EXHIBIT 10.6
LOAN AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is made and entered into as of the 18th
day of August, 2000, between AVENUE A, INC., a Washington corporation ("Lender")
and NEVE XXXXXXX XXXXXX and XXX XXXXXXXXX XXXXXX (collectively, "Borrower"; a
reference to "Borrower" shall be construed as a reference to either of them).
R E C I T A L S:
A. Lender has agreed to make a loan (the "Loan") to Borrower in the
amount of $1,300,000 to partially finance the purchase of Borrower's residence
located at 00, Xxxxxxxx Xxxxxx, Xxxxxx X0 0XX Xxxxxxx and car parking space
number 18, 00-00 Xxxxx Xxxxxxx, Xxxxxxxxxx (together, the "London Residence").
B. As collateral for the Loan, Borrower has agreed to provide Lender (1)
a pledge of 120,000 shares of Lender's common stock held by Borrower,
represented by certificate numbers AVE 0658 and AVE 0660 (the "Pledged Shares"),
and (2) a second legal charge on the London Residence (the "Second Legal
Charge").
C. Pursuant to the Pledge Agreement, Borrower will cause certain of the
Pledged Shares to be sold pursuant to a set schedule, with the proceeds, after
payment of any brokerage commission and any costs of Lender related to the sale,
to be paid (1) first, to Borrower, in an amount sufficient to pay the taxes on
the sale of the Pledged Shares sold, (2) second, to igroup2 limited ("First
Mortgagee") for the any payments currently due on the debt owed by Borrower to
First Mortgagee and secured by a first legal charge (the "First Legal Charge")
on the London Residence, and (3) to Lender to reduce the amount of the Loan.
D. This Agreement sets forth certain terms and conditions in connection
with the Loan, including those governing the disbursement of Loan proceeds.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
Lender and Borrower agree as follows:
1. THE LOAN
1.1 Disbursements
Lender agrees to disburse the Loan proceeds to Borrower solely for the
purpose of acquiring the London Residence; Borrower agrees to remit any excess
Loan proceeds, after purchasing the London Residence, to Lender. The funds shall
be disbursed via wire transfer
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to Farnfield & Nicholls Client Account, Lloyds TSB Bank Plc, High Street,
Gillingham, Dorset, England, Sort Code 30-93-45, Client Call Account: 0000000.
1.2 Promissory Note
The Loan shall be evidenced by Borrower's Promissory Note ("Note") in the
Loan amount.
1.3 Security
Payment of the Note and performance of all of Borrower's obligations under
the Loan Documents shall be secured by:
(a) the Second Legal Charge which shall be a second legal mortgage on the
London Residence; and
(b) a pledge of the Pledged Shares pursuant to a Pledge Agreement (the
"Pledge Agreement") dated August 18th, 2000 between Borrower and Lender.
1.4 Loan Documents
As used in this Agreement, "Loan Documents" means this Agreement, the Note,
the Second Legal Charge, the Pledge Agreement, and all other documents and
instruments relating to the Loan.
2. CONDITIONS TO CLOSING
Lender shall have no obligation to close the Loan or advance any proceeds
of the Loan unless:
(a) Lender shall have received a certified copy of an original hazard
insurance policy on the London Residence, with such endorsements or other
insurance policies as may be necessary to insure all perils reasonably required
to be insured by Lender, issued by a company reasonably acceptable to Lender.
The policy shall not be subject to cancellation without 30 days' prior written
notice to Lender. Lender shall be named as a loss payee on the policy;
(b) Lender shall have received the consent of the First Mortgagee to the
encumbrance of the London Residence by the Second Legal Charge;
(c) Lender shall have received the Second Legal Charge executed by the
Borrower; and
(d) Lender is satisfied that the proceeds of the Loan shall be used
exclusively for the purpose of assisting in the acquisition of the London
Residence.
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3. COVENANTS OF BORROWER
3.1 No Other Liens
Borrower shall not permit, allow or cause the London Residence to be
subject to any lien or encumbrance, other than the First Legal Charge and the
Second Legal Charge, without the prior written consent of Lender, nor shall
Borrower increase the amount of debt secured by the First Legal Charge.
3.2 Further Assurances
Whenever requested by Lender, Borrower shall promptly execute and deliver
to Lender such instruments and documents as Lender may reasonably require to
further evidence the Loan or perfect or continue the perfection of Lender's
liens against and security interests in the collateral for the Loan.
3.3 Other Agreements; No Modifications
Borrower shall timely pay and perform all of its obligations under all of
the Loan Documents.
3.4 Sale of London Residence
Borrower shall make best efforts to expeditiously sell the London Residence
at a purchase price that is satisfactory to Lender.
3.5 No Sales of Other Avenue A Securities
As long as any balance on the Loan remains outstanding, Borrower will not
consensually sell any securities of Avenue A, Inc. other than sales of the
Pledged Shares pursuant to the Loan Documents.
4. DEFAULT
4.1 Event of Default
Any one or more of the following events is an Event of Default ("Event of
Default") under this Agreement.
(a) There is an Event of Default as defined under any of the other Loan
Documents.
(b) Borrower fails to pay the principal of or any installment of interest
on the Note, within five days of the date due, whether at scheduled maturity, by
acceleration, or otherwise.
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(c) Borrower shall file a voluntary petition in bankruptcy or such a
petition shall be filed against Borrower and is not dismissed within 60 days
after filing; or if Borrower shall file any petition or answer seeking or
acquiescing in any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief for itself under any present or
future federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors; or shall seek or consent to
or acquiesce in the appointment of any trustee, receiver or liquidator of
Borrower or of all or any part of the collateral encumbered by the Pledge
Agreement or the Second Legal Charge, or shall make any general assignment for
the benefit of creditors, or shall admit in writing his inability to pay his
debts generally as they become due.
(d) A court of competent jurisdiction shall enter an order, judgment or
decree approving a petition filed against Borrower seeking any reorganization,
dissolution or similar relief under any present or future federal, state or
other statute, law or regulation relating to bankruptcy, insolvency or other
relief for debtors and such order, judgment or decree shall remain unvacated and
unstayed for an aggregate of 60 days (whether or not consecutive) from the first
date of entry thereof; or any trustee, receiver or liquidator of Borrower or of
all or any part of the collateral encumbered by the Pledge Agreement or Second
Legal Charge, shall be appointed without the consent or acquiescence of Borrower
and such appointment shall remain unvacated and unstayed for an aggregate of 60
days (whether or not consecutive).
(e) The actual or attempted conveyance, assignment, transfer, mortgage,
pledge, encumbrance, hypothecation or other disposition of the London Residence
or the Pledged Securities, or Borrower's rights under this Agreement, in
violation of the terms of this Agreement or any of the other Loan Documents
without the prior written consent of Lender.
(f) Borrower fails to perform or comply with any obligation, covenant,
obligation or other term under this Agreement, the Note, the First Legal Charge,
the Second Legal Charge, or the Pledge Agreement, and that default is not
rectified within 14 days.
(g) Borrower is unable to pay their debts as they fall due or their
contingent and actual liabilities exceed the value of their assets.
(h) Borrower enters into any compromise or arrangement with their
creditors or if they propose or enter into an Individual Voluntary Arrangement
as outlined in the Insolvency Xxx 0000 or similar procedure.
(i) Borrower has a statutory demand served on them and that demand is not
withdrawn within 14 days or a bankruptcy petition is presented against them.
(j) Borrower has a winding up petition presented against them on the basis
that they are an unregistered company or partnership.
(k) A creditor or any other third party registers any charge, caution or
other encumbrance against Borrower's property, or any judgment or order for more
than (pounds)750 is obtained and that order or judgment is not withdrawn, set
aside or satisfied within 21 days.
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(l) Borrower agrees to sell the London Residence and/or the Pledged Shares
without Lender's written consent.
4.2 Inapplicability of Cure Periods
All cure periods provided in this Agreement shall be inapplicable if, in
Lender's reasonable judgment, the default is not capable of being cured within
the time allowed, or a delay in Lender's enforcement of its rights and remedies
is likely to result in a material impairment of its security.
5. REMEDIES
5.1 Acceleration
Upon the occurrence of an Event of Default, the entire amount disbursed
under the Note is immediately due and payable at the election of Lender.
5.2 Remedies Not Exclusive
No remedy conferred upon or reserved to Lender in the Loan Documents shall
be exclusive of any other remedy provided in the Loan Documents or by law or in
equity, and each shall be cumulative and shall be in addition to every other
remedy given Lender under any of the Loan Documents or now or hereafter existing
at law or in equity or by statute. Lender at its sole option, without limiting
or affecting any rights and remedies hereunder, may exercise any of the rights
and remedies to which it may be entitled under the Loan Documents concurrently
or in such order as Lender may determine. The exercise of any rights of Lender
shall not in any way constitute a cure or waiver of an Event of Default or
invalidate any act done pursuant to any notice of default or prejudice Lender in
the exercise of any of its rights. No failure of Lender to enforce its rights,
remedies, or options shall be deemed to be a waiver of any such rights, remedies
or options.
6. MISCELLANEOUS
6.1 Assignment
Borrower may not assign their rights under this Agreement or any of the
Loan Documents without the prior written consent of Lender.
6.2 Notices
(a) All notices, requests, consents, approvals, waivers and other
communications shall be in writing and mailed, faxed or delivered to the address
or facsimile number specified below (provided, however, that any matter
transmitted to the Lender by facsimile (i) shall be promptly confirmed by a
telephone call to the Lender at the number specified below and (ii) shall be
followed promptly by delivery of a hard copy original thereof) or to
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such other address or facsimile number as shall be designated by a party in a
written notice to the other party.
If to Lender:
Avenue A, Inc.
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile No. (000) 000-0000
Telephone No. (000) 000-0000
If to Borrower:
Neve Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx Xxxxxx
00, Xxxxxxxx Xxxxxx
Xxxxxx X0
XXXXXXX
Facsimile No. _______________
Telephone No. _______________
(b) All such notices, requests and communications shall, when transmitted
by overnight delivery, or faxed, be effective when delivered for overnight
(next-day) delivery, or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon receipt by the addressee, or if delivered, upon
delivery.
6.3 Third Parties
No provision of this Agreement is intended or shall be construed to be for
the benefit of any third party.
6.4 Captions
All section or paragraph division, numbering, and captions are for
convenience of reference only, and shall not affect the interpretation or
construction of this Agreement or of any term, condition, or provision hereof.
6.5 Entire Agreement; Modifications
This Agreement and the Loan Documents constitute the entire agreement of
the parties and supersede all prior negotiations, agreements or understandings
and may not be contradicted by evidence of any alleged oral agreement. No
modification or amendment of this Agreement or the Loan Documents shall be
effective unless set forth in writing and signed by Lender and Borrower.
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6.6 Counterparts
This Agreement may be executed in one or more counterparts, all of which
together shall constitute one and the same original.
6.7 Severability
If any term or provision of this Agreement is illegal or invalid for any
reason, such illegality or invalidity shall not affect the enforceability of the
remaining provisions of this Agreement and the other Loan Documents.
6.8 Term
This Agreement shall remain in effect until the Loan has been repaid in
full.
6.9 Nature of Liability
Whenever two or more persons are referenced in the term "Borrower" herein,
the liabilities and obligations of such persons under the Loan Documents shall
be joint and several.
6.10 Governing Law
This Agreement shall be governed by English law.
6.11 Jurisdiction
It is agreed, for the sole benefit of Lender, that the courts of England
and Wales shall have non-exclusive jurisdiction to settle any claim, dispute,
difference or issue which may arise out of or in connection with this Agreement
and the parties to this Agreement hereby irrevocably submit to such
jurisdiction. Any judgement, order or decision of said courts in respect of any
such claim, dispute, difference or issue may be enforced by any court of any
state which, under the laws and rules applicable in that state, is competent or
able to grant such enforcement.
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ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
written above.
EXECUTED by )
AVENUE A, INC. )
acting by the undermentioned )
person(s) on the authority of )
the company in accordance )
with the laws of the territory )
of its incorporation: )
Authorised signatory
Authorised signatory
SIGNED by )
NEVE XXXXXXX XXXXXX )
SIGNED by )
XXX XXXXXXXXX XXXXXX )
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