of carrying out the provisions of this Agreement and
taking any action and executing any agreement, instrument or document which
Bank may reasonably deem necessary or advisable to accomplish the purposes
hereof which appointment is irrevocable and coupled with an interest. All
monies paid for the purposes herein, and all costs, fees and expenses paid or
incurred in connection therewith, shall be part of Borrower's Liabilities,
payable by Borrower to Bank on demand.
6.6 Except as otherwise specifically provided in this Agreement, Borrower
waives any and all notice or demand which Borrower might be entitled to receive
by virtue of any applicable statute or law, and waives presentment, demand and
protest and notice of presentment, protest, default, dishonor, non-payment,
maturity, release, compromise, settlement, extension or renewal of any and all
agreements, instruments or documents at any time held by Bank on which Borrower
may in any way be liable.
6.7 This Agreement, or a carbon, photographic, or other reproduction of
this Agreement or any Uniform Commercial Code financing statement covering the
Collateral or any portion thereof, shall be sufficient as a Uniform Commercial
Code financing statement and may be filed as such.
6.8 Except as otherwise provided in the Other Agreements, if any
provision contained in this Agreement is in conflict with, or inconsistent with
any provision in the Other Agreements, the provision oft his Agreement shall
control.
6.9 The terms and provisions of this Agreement and the Other Agreements
shall supersede any prior agreement or understanding of the parties hereto, and
contain the entire agreement of the parties hereto with respect to the matters
covered herein. This Agreement and the Other Agreements may not be modified,
altered, or amended except by an agreement in writing signed by Borrower and
Bank. This Agreement shall continue in full force and effect so long as any
portion or component of Borrower's Liabilities shall be outstanding. All of
Borrower's warranties, representations, undertakings, and covenants contained
in this Agreement or the Other Agreements shall survive the termination or
cancellation of the same. Should a claim ("Recovery Claim") be made upon the
Bank at any time for recovery of any amount received by the Bank in payment of
Borrower's Liabilities (whether received from Borrower or otherwise) and should
the Bank repay all or part of said amount by reason of (1) any judgment, decree
or order of any court or administrative body having jurisdiction over Bank or
any of its property; (2) any settlement or compromise of any such Recovery
Claim effected by the Bank with the claimant (including Borrower), this
Agreement and the security interests granted Bank hereunder shall continue in
effect with respect to the amount so repaid to the same extent as if such
amount had never originally been received by the Bank, notwithstanding any
prior termination of this Agreement, the return of this Agreement to Borrower,
or the cancellation of any note or other instrument evidencing Borrower's
Liabilities.
6.10 This Agreement and the Other Agreements shall be governed and
controlled by the internal laws of the State of Illinois and not the law of
conflicts.
6.11 If at any time or times hereafter, whether or not Borrower's
Liabilities are outstanding at such time, Bank: (a) employs counsel for advice
or other representation, (i) with respect to any Collateral, this Agreement,
the Other Agreements or the administration of Borrower's Liabilities or any
Collateral, (ii) to represent Bank in any litigation, arbitration contest,
dispute, suit orproceeding or to commence, defend or intervene or to take any
other action in or with respect to any litigation, contest, dispute, suit or
proceeding (whether instituted by Bank, Borrower or any other Person) in any
way or respect relating to the Collateral, this Agreement, the Other
Agreements, or Borrower's affairs, or (iii) to enforce any rights of Bank
against Borrower or any other Person which may be obligated to Bank by virtue
of this Agreement or the Other Agreements including, without limitation any
Obligor; (b) takes any action with respect to administration of Borrower's
Liabilities or to protect, collect, sell, liquidate or otherwise dispose of any
Collateral; and/or (c) attempts to or enforces any of Bank's rights or remedies
under this Agreement or the Other Agreements, the reasonable costs, fees and
expenses incurred by Bank with respect to the foregoing, shall be part of
Borrower's Liabilities, payable by Borrower to Bank on demand.
6.12 BORROWER IRREVOCABLY AGREES THAT, SUBJECT TO BANK'S SOLE AND ABSOLUTE
ELECTION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT, ARISING OUT
OF OR FROM OR RELATED TO THIS AGREEMENT, THE OTHER AGREEMENTS OR THE COLLATERAL
SHALL BE LITIGATED ONLY IN COURTS HAVING SITUS WITHIN THE CITY OF CHICAGO,
STATE OF ILLINOIS, AND BORROWER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION
OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID CITY AND STATE.
BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF
ANY LITIGATION BROUGHT AGAINST BORROWER BY BANK IN ACCORDANCE WITH THIS
PARAGRAPH.
6.13 BORROWER HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT, COUNTERCLAIM OR PROCEEDING (i) TO ENFORCE OR DEFEND ANY RIGHTS
UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE OTHER AGREEMENTS, OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR (II) ARISING FROM
ANY DISPUTE OR CONTROVERSY ARISING IN CONNECTION WITH OR RELATED TO THIS
AGREEMENT, THE OTHER AGREEMENTS OR ANY SUCH AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT, AND AGREES THAT ANY SUCH ACTION, SUITE, COUNTERCLAIM OR PROCEEDING
SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
day and year specified at the beginning hereof.
BORROWER:
ASTRO COMMUNICATIONS, INC.
an Oklahoma corporation
By: _______________________
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, President
Accepted this 2nd day of May, 1996, at Bank's principal place of business
in the City of Chicago, State of Illinois
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By: Xxxxxxx X. Xxxxxx
Its: Vice President
