Exhibit 10(bq)
CANAL CAPITAL CORPORATION
First Amendment
to
Amended and Restated Variable Rate Mortgage Note Due May 15, 1996
This First Amendment to the Amended and Restated Variable Rate
Mortgage Note due May 15, 1996 ( Amendment ), dated as of May 15, 1996,
is made and entered into by and between Canal Capital Corporation, a
Delaware corporation (the Company ), and Deltec Asset Management
Corporation (the Holder ).
Whereas, the Company is obligated to the Holder pursuant to its
Amended and Restated Variable Rate Mortgage Note Due May 15, 1996 (the
Note ) issued pursuant to that certain Note Exchange Agreement dated as
of May 15, 1993 (the Agreement ); and
Whereas, the Company has requested that the Holder consent to the
extension of the maturity of the Notes and to other various changes in
the terms of the Notes;
Now, therefore, in consideration of the foregoing, the Company and
the Holder hereby agree as follows:
1. Amendment to Note.
(a). The reference to May 15, 1996" in the title of the Note
shall be amended to read May 15, 1998".
(b). The reference to May 15, 1996" in the introductory
paragraph of the Note shall be amended to read May 15, 1998.
(c). The reference to May 15, 1996" in Section 1.(c) shall
be amended to read May 15, 1998.
(d). The Note shall be amended by adding thereto the
following new provision at the end of Section 2:
2.1. (a) For each quarterly period commencing on May 15, 1995
and continuing to and including May 14, 1996, this Note shall bear
interest, in addition to the interest provided for in Section 1 (the
Additional Interest ) at a rate per annum equal to 2.0% For each
quarterly period commencing on May 15, 1996 and continuing to and
including May 14, 1997, this Note shall bear Additional Interest at a
rate per annum equal to 3.0%. For each quarterly period commencing on
May 15, 1997 and continuing to and including May 14, 1998, this Note
shall bear Additional Interest at a rate per annum equal to 4.0%. The
rate per annum of Additional Interest for any quarterly period shall be
limited to that rate which, when added to the interest rate established
pursuant to Section 1.(c) herein, does not exceed a rate of 15% per
annum.
(b) Additional Interest shall accrue quarterly and be
added to the principal amount of this Note for the purpose of
calculating the amount of Additional Interest to be accrued. The
aggregate accrued amount of Additional Interest shall be payable on May
15, 1998 or upon the earlier repayment of the Note. The obligation to
pay Additional Interest shall be entitled to the benefits of the
security interest granted pursuant to that certain Security Agreement
dated as of May 15, 1993 entered into in connection with the Agreement.
(e) The Note shall be amended by deleting Section 5 thereof in
its entirety.
2. Deliveries by the Company. Simultaneously with the execution and
delivery of this Amendment, the Company is delivering the following
items to the Holder:
(a) Resolutions of the Board of Directors of the Company
authorizing the execution and delivery of this Amendment and the
performance by the Company of its obligations hereunder and thereunder;
(b) Copies of the Certificate of Incorporation and By-Laws of
the Company as the same may have been amended to the date of this
Amendment;
(c) The certificate of the president and secretary of the
Company, certifying to the Holder that (i) the resolutions described in
Section 2(a) above were duly adopted and are true, correct and complete
and (ii) the Certificate of Incorporation and By-Laws described in
Section 2(b) above are true, correct and complete and (iii) the Company
is in compliance with its obligations under the Note, as amended hereby;
and
(d) An opinion of counsel to the Company, addressed to and in
form and substance satisfactory to the Holder, stating that, in the
opinion of such counsel (i) the execution and delivery of this Amendment
was duly authorized by all necessary corporate actions of the Company,
and (ii) the Amendment constitutes the valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms.
3. Replacement of Note. Upon surrender by the registered holder
thereof to the Company of any Note issued prior to the date hereof, the
Company shall execute and deliver to such Holder, in exchange for the
Note so surrendered, a new Note of like tenor and representing the
principal amount outstanding on such date, as the same is amended by
this Amendment.
4. Fees. The Company shall pay a fee to the Holder equal to 2% of
the principal amount outstanding on the date hereof, payable pro rata as
follows: $25,000 in the aggregate on May 15, 1995, with the remaining
balance due in
equal amounts on the next three Interest Payment Dates.
5. Expenses. The Company shall pay all out-of-pocket costs and
expenses of the Holders incurred in connection with this Amendment,
including reasonable attorneys fees.
6. Definitions. All capitalized terms not otherwise defined
herein shall have the meaning ascribed to them in the Note.
7. Effect on Note. Except as expressly modified hereby, the Note
remains unmodified in full force and effect.
8. Authority. Each of the Company and the Holder represent and
warrant that they have all necessary power and authority to execute and
deliver this Amendment.
In witness whereof, the parties hereto have executed this Amendment
as of the date first written above.
Attest CANAL CAPITAL CORPORATION
Xxxxxxxx Xxxxxxxx By: Xxxxxxx X. Xxxxxxx
Name: Xxxxxxxx Xxxxxxxx Xxxxxxx X. Xxxxxxx
Vice President President
The foregoing Amendment is hereby
accepted on behalf of the Holder
as of the date hereof:
DELTEC ASSET MANAGEMENT CORPORATION
By:
Title: Senior V.P.
Exhibit 10(br)
CANAL CAPITAL CORPORATION
First Amendment
to
Amended and Restated Variable Rate Mortgage Note Due May 15, 1996
This First Amendment to the Amended and Restated Variable Rate
Mortgage Note due May 15, 1996 ( Amendment ), dated as of May 15, 1996,
is made and entered into by and between Canal Capital Corporation, a
Delaware corporation (the Company ), and Guaranty Reassurance Company
(the Holder ).
Whereas, the Company is obligated to the Holder pursuant to its
Amended and Restated Variable Rate Mortgage Note Due May 15, 1996 (the
Note ) issued pursuant to that certain Note Exchange Agreement dated as
of May 15, 1993 (the Agreement ); and
Whereas, the Company has requested that the Holder consent to the
extension of the maturity of the Notes and to other various changes in
the terms of the Notes;
Now, therefore, in consideration of the foregoing, the Company and
the Holder hereby agree as follows:
1. Amendment to Note.
(a). The reference to May 15, 1996" in the title of the Note
shall be amended to read May 15, 1998".
(b). The reference to May 15, 1996" in the introductory
paragraph of the Note shall be amended to read May 15, 1998.
(c). The reference to May 15, 1996" in Section 1.(c) shall
be amended to read May 15, 1998.
(d). The Note shall be amended by adding thereto the
following new provision at the end of Section 2:
2.1. (a) For each quarterly period commencing on May 15, 1995
and continuing to and including May 14, 1996, this Note shall bear
interest, in addition to the interest provided for in Section 1 (the
Additional Interest ) at a rate per annum equal to 2.0% For each
quarterly period commencing on May 15, 1996 and continuing to and
including May 14, 1997, this Note shall bear Additional Interest at a
rate per annum equal to 3.0%. For each quarterly period commencing on
May 15, 1997 and continuing to and including May 14, 1998, this Note
shall bear Additional Interest at a rate per annum equal to 4.0%. The
rate per annum of Additional Interest for any quarterly period shall be
limited to that rate which, when added to the interest rate established
pursuant to Section 1.(c) herein, does not exceed a rate of 15% per
annum.
(b) Additional Interest shall accrue quarterly and be
added to the principal amount of this Note for the purpose of
calculating the amount of Additional Interest to be accrued. The
aggregate accrued amount of Additional Interest shall be payable on May
15, 1998 or upon the earlier repayment of the Note. The obligation to
pay Additional Interest shall be entitled to the benefits of the
security interest granted pursuant to that certain Security Agreement
dated as of May 15, 1993 entered into in connection with the Agreement.
(e) The Note shall be amended by deleting Section 5 thereof in
its entirety.
2. Deliveries by the Company. Simultaneously with the execution and
delivery of this Amendment, the Company is delivering the following
items to the Holder:
(a) Resolutions of the Board of Directors of the Company
authorizing the execution and delivery of this Amendment and the
performance by the Company of its obligations hereunder and thereunder;
(b) Copies of the Certificate of Incorporation and By-Laws of
the Company as the same may have been amended to the date of this
Amendment;
(c) The certificate of the president and secretary of the
Company, certifying to the Holder that (i) the resolutions described in
Section 2(a) above were duly adopted and are true, correct and complete
and (ii) the Certificate of Incorporation and By-Laws described in
Section 2(b) above are true, correct and complete and (iii) the Company
is in compliance with its obligations under the Note, as amended hereby;
and
(d) An opinion of counsel to the Company, addressed to and in
form and substance satisfactory to the Holder, stating that, in the
opinion of such counsel (i) the execution and delivery of this Amendment
was duly authorized by all necessary corporate actions of the Company,
and (ii) the Amendment constitutes the valid and binding obligation of
the Company, enforceable against the Company in accordance with its
terms.
3. Replacement of Note. Upon surrender by the registered holder
thereof to the Company of any Note issued prior to the date hereof, the
Company shall execute and deliver to such Holder, in exchange for the
Note so surrendered, a new Note of like tenor and representing the
principal amount outstanding on such date, as the same is amended by
this Amendment.
4. Fees. The Company shall pay a fee to the Holder equal to 2% of
the principal amount outstanding on the date hereof, payable pro rata as
follows: $25,000 in the aggregate on May 15, 1995, with the remaining
balance due in
equal amounts on the next three Interest Payment Dates.
5. Expenses. The Company shall pay all out-of-pocket costs and
expenses of the Holders incurred in connection with this Amendment,
including reasonable attorneys fees.
6. Definitions. All capitalized terms not otherwise defined
herein shall have the meaning ascribed to them in the Note.
7. Effect on Note. Except as expressly modified hereby, the Note
remains unmodified in full force and effect.
8. Authority. Each of the Company and the Holder represent and
warrant that they have all necessary power and authority to execute and
deliver this Amendment.
In witness whereof, the parties hereto have executed this Amendment
as of the date first written above.
Attest CANAL CAPITAL CORPORATION
Xxxxxxxx Xxxxxxxx By: Xxxxxxx X. Xxxxxxx
Name: Xxxxxxxx Xxxxxxxx Xxxxxxx X. Xxxxxxx
Vice President President
The foregoing Amendment is hereby
accepted on behalf of the Holder
as of the date hereof:
GUARANTY REASSURANCE COMPANY
By: Xxxx X. Xxxxxxxxx
Title:
By: Crescent Capital Corporation, its Investment Advisor
By: Xxxx X. Xxxxxxxxx, President
Exhibit 10(bs)
CANAL CAPITAL CORPORATION
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dated as of September 15, 1995
To each of the Persons named on
Schedule I attached hereto (the "Holders")
Re: Note Exchange Agreement
Dear Sirs:
CANAL CAPITAL CORPORATION (the "Company"), a Delaware corporation,
agrees with each of the Holders as follows:
1. Background. The parties acknowledge that the Holders
h a ve purchased, for full and fair consideration, the Company's
promissory note issued as of March 31, 1993 to Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York branch,
in the original principal amount of $3,135,751 (the "Rabobank Note") and
the Company's promissory note issued on April 16, 1993 to The DBL
Liquidating Trust in the original principal amount of $650,000 (the "DBL
Note"; together with the Rabobank Note, the "Old Notes"). The Holders
desire to exchange the Old Notes for new promissory notes of the Company
on the terms and conditions set forth herein, including without
limitation, the deferral of principal payments due under the Old Notes.
Terms that are not capitalized in the sections in which they first
appear are as defined in Section 11 below.
2. Amended and Restated Notes.
2.1. Authorization of Amended and Restated Notes. The Company
has authorized the issue of $1,032,275 aggregate principal amount of its
Amended and Restated Variable Rate Mortgage Notes due September 15, 1998
(the "New Notes", such term to include any notes issued in substitution
therefor pursuant to Section 6), to be in the form of Exhibit A attached
hereto and to bear interest as provided in such Exhibit A. The New
Notes are intended to amend, restate, supersede and replace the Old
Notes.
2.2. Exchange of Old Notes. The Company hereby issues and
delivers the New Notes to each of the Holders in the principal amounts
set forth opposite each such Holder's name on Schedule I hereto. The
New Notes amend, restate, supersede and replace in their entirety the
Old Notes. In exchange for the New Notes, the Holders hereby deliver
and surrender to the Company the Old Notes, duly endorsed to the Company
and to be cancelled immediately thereafter.
3. Representations and Warranties of the Company. As an
inducement for the Holders to enter into this Agreement, the Company
represents and warrants that:
3.1. O r g a nization, Standing, etc. The Company is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware and has all requisite corporate power
and authority to own and operate its properties, to carry on its
business as now conducted and proposed to be conducted, to enter into
this Agreement, to issue the New Note and to carry out the terms hereof
and thereof.
3.2. Qualification. The Company is duly qualified or licensed
as a foreign corporation authorized to do business in each jurisdiction
(other than the jurisdiction of its incorporation) where the nature of
its activities conducted or of the properties owned or leased by it
requires such qualification.
3.3. Authorization. The issuance and delivery by the Company
of the New Notes to the Holders has been duly authorized by all
necessary corporate action on the part of the Company.
3.4. Compliance with Other Instruments. The execution,
delivery and performance of this Agreement and the New Notes will not
result in any violation of or be in conflict with any term of the
charter or by-laws of the Company or any of its Subsidiaries or breach,
conflict with any term of, or result in a default under, any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to the Company or any of its Subsidiaries, or
result in the creation of (or impose any obligation on the Company or
any Subsidiary to create) any Lien upon any of the properties or assets
of the Company or any of its Subsidiaries pursuant to any such term.
3.5. Title to Properties; Liens. The Company has good and
sufficient title to the Collateral, and none of such Collateral is
subject to any Lien, except Liens of the character permitted by Section
7.15. The Mortgaged Property constitutes all real property of the
Company and its Subsidiaries which is not, as of the date hereof,
encumbered by mortgages or deeds of trust in favor of the holders of the
Bank Indebtedness, with the exception of the real property of the
Company located in St. Xxxx, Minnesota, known as the "Port Xxxxxx"
property.
3.6. G o v e r nmental Consent. No consent, approval or
authorization of, or declaration or filing with, any governmental
authority on the part of the Company is required for the valid execution
and delivery by the Company of this Agreement and the valid offer,
issue, sale and delivery by the Company of the New Notes as contemplated
hereby.
3.7. Solvency. Both immediately before and after giving
effect to the issuance and sale of the New Notes as contemplated hereby:
(a) the Company does not intend to incur, nor believes that it has
incurred or will incur, debts that will be beyond its ability to pay as
they mature; (b) the fair saleable value of the assets of the Company as
a whole will exceed the amount that will be required to pay the probable
liabilities on its debts (whether matured or unmatured, liquidated or
unliquidated, absolute, fixed or contingent) as they mature; and (c) the
Company is not incurring obligations or making transfers under any
evidence of indebtedness with the intent to hinder, delay, or defraud
any entity to which it is or will become indebted.
4. Representations and Warranties of the Holders.
4.1. Securities Act. Each Holder represents and warrants to
the Company that such Holder understands that the New Notes have not
been registered under the Securities Act of 1933, as amended (the
"Securities Act"), and may not be sold except pursuant to an effective
registration statement or pursuant to an available exemption from such
registration requirements. Further, such Holder is receiving the New
Notes for its own account and not with a view to or for sale in
violation of the Securities Act. Information concerning the New Notes,
the Company or any other matter relevant to the decision of the Holders
to exchange the Old Notes for the New Notes has been made available to
the Holders either in reports filed by the Company under the Exchange
Act of 1934, as amended (the "Exchange Act"), or otherwise.
4.2. Ownership; Authority; No Liens. The Holders represent
and warrant to the Company that the Holders are the sole and undivided
beneficial owners of the Old Notes which they are delivering and
surrendering to the Company pursuant to Section 2.2, have the authority
to deliver and surrender such Old Notes pursuant to the terms hereof,
and hold such Old Notes free and clear of any liens, encumbrances or
restrictions on transfer. The Holders shall indemnify the Company for
any loss or expense which it may suffer or incur as a result of any
breach of the Holders' representations in the preceding sentence.
5. Prepayment of Amended and Restated Notes.
5.1. Optional Prepayment Without Premium. So long as the New
Notes shall be outstanding, the Company may, at its option, upon notice
as provided below, prepay the New Notes in an aggregate principal amount
equal to a multiple of $10,000 and greater than $100,000. Not less than
five (5) Business Days prior to the date proposed for any prepayment
under this Section 5.1, the Company will give written notice of such
prepayment to each Holder, specifying such date, the principal amount of
each New Note held by such Holder to be prepaid on such date and the
amount of interest on such principal amount accrued to such date. Each
such notice of a prepayment shall be accompanied by an Officers'
Certificate specifying the source or sources of the funds being used for
such prepayment.
5.2. Prepayments to be Pro Rata. Notwithstanding anything in
this Article 5 to the contrary, the Company shall not at any time prepay
any New Note without prepaying all the New Notes on a pro rata basis at
such time.
6. Transfer and Substitution of Amended and Restated Notes.
6.1. Replacement Notes. If any Holder claims that a New Note
has been lost, destroyed or wrongfully taken, the Company shall issue a
replacement New Note. The Company may require that an indemnity bond be
posted to protect the Company from any loss that it may suffer if a New
Note is replaced, and may charge such Holder for its reasonable
expenses, including attorneys' fees, in replacing a New Note.
Every replacement New Note will be entitled to the benefits of
this Agreement.
6.2. Treasury Notes. In determining whether the Holders of
the required principal amount of New Notes have concurred in any
direction, waiver or consent, New Notes owned by the Company or any of
its Affiliates shall be disregarded.
7. Covenants of the Company.
7.1. Payment of Securities. The Company shall pay the
principal of and interest on the New Notes on the dates and in the
manner provided in the New Notes. The Company shall pay interest on
overdue principal and on overdue installments of interest at the rate
set forth in the New Notes.
7.2. Maintenance of Office. The Company agrees not to change
its name, identity or corporate structure to such an extent that any
financing statement filed in connection with the Security Agreement
would become misleading, without giving you at least thirty (30) days'
prior written notice thereof to the Holders.
7.3. Limitation on Dividends and Other Distributions. The
Company will not declare or pay any dividend or make any distribution on
its Capital Stock or to the holders of its Capital Stock (other than
dividends or distributions payable in its Capital Stock) or purchase,
redeem or otherwise acquire or retire for value, or permit any
Subsidiary to purchase, redeem or otherwise acquire or retire for value,
any such Capital Stock.
7.4. Limitation on Total Indebtedness. The Company may not
incur, create, assume or guarantee any additional Indebtedness (other
than Indebtedness which is an amendment, renewal, extension or refunding
on substantially the same terms of any existing Indebtedness), or enter
into a Capitalized Lease Obligation or any other lease not terminable
within twelve (12) months, provided, however, that the Company may enter
into a new lease of corporate office space on reasonable terms.
7.5. Limitation on Investments. The Company will not, and
will not permit any Subsidiary to, make any investment in any other
Person (including, without limitation, by way of stock purchase, capital
contribution, loan, advance, guaranty of indebtedness or creation or
assumption of any other liability), provided, however, that the Company
may purchase Investment Securities.
7.6. Prohibition Against Becoming an Investment Company. The
Company will not register as, or conduct its business or take any action
which shall cause it to become, or to be deemed to be, an "investment
company" as defined under the provisions of the Investment Company Act
of 1940.
7.7. Corporate Existence. The Company will do or cause to be
done all things necessary to preserve and keep in full force and effect
its corporate existence in accordance with its organizational documents
and the rights (charter and statutory) and franchises of the Company;
provided, however, that the Company shall not be required to preserve
any such right or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not, and will
not be, adverse in any material respect to the Holders.
7.8. Payment of Taxes and Other Claims. The Company will pay
or discharge or cause to be paid or discharged, before the same shall
become delinquent, (a) all material taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary and (b) all
lawful claims for labor, materials and supplies which, if unpaid, might
by law become a Lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which
appropriate provision has been made; and provided further, that except
with respect to property constituting Collateral, compliance with
clauses (a) and (b) above shall not be required so long as such
nonpayment is, in the judgment of the Board of Directors, desirable in
the conduct of the Company's business and such nonpayment is not
disadvantageous in any material respect to the Holders.
7.9. Notice of Defaults. In the event that the Company or any
of its Subsidiaries receives written notice from any holder of
Indebtedness that the full amount of such Indebtedness has been declared
due and payable before its maturity because of an acceleration of such
indebtedness or the occurrence of any default under such Indebtedness,
the Company will promptly give written notice to the Holders of such
declaration.
7.10. Maintenance of Properties. The Company will cause
all material properties owned by or leased to it or any Subsidiary and
used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in normal condition, repair and
working order (normal wear and tear excepted) and supplied with all
necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterment and improvements thereof, all as in
the judgment of the Company may be necessary, so that the business
carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that the Company may not
incur in any year capital expenditures exceeding $100,000, except to the
extent that any excess over such amount is made in order to maintain the
Company's real property in good working order; and provided, further,
that nothing in this Section shall prevent the Company or any Subsidiary
from discontinuing the use, operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors or of the Board
of Directors, board of trustees or managing partners of the Subsidiary
concerned, or of an officer (or other agent employed by the Company or
of any of its Subsidiaries) of the Company or such Subsidiary having
managerial responsibility for any such property, desirable in the
conduct of the business of the Company or any Subsidiary, and if such
discontinuance or disposal is not disadvantageous in any material
respect to the Holders. The Company will operate all material
properties owned by or leased to it or any Subsidiary in compliance with
all applicable federal, state and local laws, ordinances, regulations,
administrative or judicial orders, including, without limitation, those
pertaining to hazardous or toxic materials and other environmental
matters.
7.11. Compliance Certificate and Notices of Default.
(a) The Company shall deliver to each of the Holders within
90 days after the end of each fiscal year of the Company an Officers'
Certificate stating whether or not the signers know of any Default or
Event of Default by the Company that occurred during such fiscal year.
If they do know of such Default or Event of Default, the certificate
shall describe the Default and its status. The first certificate to be
delivered by the Company pursuant to this Section 7.11 shall be for the
fiscal year ending October 31, 1995.
(b) The Company shall deliver to each of the Holders prompt
written notice of any Default or Event of Default under this Agreement
by the Company, describing the Default and its status.
7.12. Financial and Other Reports.
(a) The Company will prepare, for the first three quarters of
e a c h fiscal year, quarterly financial statements substantially
equivalent to the financial statements required to be included in a
report on Form 10-Q under the Exchange Act. The Company will also
prepare, on an annual basis, complete audited consolidated financial
statements including, but not limited to, a balance sheet, a statement
of income and cash flow and all appropriate notes. All such financial
statements will be prepared in accordance with generally accepted
accounting principles consistently applied, except for changes with
which the Company's independent accountants concur, and except that
quarterly statements may be subject to year-end adjustments. The
Company will cause a copy of such financial statements to be mailed to
each of the Holders within 45 days after the close of each of the first
three quarters of each fiscal years and within 90 days after the close
of each fiscal year. In addition, to the extent that the Company files
any other reports, information or documents with the SEC, the Company
shall send copies of such reports, information and other documents to
the Holders.
(b) The Company shall cause, within thirty (30) days after
the end of each calendar month, a monthly result of operations statement
detailing the financial and operational results of the Company and its
Subsidiaries for such month, in a form currently used by the Company, to
be mailed to each of the Holders.
7.13. Waiver of Stay, Extension or Usury Laws. The
Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or
any usury law or other law which would prohibit or forgive the Company
from paying all or any portion of the principal of and/or interest on
the New Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the
performance of this Agreement; and (to the extent it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Holders, but will suffer
and permit the execution of every such power as though no such law had
been enacted.
7.14. Reference Bank. In the event that any Reference
Bank shall be unwilling or unable to act as such for the purpose of
determining LIBOR and Prime Rate on the New Notes, the Company shall
promptly appoint another leading domestic bank engaged in transactions
in Eurodollar deposits in the international Eurocurrency market to act
as such in its place.
7.15. Other Liens. Except for Permitted Encumbrances, the
Company will not grant or permit any Liens or other defects in title in
or upon the Collateral; provided, however, that the Company may grant or
permit such Liens or defects if the monetary value of the Collateral
will not be impaired by the existence of the Lien or other defect in
title in any material manner and the Company shall have delivered to
each of the Holders a copy of an Officers' Certificate to that effect.
7.16. Validity of Liens. The Company shall warrant,
preserve and defend the interest and title of the Holders to the
Mortgages and the Collateral described in the Security Agreement against
the claims of all persons and will continue to perform its obligations
pursuant thereto.
7.17. Transactions with Affiliates. Neither the Company
nor any Subsidiary shall enter into or participate in any agreements or
transactions of any kind with any Affiliates of any of the Company or
its Subsidiaries unless such transactions or agreements (i) are in the
ordinary course of business, (ii) include only terms or provisions which
are fair and equitable to the Company, (iii) require no fees, charges or
commissions other than those which are reasonable and disclosed to the
Collateral Agents, (iv) are clearly and accurately disclosed in the
Company's books and records, and (v) involve terms no less favorable to
the Company than would the terms of a similar agreement or transaction
with a Person other than an Affiliate.
7.18. No Increase in Compensation. The Company shall not,
directly or indirectly, increase the compensation in whatever form
(including, without limitation, by way of salary, benefits, or other
remuneration pursuant to any employment, service or severance agreement)
paid to Xx. Xxxxx Xxxxxxx or Mr. Xxxxxxx Xxxxxxx, by an amount greater
than five per centum (5%) per annum, except compensation by way of
common stock (either by dividend or upon new issuance) or stock options
exercisable at the then current market value.
7.19. Minimum Net Worth. The Company shall not cause or
permit the Consolidated Net Worth of itself and its Subsidiaries at the
end of any calendar month to be less than 75% of the amount reflected in
the Company's most recent balance sheet.
7.20. Negative Pledge. In the event that any property of
the Company or any of its Subsidiaries which is currently encumbered by
a Lien in favor of the holders of any Bank Indebtedness is released from
such Lien, the Company and its Subsidiaries shall not, without the prior
written consent of the Holders, thereafter encumber, mortgage, pledge or
otherwise grant, suffer or permit any Lien on such property.
8. Default and Remedies.
8.1. Events of Default. An "Event of Default" occurs if:
(a) the Company defaults in the payment of interest on any
New Note when the same becomes due and payable and the default continues
for the later of (i) a period of 30 days and (ii) 10 days after written
notice to the Company;
(b) the Company defaults in the payment of the principal of
any New Note when the same becomes due and payable at maturity, upon
redemption or otherwise;
(c) the Company fails to observe or perform any of its other
covenants contained in the New Notes or this Agreement, and such failure
to observe or perform continues uncured for a period of 30 days after
the Company's receipt of a written notice from Holders of at least 25%
in principal amount of New Notes then outstanding that specifies the
Default, demands that it be remedied and states that such notice is a
"Notice of Default";
(d) any representation or warranty at any time made by the
Company herein or any material representation or warranty which is
contained in any certificate, document, written report or financial or
other statement shall prove to have been untrue, incorrect or breached
i n any material respect on or as of the date on which such
representation or warranty was made;
(e) there shall be a default under any bond, debenture, note
or other evidence of indebtedness for money borrowed or under any
mortgage, indenture or other instrument under which there may be issued
or by which there may be secured or evidenced any indebtedness for money
borrowed by the Company or under any guaranty of payment by the Company
of indebtedness for money borrowed, whether such indebtedness or
guaranty now exists or shall hereafter be created, which default extends
beyond any period of grace provided with respect thereto and which
default relates to (i) the obligation to pay the principal of or
interest on any such indebtedness or guaranty or (ii) an obligation
other than the obligation to pay the principal of or interest on any
such indebtedness and the effect of such default is the cause, with the
giving of notice if required, such indebtedness to become due prior to
its stated maturity; provided, however, that no default under this
clause (e) shall exist if all such defaults do not relate to such
indebtedness or such guaranties with an aggregate principal amount in
excess of $100,000;
(f) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case or proceeding,
(ii) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(iii) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or
(iv) makes a general assignment for the benefit of
its creditors;
(g) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary
case or proceeding,
(ii) appoints a Custodian of the Company or for all
or substantially all of its properties, or
(iii) orders the liquidation of the Company,
and in each case the order or decree remains unstayed and in effect for
45 days;
(h) final judgments for the payment of money which in the
aggregate exceed $100,000 shall be rendered against the Company by a
court of competent jurisdiction and shall remain undischarged for a
period (during which execution shall not be effectively stayed or
bonded) of 30 days after such judgment becomes final and nonappealable;
or
(i) at any time after the date hereof, there shall be
transfers, either legally or beneficially, of more than 50% in the
aggregate of the issued and outstanding shares of common stock of the
Company.
The term "Bankruptcy Law" means Title 11 U.S. Code or any
similar Federal or state law for the relief of debtors. The term
" C u s todian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
8.2. Acceleration. If an Event of Default (other than an
Event of Default specified in Section 8.1(f) or (g)) occurs and is
continuing, the Holders of at least 25% in principal amount of the New
Notes then outstanding may, by notice to the Company, declare all unpaid
principal and accrued interest to the date of acceleration on the New
Notes then outstanding (if not then due and payable) to be due and
payable and upon any such declaration, the same shall become and be
immediately due and payable. If an Event of Default specified in
Section 8.1(f) or (g) occurs, all unpaid principal and accrued interest
on the New Notes then outstanding shall ipso facto become and be
immediately due and payable without any declaration or other act on the
part of any Holder. Upon payment of such principal amount and interest
all of the Company's obligations under the New Notes and this Agreement
shall terminate. The Holders of a majority in principal amount of the
New Notes then outstanding, by notice to the Company, may rescind an
acceleration and its consequences if (i) all existing Events of Default,
other than the non-payment of the principal of the New Notes which has
become due solely by such declaration of acceleration, have been cured
or waived, (ii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration,
has been paid, and (iii) the recision would not conflict with any
judgment or decree of a court of competent jurisdiction.
8.3. Other Remedies. If any Event of Default occurs and is
continuing, any Holder may pursue any available remedy by proceeding at
law or in equity to collect the payment of principal or interest on the
New Notes or to enforce the performance of any provision of the New
Notes or this Agreement.
A delay or omission by any Holder in exercising any right or
remedy accruing upon Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
8.4. Waiver of Past Defaults. Subject to Sections 8.5 and
9.1, the Holders of a majority in principal amount of the New Notes then
outstanding, by notice to the Company, may waive an existing Default or
Event of Default and its consequences, except that waiver of a Default
in the payment of principal or interest on any New Note shall require
the consent of all the Holders. When a Default or Event of Default is
waived, it is cured and ceases.
8.5. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Agreement, the right of any Holder to
receive payment of principal and interest on the New Notes on or after
the respective due dates expressed in the New Notes, or to bring suit
for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such
Holder; provided, however, that a Holder may not institute such a suit
if and to the extent that the institution or prosecution thereof or the
entry of judgment therein would, under applicable law, result in the
surrender, impairment, waiver or loss of the Lien on the Collateral.
9. Amendments, Supplements and Waivers.
9.1. General. The Company, when authorized by a resolution of
its Board of Directors, and the Holders may amend or supplement this
Agreement, the New Notes, the Mortgages or the Security Agreement.
Subject to Section 8.5, the Holders of a majority in principal amount of
the New Notes then outstanding may waive compliance by the Company with
any provision of this Agreement or the New Notes. However, without the
consent of each Holder affected, an amendment, supplement or waiver,
including a waiver pursuant to Section 8.4, may not:
(a) reduce the amount of the New Notes whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the rate or extend the time for payment of
interest on any New Note;
(c) reduce the principal of or extend the fixed maturity
of any New Note or alter the redemption provisions with
respect thereto;
(d) waive a Default in the payment of the principal of,
interest on or redemption payment with respect to any New
Note;
(e) make any changes to Section 8.4, 8.5 or the third
sentence of this Section 9.1; or
(f) modify the provisions of Article 10 or Article 11
hereof in a manner adverse to the Holders.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver.
Any failure by the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amendment, supplement or waiver.
9.2. Revocation and Effect of Consents. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing
consent by the Holder and every subsequent Holder of a New Note or
portion of a New Note that evidences the same debt as the consenting
Holder's New Note, even if notation of the consent is not made on any
New Note. However, any such Holder or subsequent Holder may revoke the
consent as to its New Note or portion of a New Note.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to
any amendment, supplement or waiver. If a record date is fixed, then
n o t withstanding the last sentence of the immediately preceding
paragraph, those persons who were Holders at such record date (or their
duly designated proxies), and only those persons, shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be Holders
after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it makes a change described in any of
clause (a) through (f) of Section 9.1. In that case, the amendment,
supplement or waiver shall bind each Holder of a new Note who has
consent to it and every subsequent Holder of a New Note or portion of a
New Note that evidences the same debt as the consenting Holder's New
Note.
10. Security Interest and Mortgage.
10.1. Continuation and Amendment.
(a) The Company's obligation to pay the principal amount
of and interest on the New Notes shall continue to be subject to the
security interest created by the Security Agreement and the Mortgages in
an amount equal to at least 100% of the aggregate principal amount of
the New Notes outstanding at any time.
(b) The Security Interest and the Mortgages as now or
hereafter in effect shall be held for the equal and ratable benefit and
security of the New Notes without preference, priority or distinction of
any thereof over any other by any reason, or difference in time, of
issuance, sale or otherwise, and for the enforcement and payment of
principal and interest on the New Notes in accordance with their terms.
(c) The Company and/or one or more of its Subsidiaries
has executed and delivered, filed, or recorded and/or will and/or will
cause one or more of the Subsidiaries to execute and deliver, file and
record, all instruments and documents, and has done or will do or will
cause to do all such acts and other things as are necessary to amend the
Security Agreement and the Mortgages in order to maintain, perfect and
protect the security interests of the Holders in the Collateral and the
Mortgaged Properties.
10.2. Release of Collateral. The Collateral Agent (as
defined herein) shall from time to time at the request of the Company
execute and deliver any instruments necessary or appropriate to release
all or a part of the Collateral from the Security Interest, upon
compliance by the Company with the following:
(a) Receipt by the Collateral Agent of the Company's
written notice, at least five Business Days in advance of the
requested date for the delivery of the release instruments,
requesting the Collateral Agent to execute one or more
specifically described release instruments, and certifying (A)
that no Event of Default or material Default under this
Agreement has occurred and is continuing and (B) that the
conditions of this Section 10.2 set forth below, have been
fulfilled.
(b) No release of Collateral shall be effected unless
simultaneously or prior thereto the Company has paid to the
Holders, by federal funds wire transfer, 80% of the Net
P r o ceeds from the sale or other disposition of such
Collateral.
10.3. Reliance on Opinion of Counsel. The Collateral
shall, before taking any action under this Article 10, be entitled to
receive an Opinion of Counsel, stating the legal effect of such action,
the steps necessary to consummate the same and to perfect the priority
of the Collateral Agent (as agent for the Holders) with respect to a
Lien and that such action will not be in contravention of the provisions
hereof or the New Notes.
10.4. Purchaser May Rely. A purchaser in good faith of
the Collateral or any part thereof or interest therein which is
purported to be transferred, granted or released by the Collateral Agent
as provided in this Article 10 shall not be bound (a) to ascertain, and
may rely on the authority of the Collateral Agent to execute, transfer,
grant or release, (b) to inquire as to the satisfaction of any
conditions precedent to the exercise of such authority, or (c) to see to
the application of the purchase price therefor.
10.5. Payment of Expenses. On demand of the Collateral
Agent, the Company forthwith shall pay or satisfactorily provide for all
reasonable expenditures incurred by the Collateral Agent under this
Article 10 and all such sums shall be secured thereby.
10.6. Authority of Collateral Agent. The Company may rely
on the directions of CCC Lending Corporation, a Delaware corporation, as
collateral agent with respect to the Collateral and the Mortgaged
Properties, without incurring liability therefor to the Holders, except
to the extent otherwise provided in the Collateral Agency Agreement
dated the date hereof.
11. Definitions.
11.1. "Affiliate" of any specified person means any other
person related by blood, marriage, employed by or employing, or directly
or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this
definition, "control" when used with respect to any person means the
power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
11.2. "Agreement" shall mean this letter agreement.
11.3. "Artwork" means the collateral under the Security
Agreement.
11.4. "Bank Indebtedness" means the principal of and
interest on and other amounts due on or in connection with any
Indebtedness of the Company, outstanding on the date of this Agreement.
Bank Indebtedness shall not include (i) any Indebtedness of the Company
which, by its terms or the terms of the instrument creating or
evidencing it, is subordinate in right of payment to or pari passu with
the New Notes or (ii) any Indebtedness of the Company to a Subsidiary.
11.5. "Business Day" means a day, other than a Saturday or
a Sunday, on which banks are open for business in New York, New York.
11.6. "Capitalized Lease Obligations" means Indebtedness
represented by obligations under a lease that is required to be
c a pitalized for financial reporting purposes in accordance with
g e n e r ally accepted accounting principles; the amount of such
Indebtedness shall be the capitalized amount of such obligations
determined in accordance with such
principles.
11.7. "Capital Stock " means any and all shares, interest,
participations or other equivalents (however designated) of corporate
stock.
11.8. "Collateral" means Mortgaged Property and Artwork.
11.9. "Collateral Agent" means CCC Lending Corporation, a
Delaware corporation.
11.10. "Company " means the party named as such in this
Agreement, until a successor replaces it pursuant to the Agreement, and
thereafter means the successor.
11.11. "Consolidated Net Worth" means, as of any date,
total stockholders' equity which under generally accepted accounting
principles would be included on a consolidated balance sheet of the
Company and its Subsidiaries, determined in accordance with generally
accepted accounting principles consistently applied, as of the end of
the last period for which a quarterly financial report is available,
less all goodwill, trademarks, trade names, patents, unamortized debt
discount and expense and other like intangibles that would be included
on such balance sheet.
11.12. "Default" means any event which is, or after notice
or passage of time would be, an Event of Default.
11.13. "Indebtedness" means (i) any liability of any person
(a) for borrowed money, (b) evidenced by a note, debenture or similar
instrument (including a purchase money obligation) given in connection
with the acquisition of any property or assets (other than inventory or
similar property acquired in the ordinary course of business), including
securities, or (c) for the payment of money relating to a Capitalized
Lease Obligation; (ii) any liability of others described in the
preceding clause (i) which the person has guaranteed or which is
otherwise its legal liability; and (iii) any amendment, renewal,
extension or refunding of any liability of the types referred to in
clauses (i) and (ii) above.
11.14. "Investment Securities" means (i) U.S. Government
Obligations, or (ii) securities, certificates of deposit or commercial
paper rated at least "P-1" by Xxxxx'x Investors Service, Inc. and at
least "A-1" by Standard and Poors Corporation.
11.15. "LIBOR" shall have the meaning provided in Exhibit A
annexed hereto.
11.16. "Lien" means any mortgage, liens, pledge, charge or
other security
interest or encumbrance of any kind or assignment thereof.
11.17. "Mortgages" means the mortgage that was granted by
the Company to The DBL Liquidating Trust on April 16, 1993, as assigned
to the Holder, and the mortgages that were granted by the Company to
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
Nederland", New York branch, as of March 31, 1993, as assigned to the
Holder, each as amended pursuant to Section 10.1 hereof, or such other
form as may be required by applicable state law or by local custom.
11.18. "Mortgaged Property" means property of the Company
described in or from time to time subject to the Mortgages.
11.19. "Net Proceeds" means, cash received by the Company
or any of its Subsidiaries with respect to any sale, transfer or
disposition of property after (a) reasonable provision for taxes
incurred by the Company or any of its Subsidiaries during the fiscal
year in which such sale, transfer or disposition occurred as a direct
result thereof, (b) payment of reasonable brokerage commissions and
reasonable attorneys' fees and expenses incurred as a result of such
sale, transfer or disposition, and (c) deduction of appropriate amounts
to be provided by the Company and its Subsidiaries as a reserve, in
accordance with generally accepted accounting principles consistently
applied, against any liabilities associated with such asset and retained
by the Company and its Subsidiaries after such sale, transfer or
disposition.
11.20. "Officers' Certificate" means a certificate signed
b y two officers of the Company having authority to sign such
certificates on behalf of the Company.
11.21. "Opinion of Counsel" means a written opinion from
legal counsel, who may be an employee of or counsel to the Company, and
who is reasonably acceptable to the Holder.
11.22. "Permitted Encumbrances" means (i) liens for taxes,
assessments and other governmental charges not delinquent; (2) liens for
taxes, assessments and other governmental charges already delinquent
which are currently being contested in accordance with the provisions of
the Mortgages; (3) mechanics' and materialmen's liens not filed of
r e cord and similar charges not delinquent, incident to current
permissible construction and mechanics' and materialmen's liens incident
to such construction which are filed of record but which are being
contested in accordance with the provisions of the Mortgages; (4)
mechanics', workmen's, repairmen's, materialmen's, warehousemen's and
carriers' liens and other similar liens arising in the ordinary course
of business for charges which are not delinquent, or which are being
contested in accordance with the provisions of the Mortgages; (5) liens
in respect of judgments or awards with respect to which the Company
shall in good faith currently be prosecuting an appeal or proceedings
for review in accordance with the provisions of the Mortgages, and with
respect to which the Company shall have secured a stay of execution
pending such appeal or proceedings for review; provided, however, that
the Company shall have set aside on its books adequate reserves with
respect thereto; (6) easements and rights of way, leases, reservations
or other rights of others in any property of the Company for streets,
roads, bridges, pipes, pipe lines, utilities, railroad, electric
transmission and distribution lines, telegraph and telephone lines,
flood rights, river control and development rights, sewage and drainage
rights, restrictions against pollution and zoning laws; provided,
however, that such easements, leases, reservations, rights, restrictions
and laws do not in the aggregate materially impair the usefulness of
such property for the purposes for which it is held by the Company and
do not materially impair the marketability or value of such property as
security for the New Notes; (7) leases or other occupancy agreements
existing at the date of affecting the Mortgaged Properties and any
leases or other occupancy agreements entered into by the Company or its
Affiliates which are commercially reasonable and in the ordinary course
of business; (8) the burdens of any law or governmental regulation or
permit requiring the Company to maintain certain facilities or perform
certain acts as a condition of its occupancy of or interference with any
public lands or any river or stream or navigable waters; and (9) whether
or not included in the foregoing clauses (1) through (8), all
r e s trictions, easements, rights-of-way, exceptions, reservations,
conditions, limitations, interests, covenants, agreements and other
encumbrances do not in the aggregate materially impair the value of such
property as security for the New Notes.
11.23. "Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
11.24. "Reference Bank" shall have the meaning provided in
Exhibit A annexed hereto.
11.25. "SEC" means the Securities and Exchange Commission.
11.26. "Security Agreement" means the Security Agreement as
of March 31, 1995 the Company, as debtor, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland", New York branch,
as secured party, as assigned to the Holder.
11.27. " S e c urity Interest" means the Liens on the
Collateral created by the Mortgages and by the Security Agreement.
11.28. "Subsidiary" means (i) a corporation a majority of
whose capital stock with voting power, under ordinary circumstances, to
elect directors is at the time, directly or indirectly, owned by the
Company, by the Company and a Subsidiary of the Company or by a
Subsidiary of the Company or (ii) any other person (other than a
corporation) in which the Company, a Subsidiary of the Company directly
or indirectly, at the date of determination thereof, has at least a
majority ownership interest.
11.29. "U.S. Government Obligations" means direct non-
callable obligations of, or non-callable obligations guaranteed by, the
United States of America or any person or agency controlled or
supervised by or acting as an instrumentality of the United States of
America pursuant to authority granted by the Congress of the United
States of America for the payment of which guarantee or obligation the
full faith and credit of the United States or any person or agency
controlled or supervised by or acting as an instrumentality of the
United States of America pursuant to authority granted by the Congress
of the United States is pledged.
12. Miscellaneous.
12.1. Notices. Any notice or communication shall be given
in writing and delivered in person or mailed by first-class mail
addressed if to the Company, to the addresses set forth on the first
page hereof, and if to the Holders, at such addresses as appear on the
signature pages to this Agreement.
The Company or the Holders by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Failure to mail a notice or communication to a Holder or any
defect in any notice shall not affect the sufficiency of any notice with
respect to the other Holders.
12.2. Statements Required in Certificate or Opinion. Each
Officers' Certificate or Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Agreement or in the
Security Agreement or the Mortgages shall include:
(a) a statement that the person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion or such
person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
12.3. Legal Holidays. A "Legal Holiday" is a Saturday,
Sunday or a day on which banking institutions in New York, New York are
not required to be open. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue
for the intervening period.
12.4. Governing Law. The laws of the State of New York
shall govern this Agreement without regard to principles of conflicts of
law.
12.5. No Adverse Interpretation of Other Agreements. This
Agreement may not be used to interpret another indenture, loan or debt
agreement of Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Agreement.
12.6. No Recourse Against Others. A director, officer,
employee or shareholder, as such, of the Company shall not have any
liability for any obligations of the Company under this Agreement or for
any claim based on, in respect of or by reason of such obligations or
their creation. Each Holder by accepting the New Notes waives and
releases all such liability.
12.7. Successors. All agreements of the Company in this
Agreement and the New Notes shall bind its successor.
12.8. Duplicate Originals. The parties may sign any
number of copies of this Agreement. Each signed copy shall be an
original, but all of them together represent that same agreement.
12.9. Severability. In case any provision of this
A g r e ement or in the New Notes shall be invalid, illegal or
u n enforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
SIGNATURES
IN WITNESS WHEREOF, the undersigned has caused this Agreement
to be duly executed, and its corporate seal to be hereunto affixed and
attested, all as of the date first written above.
CANAL CAPITAL CORPORATION
By:_______________________________
The foregoing Agreement is hereby
accepted by each of the Holders
as of the date hereof:
XXXXXXX X. XXXXXXX DEFINED BENEFIT TRUST
By:
Xxxxxxx X. Xxxxxxx
Trustee
c/o Xxxxxxx X. Xxxxxxx
0000 Xxxx Xxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
EDELMAN VALUE PARTNERS L.P.
By: X. X. Xxxxxxx Management Company, Inc.,
General Partner
By:
Name:
Title:
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXX X. XXXXXXX
0000 Xxxx Xxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
SES TRUST
By:
Xxxxxx X. Xxxxxxxxx
Trustee
0000 Xxxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
XXXXX X. XXXXXXX PENSION PLAN
By:
Xxxxx X. Xxxxxxx
Trustee
EXHIBIT A
CANAL CAPITAL CORPORATION
Amended and Restated Variable Rate Mortgage Note Due September 15, 1998.
No. $__________
CANAL CAPITAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the
"Company") for value received,
hereby promises to pay to , or its registered assigns
at its address of or at such
other address as may be designated by the registered holder hereof to
t h e C o m p a n y , t h e p r i n c i p al sum of
__________________________________________ Dollars on September 15, 1998
and to pay interest thereon quarterly on December 15, March 15, June 15
and September 15 (each an "Interest Payment Date"), in each year,
commencing on December 15, 1995, at the applicable rate per annum
determined as a provided below, until the principal hereof is paid or
made available for payment.
1. For each Quarterly Period commencing on September 15, 1995
and continuing to and including September 15, 1998, this Note shall bear
interest at a variable rate per annum, equal to the greatest of (i) the
Three Month Treasury Rate with respect to such quarterly period plus 600
basis points, (ii) LIBOR with respect to such Quarterly Period plus 000
xxxxx xxxxxx, (xxx) 120% of the Ten Year Treasury Rate with respect to
such Quarterly Period plus 150 basis points, or (iv) Prime Rate with
respect to such quarterly period plus 350 basis points. If the Agent
Bank cannot determine LIBOR or Prime Rate, as the case may be, for at
least five Business Days during the Rate Determination Period for any
Quarterly Period then this Note will bear interest following such
Quarterly Period at a rate per annum equal to the greatest of the
remaining variable rates with respect to such Quarterly Period. Prior
to the beginning of each Quarterly Period, the Company must compute the
interest rate for such Quarterly Period. The Company must mail notice
of the rate to each holder of a Note for each Quarterly Period.
Interest will be computed on the basis of a 360-day year of twelve 30 -
day months.
2. (a) For each Quarterly Period commencing on September
15, 1995 and continuing to and including September 14, 1996, this Note
shall bear interest, in addition to the interest provided in Section 1
(the "Additional Interest") at a rate per annum equal to 2.0%. For each
Quarterly Period commencing on September 15, 1996 and continuing to and
including September 14, 1997, this Note shall bear Additional Interest
at a rate per annum equal to 3.0%. For each Quarterly Period commencing
on September 15, 1997 and continuing to and including September 14,
1998, this Note shall bear Additional Interest at a rate per annum equal
to 4.0%. The rate per annum of Additional Interest for any quarterly
period shall be limited to the rate which, when added to the interest
rate established pursuant to Section 1.(c) herein, does not exceed a
rate of 15% per annum.
(b) Additional Interest shall accrue quarterly and be
added to the principal amount of this Note for the purpose of
calculating the amount of Additional Interest to be accrued. The
aggregate accrued amount of Additional Interest shall be payable on
September 15, 1998 or upon the earlier retirement of this Note.
3. The interest payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Note Exchange
Agreement, be paid to the person in whose name this Note is registered
at the close of business on the regular record date, which shall be the
December 15, March 15, June 15, or September 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent
lawful), will forthwith cease to be payable to the Holder on such
regular record date and shall be paid to the person in whose name this
Note is registered at the close of business on a special record date for
the payment of such defaulted interest to be fixed by the Company,
notice of which shall be given to Holders not less than 15 days prior to
such special record date. Payment of the principal of and interest on
this Note will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
and private debts, by check mailed to the address of the holder of this
Note, as specified in the first paragraph hereof.
4. Note Exchange Agreement; Limitations.
This Note is one of a duly authorized issue of Notes of the
Company (which
term includes any successor corporation under the Note Exchange
Agreement hereinafter
referred to) designated as its Variable Rate Mortgage Notes due
September 15, 1998 (the "Notes"), in the aggregate principal amount of
$1,032,275 issued pursuant to that certain Note Exchange Agreement,
dated as of September 15, 1995 (the "Note Exchange Agreement"), among
the Company and the Holders. This is one of the New Notes described in
the Note Exchange Agreement. The terms of this Note include those
stated in the Note Exchange Agreement. Reference is hereby made to the
Note Exchange Agreement and all amendments and supplements thereto for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company and the Holder and of the terms
upon which the Notes are, and are to be, delivered.
5. Security.
This Note is secured by a security interest in the Artwork and
by the Mortgages, in an amount equal to at least 100% of the aggregate
principal amount of this Note outstanding at any time and accrued
Additional Interest. The Note Exchange Agreement imposes certain limits
on the payment of dividends and other distributions on the Company's
c a pital stock, the ability of the Company to incur additional
indebtedness and the amount and type of permitted investments by the
Company. It also obligates the Company to conduct its business so as to
avoid becoming an investment company within the meaning of the
Investment Company Act of 1940. Once a year the Company must report to
the Holder with respect to its compliance with such limitations.
6. Denominations, Transfer, Exchange.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. The
Holder may transfer or exchange Notes in accordance with the Note
Exchange Agreement. The Company may require the Holder, among other
things, to furnish appropriate endorsements and transfer documents and
to pay taxes and fees required by law or permitted by the Note Exchange
Agreement.
7. Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of
it for all purposes.
8. Discharge Prior to Redemption or Maturity.
The Note Exchange Agreement will be discharged and cancelled
except for certain Sections thereof, subject to the terms of the Note
Exchange Agreement, upon the payment of the Notes, or, following the
date on which the Company has given notice to the Holder of the
repayment of the Notes upon the irrevocable deposit with the Holder of
funds or U.S. Government Obligations sufficient for such payment.
9. Amendment and Waiver.
The Note Exchange Agreement contains provisions permitting the
Holders to waive compliance by the Company with certain provisions of
the Note Exchange Agreement and certain past defaults under the Note
Exchange Agreement and their consequences. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all Future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange therefor or in
lieu hereof, whether or not notation of such consent or waiver is made
upon this Note.
10. Successor Corporation.
When a successor corporation assumes all the obligations of
its predecessor under the New Notes and the Note Exchange Agreement, the
predecessor corporation will be released from those obligations.
11. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of
interest on the Notes; default in payment of principal on them; failure
by the Company for 30 days after notice to it to comply with any of its
o t her agreements in the Note Exchange Agreement or the Notes;
acceleration or default under other Indebtedness of the Company
aggregating at least $100,000; the existence of certain unsatisfied
j u dgments aggregating at least $100,000; and certain events of
bankruptcy or insolvency. If an Event of Default occurs and is
continuing, the Holder may declare all the Notes to be due and payable
immediately in accordance with Section 7.2 of the Note Exchange
Agreement. The Holders may not enforce the Note Exchange Agreement or
the Notes except as provided in the Note Exchange Agreement.
12. No Recourse against Others.
A director, officer, employee or shareholder, as such, of the
Company shall not have any liability for any obligations of the Company
under the Notes or the Note Exchange Agreement or for any claim based
on, in respect of or by reason of, such obligations or their creation.
The Holder by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for the issue of
the New Notes.
13. Definitions.
All terms used in this Note which are defined in the Note
Exchange Agreement shall have the meanings assigned to them in the Note
Exchange Agreement.
"Three Month Discount Rate" means, with respect to any
Quarterly Period, the arithmetic average of the weekly average per annum
secondary market discount rates for three-month United States Treasury
o b ligations for the three calendar weeks constituting the Rate
Determination Period with respect to such Quarterly Period (x) as
published by the Federal Reserve Board (i) in its Statistical Release
H.15 (519), "Selected Interest Rates," which weekly per annum secondary
market discount rates presently are set forth in such Statistical
Release under the caption "U.S. Government Securities -- Treasury Bills
-- Secondary Market -- 3 Month," or (ii) if said Statistical Release
H.15 (519) is not then published, in any release comparable to
Statistical Release H.15(519), or (y) if the Federal Reserve Board shall
not then be publishing a comparable release, as published in any
official publication or release of any other United States Government
department or agency. However, if the Three Month Discount Rate cannot
be determined as provided above, then the Three Month Discount Rate
shall mean the arithmetic average of the average per annum secondary
market discount rates, based on the asked prices, for each business day
during the Rate Determination Period of all of the issues of non-
interest bearing United States Treasury obligations with a maturity of
not less than 80 nor more than 100 days from such business day (1) as
published in The Wall Street Journal, or (2) if The Wall Street Journal
shall cease such publication, based on average asked prices as quoted by
each of three United States Government securities dealers of recognized
national standing selected by the Company.
"Three Month Treasury Rate" means, with respect to any
Quarterly Period, the result of the following calculation regarding the
Three Month Discount Rate for such Quarterly Period, rounded to the
nearest basis point:
Three Month Discount Rate (%) x 365
360 - (91 x.01 x Three Month Discount Rate (%))
"Ten Year Treasury Rate" means, with respect to any date, the
arithmetic average (rounded to the nearest basis point) of the weekly
average per annum yield to maturity values adjusted to constant
maturities of ten years for the three calendar weeks constituting the
Rate Determination Period for the Quarterly Period in which such date
occurs as read from the yield curves of the most actively traded
marketable United States Treasury fixed interest rate securities (x)
constructed daily by the United States Treasury Department (i) as
published by the Federal Reserve Board in its Statistical Release H.15
(519), "Selected Interest Rates," which weekly average yield to maturity
values presently are set forth in such statistical release under the
caption "U.S. Government Securities -- Treasury Constant Maturities --
10 Year", or (ii) if said Statistical Release H.15(519) is not then
published, as published by the Federal Reserve Board in any release
comparable to its Statistical Release H.15 (519), or (iii) if the
Federal Reserve Board shall not then be publishing a comparable release,
as published in any official publication or release of any other United
States Government department or agency, or (y) if the United States
Treasury Department shall not then be constructing such yield curves, as
constructed by the Federal Reserve Board or any other United States
Government department or agency and published as set forth in (x) above.
However, if the Ten Year Treasury Rate cannot be determined as provided
above, then the Ten Year Treasury Rate shall mean the arithmetic average
(rounded to the nearest basis point) of the per annum yields to maturity
for each business day during the Rate Determination Period of all of the
issues of actively traded marketable United States Treasury fixed
interest rate securities with a maturity of not less then 117 months nor
more than 123 months from such business day (excluding all such
securities which can be surrendered at the option of the holder at face
value in payment of any federal estate tax, which provide tax benefits
to the holder or which were issued at a substantial discount) (1) as
published in The Wall Street Journal, or (2) if The Wall Street Journal
shall cease such publication, based on average asked prices (or yields)
as quoted by each of three United States Government securities dealers
of recognized national standing selected by the Company.
"LIBOR" means, with respect to any Quarterly Period, the
arithmetic average (rounded to the nearest basis point) of LIBOR for
each business day in the Rate Determination Period for such Quarterly
Period, as determined by Bankers Trust Company or its successor as the
agent bank (the "Agent Bank") of the Company in accordance with the
f o l l owing provisions. On each business day during the Rate
Determination Period with respect to such Quarterly Period, the Agent
Bank will request the principal London office of each of Bankers Trust
Company, Citibank, N.A. and Chemical Bank (the "Reference Banks", which
term shall include any successor Reference Bank or Reference Banks
appointed by the Company as provided in the Note Exchange Agreement) to
provide the Agent Bank with its offered quotation for three-month United
States dollar deposits to leading banks in the London interbank market
at approximately 11:00 A.M. (London time). LIBOR, for each such
business day, shall be the arithmetic average (rounded to the nearest
basis point) of such offered quotations of the Reference Banks for such
business day as determined by the Agent Bank. If on any business day
during a Rate Determination Period at least two but fewer than all the
Reference Banks provide the Agent Bank with such offered quotations,
LIBOR for that day shall be determined in accordance with the two
preceding sentences on the basis of the offered quotations of those
Reference Banks providing such quotations. If on any business day
during a Rate Determination Period fewer than two of the Reference Banks
provide the Agent Bank with such an offered quotation, the Agent Bank
shall not determine LIBOR for that day.
"Prime Rate" means, with respect to any Quarterly Period, the
arithmetic average (rounded to the nearest basis point) of Prime Rate
for each business day in the Rate Determination Period for such
Quarterly Period, as determined by the Agent Bank in accordance with the
f o l l owing provisions. On each business day during the Rate
Determination Period with respect to such Quarterly Period, the Agent
Bank will request the principal New York office of each of the Reference
Banks to provide the Agent Bank with the rate announced by such
Reference Bank as its prime commercial lending rate per annum at
approximately 11 A.M. (New York time). Prime Rate, for each such
business day, shall be arithmetic average (rounded to the nearest basis
point) of such rates of the Reference Banks for such business day as
determined by the Agent Bank. If on any business day during a Rate
Determination Period at least two but fewer than all the Reference Banks
provide the Agent Bank with such rates, Prime Rate for that day shall be
determined in accordance with the two preceding sentences on the basis
of the rates of those Reference Banks providing such rates. If on any
business day during a Rate Determination Period fewer than two of the
Reference Banks provide the Agent bank with such rates, the Agent Bank
shall not determine Prime Rate for that day.
"Quarterly Period" means the period from each September 15
through the next December 14, from each December 15 through the next
March 14, from each March 15 through the next June 14, or from each June
15 through the next September 14, as the case may be.
"Rate Determination Period" means, with respect to any
Quarterly Period, the three calendar weeks ending on the last Friday
that is more than 15 days prior to the first day of such Quarterly
Period.
14. Abbreviations.
Customary abbreviations may be used in the name of a
Noteholder or any assignee, such as: TEN COM (= tenant in common), TEN
ENT (= tenants by the entire entities), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian),
and U/G/M/A (= Uniform Gifts to Minors Act).
15. Copies of Note Exchange Agreement.
The Company will furnish to any Noteholder of record upon
written request without charge a copy of the Note Exchange Agreement.
Requests may be made to: Canal
Capital Corporation, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Treasurer.
16. Amendment and Restatement.
The New Notes, including this Note, amend, supersede and
replace the Old Notes, and are delivered in substitution for, but not in
payment of, the Old Notes.
IN WITNESS WHEREOF, CANAL CAPITAL CORPORATION has caused this
instrument to be executed in its corporate name by the signature of its
Vice President.
Dated: As of September 15, 1995
CANAL CAPITAL CORPORATION
Attest: By:_________________________
____________________________
ASSIGNMENT FORM
If you the holder want to assign this Variable Rate Mortgage
Note, fill in the form below and have your signatured guaranteed:
I or we assign and transfer this Variable Rate Mortgage Note to:
(Print or Type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ________________________, agent to transfer this
Variable Rate Mortgage Note on the books of the Company. The agent may
substitute another to act for him.
Dated: _____________________________ Signed:
_____________________________
_____________________________
(Sign exactly as name appears
on the other side of this Note)
Signature Guarantee
SCHEDULE I
Name of Holder Principal Amount
Xxxxxxx X. Xxxxxxx Defined Benefit Trust $150,000
Edelman Value Partners L.P. $150,000
SES Trust $300,000
Xxxx X. Xxxxxxx $182,275
Xxxxx X. Xxxxxxx Pension Plan $250,000
9
Exhibit 10(bt)
CANAL CAPITAL CORPORATION
Amended and Restated Variable Rate Mortgage Note Due September 15, 1998.
No. 1 $150,000.00
CANAL CAPITAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the
"Company") for value received,
hereby promises to pay to the XXXXXXX X. XXXXXXX DEFINED BENEFIT TRUST,
or its registered assigns at its address of c/o Xxxxxxx X. Xxxxxxx, 0000
Xxxx Xxxxxx Xxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000 or at such other
address as may be designated by the registered holder hereof to the
Company, the principal sum of One Hundred Fifty Thousand Dollars on
September 15, 1998 and to pay interest thereon quarterly on December 15,
March 15, June 15 and September 15 (each an "Interest Payment Date"), in
each year, commencing on December 15, 1995, at the applicable rate per
annum determined as a provided below, until the principal hereof is paid
or made available for payment.
17. For each Quarterly Period commencing on September 15, 1995
and continuing to and including September 15, 1998, this Note shall bear
interest at a variable rate per annum, equal to the greatest of (i) the
Three Month Treasury Rate with respect to such quarterly period plus 600
basis points, (ii) LIBOR with respect to such Quarterly Period plus 000
xxxxx xxxxxx, (xxx) 120% of the Ten Year Treasury Rate with respect to
such Quarterly Period plus 150 basis points, or (iv) Prime Rate with
respect to such quarterly period plus 350 basis points. If the Agent
Bank cannot determine LIBOR or Prime Rate, as the case may be, for at
least five Business Days during the Rate Determination Period for any
Quarterly Period then this Note will bear interest following such
Quarterly Period at a rate per annum equal to the greatest of the
remaining variable rates with respect to such Quarterly Period. Prior
to the beginning of each Quarterly Period, the Company must compute the
interest rate for such Quarterly Period. The Company must mail notice
of the rate to each holder of a Note for each Quarterly Period.
Interest will be computed on the basis of a 360-day year of twelve 30 -
day months.
18. (a) For each Quarterly Period commencing on September
15, 1995 and continuing to and including September 14, 1996, this Note
shall bear interest, in addition to the interest provided in Section 1
(the "Additional Interest") at a rate per annum equal to 2.0%. For each
Quarterly Period commencing on September 15, 1996 and continuing to and
including September 14, 1997, this Note shall bear Additional Interest
at a rate per annum equal to 3.0%. For each Quarterly Period commencing
on September 15, 1997 and continuing to and including September 14,
1998, this Note shall bear Additional Interest at a rate per annum equal
to 4.0%. The rate per annum of Additional Interest for any quarterly
period shall be limited to the rate which, when added to the interest
rate established pursuant to Section 1.(c) herein, does not exceed a
rate of 15% per annum.
10
(b) Additional Interest shall accrue quarterly and be
added to the principal amount of this Note for the purpose of
calculating the amount of Additional Interest to be accrued. The
aggregate accrued amount of Additional Interest shall be payable on
September 15, 1998 or upon the earlier retirement of this Note.
19. The interest payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Note Exchange
Agreement, be paid to the person in whose name this Note is registered
at the close of business on the regular record date, which shall be the
December 15, March 15, June 15, or September 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent
lawful), will forthwith cease to be payable to the Holder on such
regular record date and shall be paid to the person in whose name this
Note is registered at the close of business on a special record date for
the payment of such defaulted interest to be fixed by the Company,
notice of which shall be given to Holders not less than 15 days prior to
such special record date. Payment of the principal of and interest on
this Note will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
and private debts, by check mailed to the address of the holder of this
Note, as specified in the first paragraph hereof.
20. Note Exchange Agreement; Limitations.
This Note is one of a duly authorized issue of Notes of the
Company (which
term includes any successor corporation under the Note Exchange
Agreement hereinafter
referred to) designated as its Variable Rate Mortgage Notes due
September 15, 1998 (the "Notes"), in the aggregate principal amount of
$1,032,275 issued pursuant to that certain Note Exchange Agreement,
dated as of September 15, 1995 (the "Note Exchange Agreement"), among
the Company and the Holders. This is one of the New Notes described in
the Note Exchange Agreement. The terms of this Note include those
stated in the Note Exchange Agreement. Reference is hereby made to the
Note Exchange Agreement and all amendments and supplements thereto for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company and the Holder and of the terms
upon which the Notes are, and are to be, delivered.
21. Security.
This Note is secured by a security interest in the Artwork and
by the Mortgages, in an amount equal to at least 100% of the aggregate
principal amount of this Note outstanding at any time and accrued
Additional Interest. The Note Exchange Agreement imposes certain limits
on the payment of dividends and other distributions on the Company's
c a pital stock, the ability of the Company to incur additional
11
indebtedness and the amount and type of permitted investments by the
Company. It also obligates the Company to conduct its business so as to
avoid becoming an investment company within the meaning of the
Investment Company Act of 1940. Once a year the Company must report to
the Holder with respect to its compliance with such limitations.
22. Denominations, Transfer, Exchange.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. The
Holder may transfer or exchange Notes in accordance with the Note
Exchange Agreement. The Company may require the Holder, among other
things, to furnish appropriate endorsements and transfer documents and
to pay taxes and fees required by law or permitted by the Note Exchange
Agreement.
23. Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of
it for all purposes.
24. Discharge Prior to Redemption or Maturity.
The Note Exchange Agreement will be discharged and cancelled
except for certain Sections thereof, subject to the terms of the Note
Exchange Agreement, upon the payment of the Notes, or, following the
date on which the Company has given notice to the Holder of the
repayment of the Notes upon the irrevocable deposit with the Holder of
funds or U.S. Government Obligations sufficient for such payment.
25. Amendment and Waiver.
The Note Exchange Agreement contains provisions permitting the
Holders to waive compliance by the Company with certain provisions of
the Note Exchange Agreement and certain past defaults under the Note
Exchange Agreement and their consequences. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all Future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange therefor or in
lieu hereof, whether or not notation of such consent or waiver is made
upon this Note.
26. Successor Corporation.
When a successor corporation assumes all the obligations of
its predecessor under the New Notes and the Note Exchange Agreement, the
predecessor corporation will be released from those obligations.
27. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of
12
interest on the Notes; default in payment of principal on them; failure
by the Company for 30 days after notice to it to comply with any of its
o t her agreements in the Note Exchange Agreement or the Notes;
acceleration or default under other Indebtedness of the Company
aggregating at least $100,000; the existence of certain unsatisfied
j u dgments aggregating at least $100,000; and certain events of
bankruptcy or insolvency. If an Event of Default occurs and is
continuing, the Holder may declare all the Notes to be due and payable
immediately in accordance with Section 7.2 of the Note Exchange
Agreement. The Holders may not enforce the Note Exchange Agreement or
the Notes except as provided in the Note Exchange Agreement.
28. No Recourse against Others.
A director, officer, employee or shareholder, as such, of the
Company shall not have any liability for any obligations of the Company
under the Notes or the Note Exchange Agreement or for any claim based
on, in respect of or by reason of, such obligations or their creation.
The Holder by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for the issue of
the New Notes.
29. Definitions.
All terms used in this Note which are defined in the Note
Exchange Agreement shall have the meanings assigned to them in the Note
Exchange Agreement.
"Three Month Discount Rate" means, with respect to any
Quarterly Period, the arithmetic average of the weekly average per annum
secondary market discount rates for three-month United States Treasury
o b ligations for the three calendar weeks constituting the Rate
Determination Period with respect to such Quarterly Period (x) as
published by the Federal Reserve Board (i) in its Statistical Release
H.15 (519), "Selected Interest Rates," which weekly per annum secondary
market discount rates presently are set forth in such Statistical
Release under the caption "U.S. Government Securities -- Treasury Bills
-- Secondary Market -- 3 Month," or (ii) if said Statistical Release
H.15 (519) is not then published, in any release comparable to
Statistical Release H.15(519), or (y) if the Federal Reserve Board shall
not then be publishing a comparable release, as published in any
official publication or release of any other United States Government
department or agency. However, if the Three Month Discount Rate cannot
be determined as provided above, then the Three Month Discount Rate
shall mean the arithmetic average of the average per annum secondary
market discount rates, based on the asked prices, for each business day
during the Rate Determination Period of all of the issues of non-
interest bearing United States Treasury obligations with a maturity of
not less than 80 nor more than 100 days from such business day (1) as
published in The Wall Street Journal, or (2) if The Wall Street Journal
shall cease such publication, based on average asked prices as quoted by
13
each of three United States Government securities dealers of recognized
national standing selected by the Company.
"Three Month Treasury Rate" means, with respect to any
Quarterly Period, the result of the following calculation regarding the
Three Month Discount Rate for such Quarterly Period, rounded to the
nearest basis point:
Three Month Discount Rate (%) x 365
360 - (91 x.01 x Three Month Discount Rate (%))
"Ten Year Treasury Rate" means, with respect to any date, the
arithmetic average (rounded to the nearest basis point) of the weekly
average per annum yield to maturity values adjusted to constant
maturities of ten years for the three calendar weeks constituting the
Rate Determination Period for the Quarterly Period in which such date
occurs as read from the yield curves of the most actively traded
marketable United States Treasury fixed interest rate securities (x)
constructed daily by the United States Treasury Department (i) as
published by the Federal Reserve Board in its Statistical Release H.15
(519), "Selected Interest Rates," which weekly average yield to maturity
values presently are set forth in such statistical release under the
caption "U.S. Government Securities -- Treasury Constant Maturities --
10 Year", or (ii) if said Statistical Release H.15(519) is not then
published, as published by the Federal Reserve Board in any release
comparable to its Statistical Release H.15 (519), or (iii) if the
Federal Reserve Board shall not then be publishing a comparable release,
as published in any official publication or release of any other United
States Government department or agency, or (y) if the United States
Treasury Department shall not then be constructing such yield curves, as
constructed by the Federal Reserve Board or any other United States
Government department or agency and published as set forth in (x) above.
However, if the Ten Year Treasury Rate cannot be determined as provided
above, then the Ten Year Treasury Rate shall mean the arithmetic average
(rounded to the nearest basis point) of the per annum yields to maturity
for each business day during the Rate Determination Period of all of the
issues of actively traded marketable United States Treasury fixed
interest rate securities with a maturity of not less then 117 months nor
more than 123 months from such business day (excluding all such
securities which can be surrendered at the option of the holder at face
value in payment of any federal estate tax, which provide tax benefits
to the holder or which were issued at a substantial discount) (1) as
published in The Wall Street Journal, or (2) if The Wall Street Journal
shall cease such publication, based on average asked prices (or yields)
as quoted by each of three United States Government securities dealers
of recognized national standing selected by the Company.
"LIBOR" means, with respect to any Quarterly Period, the
arithmetic average (rounded to the nearest basis point) of LIBOR for
each business day in the Rate Determination Period for such Quarterly
Period, as determined by Bankers Trust Company or its successor as the
14
agent bank (the "Agent Bank") of the Company in accordance with the
f o l l owing provisions. On each business day during the Rate
Determination Period with respect to such Quarterly Period, the Agent
Bank will request the principal London office of each of Bankers Trust
Company, Citibank, N.A. and Chemical Bank (the "Reference Banks", which
term shall include any successor Reference Bank or Reference Banks
appointed by the Company as provided in the Note Exchange Agreement) to
provide the Agent Bank with its offered quotation for three-month United
States dollar deposits to leading banks in the London interbank market
at approximately 11:00 A.M. (London time). LIBOR, for each such
business day, shall be the arithmetic average (rounded to the nearest
basis point) of such offered quotations of the Reference Banks for such
business day as determined by the Agent Bank. If on any business day
during a Rate Determination Period at least two but fewer than all the
Reference Banks provide the Agent Bank with such offered quotations,
LIBOR for that day shall be determined in accordance with the two
preceding sentences on the basis of the offered quotations of those
Reference Banks providing such quotations. If on any business day
during a Rate Determination Period fewer than two of the Reference Banks
provide the Agent Bank with such an offered quotation, the Agent Bank
shall not determine LIBOR for that day.
"Prime Rate" means, with respect to any Quarterly Period, the
arithmetic average (rounded to the nearest basis point) of Prime Rate
for each business day in the Rate Determination Period for such
Quarterly Period, as determined by the Agent Bank in accordance with the
f o l l owing provisions. On each business day during the Rate
Determination Period with respect to such Quarterly Period, the Agent
Bank will request the principal New York office of each of the Reference
Banks to provide the Agent Bank with the rate announced by such
Reference Bank as its prime commercial lending rate per annum at
approximately 11 A.M. (New York time). Prime Rate, for each such
business day, shall be arithmetic average (rounded to the nearest basis
point) of such rates of the Reference Banks for such business day as
determined by the Agent Bank. If on any business day during a Rate
Determination Period at least two but fewer than all the Reference Banks
provide the Agent Bank with such rates, Prime Rate for that day shall be
determined in accordance with the two preceding sentences on the basis
of the rates of those Reference Banks providing such rates. If on any
business day during a Rate Determination Period fewer than two of the
Reference Banks provide the Agent bank with such rates, the Agent Bank
shall not determine Prime Rate for that day.
"Quarterly Period" means the period from each September 15
through the next December 14, from each December 15 through the next
March 14, from each March 15 through the next June 14, or from each June
15 through the next September 14, as the case may be.
"Rate Determination Period" means, with respect to any
Quarterly Period, the three calendar weeks ending on the last Friday
that is more than 15 days prior to the first day of such Quarterly
15
Period.
30. Abbreviations.
Customary abbreviations may be used in the name of a
Noteholder or any assignee, such as: TEN COM (= tenant in common), TEN
ENT (= tenants by the entire entities), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian),
and U/G/M/A (= Uniform Gifts to Minors Act).
31. Copies of Note Exchange Agreement.
The Company will furnish to any Noteholder of record upon
written request without charge a copy of the Note Exchange Agreement.
Requests may be made to: Canal
Capital Corporation, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Treasurer.
32. Amendment and Restatement.
The New Notes, including this Note, amend, supersede and
replace the Old Notes, and are delivered in substitution for, but not in
payment of, the Old Notes.
IN WITNESS WHEREOF, CANAL CAPITAL CORPORATION has caused this
instrument to be executed in its corporate name by the signature of its
Vice President.
Dated: As of September 15, 1995
CANAL CAPITAL CORPORATION
By:/S/ XXXXXXX X. XXXXXXX
16
Exhibit 10(bu)
CANAL CAPITAL CORPORATION
Amended and Restated Variable Rate Mortgage Note Due September 15, 1998.
No. 2 $150,000.00
CANAL CAPITAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the
"Company") for value received,
hereby promises to pay to EDELMAN VALUE PARTNERS, L.P., or its
registered assigns at its address of c\o X.X. Xxxxxxx Management
Company, Inc., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other address as may be designated by the registered holder hereof to
the Company, the principal sum of One Hundred Fifty Thousand Dollars on
September 15, 1998 and to pay interest thereon quarterly on December 15,
March 15, June 15 and September 15 (each an "Interest Payment Date"), in
each year, commencing on December 15, 1995, at the applicable rate per
annum determined as a provided below, until the principal hereof is paid
or made available for payment.
33. For each Quarterly Period commencing on September 15, 1995
and continuing to and including September 15, 1998, this Note shall bear
interest at a variable rate per annum, equal to the greatest of (i) the
Three Month Treasury Rate with respect to such quarterly period plus 600
basis points, (ii) LIBOR with respect to such Quarterly Period plus 000
xxxxx xxxxxx, (xxx) 120% of the Ten Year Treasury Rate with respect to
such Quarterly Period plus 150 basis points, or (iv) Prime Rate with
respect to such quarterly period plus 350 basis points. If the Agent
Bank cannot determine LIBOR or Prime Rate, as the case may be, for at
least five Business Days during the Rate Determination Period for any
Quarterly Period then this Note will bear interest following such
Quarterly Period at a rate per annum equal to the greatest of the
remaining variable rates with respect to such Quarterly Period. Prior
to the beginning of each Quarterly Period, the Company must compute the
interest rate for such Quarterly Period. The Company must mail notice
of the rate to each holder of a Note for each Quarterly Period.
Interest will be computed on the basis of a 360-day year of twelve 30 -
day months.
34. (a) For each Quarterly Period commencing on September
15, 1995 and continuing to and including September 14, 1996, this Note
shall bear interest, in addition to the interest provided in Section 1
(the "Additional Interest") at a rate per annum equal to 2.0%. For each
Quarterly Period commencing on September 15, 1996 and continuing to and
including September 14, 1997, this Note shall bear Additional Interest
at a rate per annum equal to 3.0%. For each Quarterly Period commencing
on September 15, 1997 and continuing to and including September 14,
1998, this Note shall bear Additional Interest at a rate per annum equal
to 4.0%. The rate per annum of Additional Interest for any quarterly
period shall be limited to the rate which, when added to the interest
rate established pursuant to Section 1.(c) herein, does not exceed a
rate of 15% per annum.
(b) Additional Interest shall accrue quarterly and be
added to the principal amount of this Note for the purpose of
calculating the amount of Additional Interest to be accrued. The
aggregate accrued amount of Additional Interest shall be payable on
September 15, 1998 or upon the earlier retirement of this Note.
35. The interest payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Note Exchange
Agreement, be paid to the person in whose name this Note is registered
at the close of business on the regular record date, which shall be the
December 15, March 15, June 15, or September 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent
lawful), will forthwith cease to be payable to the Holder on such
regular record date and shall be paid to the person in whose name this
Note is registered at the close of business on a special record date for
the payment of such defaulted interest to be fixed by the Company,
notice of which shall be given to Holders not less than 15 days prior to
such special record date. Payment of the principal of and interest on
this Note will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
and private debts, by check mailed to the address of the holder of this
Note, as specified in the first paragraph hereof.
36. Note Exchange Agreement; Limitations.
This Note is one of a duly authorized issue of Notes of the
Company (which
term includes any successor corporation under the Note Exchange
Agreement hereinafter
referred to) designated as its Variable Rate Mortgage Notes due
September 15, 1998 (the "Notes"), in the aggregate principal amount of
$1,032,275 issued pursuant to that certain Note Exchange Agreement,
dated as of September 15, 1995 (the "Note Exchange Agreement"), among
the Company and the Holders. This is one of the New Notes described in
the Note Exchange Agreement. The terms of this Note include those
stated in the Note Exchange Agreement. Reference is hereby made to the
Note Exchange Agreement and all amendments and supplements thereto for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company and the Holder and of the terms
upon which the Notes are, and are to be, delivered.
37. Security.
18
This Note is secured by a security interest in the Artwork and
by the Mortgages, in an amount equal to at least 100% of the aggregate
principal amount of this Note outstanding at any time and accrued
Additional Interest. The Note Exchange Agreement imposes certain limits
on the payment of dividends and other distributions on the Company's
c a pital stock, the ability of the Company to incur additional
indebtedness and the amount and type of permitted investments by the
Company. It also obligates the Company to conduct its business so as to
avoid becoming an investment company within the meaning of the
Investment Company Act of 1940. Once a year the Company must report to
the Holder with respect to its compliance with such limitations.
38. Denominations, Transfer, Exchange.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. The
Holder may transfer or exchange Notes in accordance with the Note
Exchange Agreement. The Company may require the Holder, among other
things, to furnish appropriate endorsements and transfer documents and
to pay taxes and fees required by law or permitted by the Note Exchange
Agreement.
39. Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of
it for all purposes.
40. Discharge Prior to Redemption or Maturity.
The Note Exchange Agreement will be discharged and cancelled
except for certain Sections thereof, subject to the terms of the Note
Exchange Agreement, upon the payment of the Notes, or, following the
date on which the Company has given notice to the Holder of the
repayment of the Notes upon the irrevocable deposit with the Holder of
funds or U.S. Government Obligations sufficient for such payment.
41. Amendment and Waiver.
The Note Exchange Agreement contains provisions permitting the
Holders to waive compliance by the Company with certain provisions of
the Note Exchange Agreement and certain past defaults under the Note
Exchange Agreement and their consequences. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all Future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange therefor or in
lieu hereof, whether or not notation of such consent or waiver is made
upon this Note.
42. Successor Corporation.
When a successor corporation assumes all the obligations of
19
its predecessor under the New Notes and the Note Exchange Agreement, the
predecessor corporation will be released from those obligations.
43. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of
interest on the Notes; default in payment of principal on them; failure
by the Company for 30 days after notice to it to comply with any of its
o t her agreements in the Note Exchange Agreement or the Notes;
acceleration or default under other Indebtedness of the Company
aggregating at least $100,000; the existence of certain unsatisfied
j u dgments aggregating at least $100,000; and certain events of
bankruptcy or insolvency. If an Event of Default occurs and is
continuing, the Holder may declare all the Notes to be due and payable
immediately in accordance with Section 7.2 of the Note Exchange
Agreement. The Holders may not enforce the Note Exchange Agreement or
the Notes except as provided in the Note Exchange Agreement.
44. No Recourse against Others.
A director, officer, employee or shareholder, as such, of the
Company shall not have any liability for any obligations of the Company
under the Notes or the Note Exchange Agreement or for any claim based
on, in respect of or by reason of, such obligations or their creation.
The Holder by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for the issue of
the New Notes.
45. Definitions.
All terms used in this Note which are defined in the Note
Exchange Agreement shall have the meanings assigned to them in the Note
Exchange Agreement.
"Three Month Discount Rate" means, with respect to any
Quarterly Period, the arithmetic average of the weekly average per annum
secondary market discount rates for three-month United States Treasury
o b ligations for the three calendar weeks constituting the Rate
Determination Period with respect to such Quarterly Period (x) as
published by the Federal Reserve Board (i) in its Statistical Release
H.15 (519), "Selected Interest Rates," which weekly per annum secondary
market discount rates presently are set forth in such Statistical
Release under the caption "U.S. Government Securities -- Treasury Bills
-- Secondary Market -- 3 Month," or (ii) if said Statistical Release
H.15 (519) is not then published, in any release comparable to
Statistical Release H.15(519), or (y) if the Federal Reserve Board shall
not then be publishing a comparable release, as published in any
official publication or release of any other United States Government
department or agency. However, if the Three Month Discount Rate cannot
be determined as provided above, then the Three Month Discount Rate
shall mean the arithmetic average of the average per annum secondary
20
market discount rates, based on the asked prices, for each business day
during the Rate Determination Period of all of the issues of non-
interest bearing United States Treasury obligations with a maturity of
not less than 80 nor more than 100 days from such business day (1) as
published in The Wall Street Journal, or (2) if The Wall Street Journal
shall cease such publication, based on average asked prices as quoted by
each of three United States Government securities dealers of recognized
national standing selected by the Company.
"Three Month Treasury Rate" means, with respect to any
Quarterly Period, the result of the following calculation regarding the
Three Month Discount Rate for such Quarterly Period, rounded to the
nearest basis point:
Three Month Discount Rate (%) x 365
360 - (91 x.01 x Three Month Discount Rate (%))
"Ten Year Treasury Rate" means, with respect to any date, the
arithmetic average (rounded to the nearest basis point) of the weekly
average per annum yield to maturity values adjusted to constant
maturities of ten years for the three calendar weeks constituting the
Rate Determination Period for the Quarterly Period in which such date
occurs as read from the yield curves of the most actively traded
marketable United States Treasury fixed interest rate securities (x)
constructed daily by the United States Treasury Department (i) as
published by the Federal Reserve Board in its Statistical Release H.15
(519), "Selected Interest Rates," which weekly average yield to maturity
values presently are set forth in such statistical release under the
caption "U.S. Government Securities -- Treasury Constant Maturities --
10 Year", or (ii) if said Statistical Release H.15(519) is not then
published, as published by the Federal Reserve Board in any release
comparable to its Statistical Release H.15 (519), or (iii) if the
Federal Reserve Board shall not then be publishing a comparable release,
as published in any official publication or release of any other United
States Government department or agency, or (y) if the United States
Treasury Department shall not then be constructing such yield curves, as
constructed by the Federal Reserve Board or any other United States
Government department or agency and published as set forth in (x) above.
However, if the Ten Year Treasury Rate cannot be determined as provided
above, then the Ten Year Treasury Rate shall mean the arithmetic average
(rounded to the nearest basis point) of the per annum yields to maturity
for each business day during the Rate Determination Period of all of the
issues of actively traded marketable United States Treasury fixed
interest rate securities with a maturity of not less then 117 months nor
more than 123 months from such business day (excluding all such
securities which can be surrendered at the option of the holder at face
value in payment of any federal estate tax, which provide tax benefits
to the holder or which were issued at a substantial discount) (1) as
published in The Wall Street Journal, or (2) if The Wall Street Journal
shall cease such publication, based on average asked prices (or yields)
as quoted by each of three United States Government securities dealers
21
of recognized national standing selected by the Company.
"LIBOR" means, with respect to any Quarterly Period, the
arithmetic average (rounded to the nearest basis point) of LIBOR for
each business day in the Rate Determination Period for such Quarterly
Period, as determined by Bankers Trust Company or its successor as the
agent bank (the "Agent Bank") of the Company in accordance with the
f o l l owing provisions. On each business day during the Rate
Determination Period with respect to such Quarterly Period, the Agent
Bank will request the principal London office of each of Bankers Trust
Company, Citibank, N.A. and Chemical Bank (the "Reference Banks", which
term shall include any successor Reference Bank or Reference Banks
appointed by the Company as provided in the Note Exchange Agreement) to
provide the Agent Bank with its offered quotation for three-month United
States dollar deposits to leading banks in the London interbank market
at approximately 11:00 A.M. (London time). LIBOR, for each such
business day, shall be the arithmetic average (rounded to the nearest
basis point) of such offered quotations of the Reference Banks for such
business day as determined by the Agent Bank. If on any business day
during a Rate Determination Period at least two but fewer than all the
Reference Banks provide the Agent Bank with such offered quotations,
LIBOR for that day shall be determined in accordance with the two
preceding sentences on the basis of the offered quotations of those
Reference Banks providing such quotations. If on any business day
during a Rate Determination Period fewer than two of the Reference Banks
provide the Agent Bank with such an offered quotation, the Agent Bank
shall not determine LIBOR for that day.
"Prime Rate" means, with respect to any Quarterly Period, the
arithmetic average (rounded to the nearest basis point) of Prime Rate
for each business day in the Rate Determination Period for such
Quarterly Period, as determined by the Agent Bank in accordance with the
f o l l owing provisions. On each business day during the Rate
Determination Period with respect to such Quarterly Period, the Agent
Bank will request the principal New York office of each of the Reference
Banks to provide the Agent Bank with the rate announced by such
Reference Bank as its prime commercial lending rate per annum at
approximately 11 A.M. (New York time). Prime Rate, for each such
business day, shall be arithmetic average (rounded to the nearest basis
point) of such rates of the Reference Banks for such business day as
determined by the Agent Bank. If on any business day during a Rate
Determination Period at least two but fewer than all the Reference Banks
provide the Agent Bank with such rates, Prime Rate for that day shall be
determined in accordance with the two preceding sentences on the basis
of the rates of those Reference Banks providing such rates. If on any
business day during a Rate Determination Period fewer than two of the
Reference Banks provide the Agent bank with such rates, the Agent Bank
shall not determine Prime Rate for that day.
"Quarterly Period" means the period from each September 15
through the next December 14, from each December 15 through the next
22
March 14, from each March 15 through the next June 14, or from each June
15 through the next September 14, as the case may be.
"Rate Determination Period" means, with respect to any
Quarterly Period, the three calendar weeks ending on the last Friday
that is more than 15 days prior to the first day of such Quarterly
Period.
46. Abbreviations.
Customary abbreviations may be used in the name of a
Noteholder or any assignee, such as: TEN COM (= tenant in common), TEN
ENT (= tenants by the entire entities), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian),
and U/G/M/A (= Uniform Gifts to Minors Act).
47. Copies of Note Exchange Agreement.
The Company will furnish to any Noteholder of record upon
written request without charge a copy of the Note Exchange Agreement.
Requests may be made to: Canal
Capital Corporation, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Treasurer.
48. Amendment and Restatement.
The New Notes, including this Note, amend, supersede and
replace the Old Notes, and are delivered in substitution for, but not in
payment of, the Old Notes.
IN WITNESS WHEREOF, CANAL CAPITAL CORPORATION has caused this
instrument to be executed in its corporate name by the signature of its
Vice President.
Dated: As of September 15, 1995
CANAL CAPITAL CORPORATION
By:/S/ XXXXXXX X. XXXXXXX
23
ASSIGNMENT FORM
If you the holder want to assign this Variable Rate Mortgage
Note, fill in the form below and have your signatured guaranteed:
I or we assign and transfer this Variable Rate Mortgage Note to:
(Print or Type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ________________________, agent to transfer this
Variable Rate Mortgage Note on the books of the Company. The agent may
substitute another to act for him.
Dated: _____________________________ Signed:
_____________________________
_____________________________
(Sign exactly as name appears
on the other side of this Note)
Signature Guarantee
Exhibit 10(bv)
CANAL CAPITAL CORPORATION
Amended and Restated Variable Rate Mortgage Note Due September 15, 1998.
No. 4 $182,275.00
CANAL CAPITAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the
"Company") for value received,
hereby promises to pay to XXXX X. XXXXXXX, or her registered assigns at
her address of 0000 Xxxx Xxxxxx Xxxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000,
or at such other address as may be designated by the registered holder
hereof to the Company, the principal sum of One Hundred Eighty Two
Thousand Two Hundred Seventy Five Dollars on September 15, 1998 and to
pay interest thereon quarterly on December 15, March 15, June 15 and
September 15 (each an "Interest Payment Date"), in each year, commencing
on December 15, 1995, at the applicable rate per annum determined as a
provided below, until the principal hereof is paid or made available for
payment.
49. For each Quarterly Period commencing on September 15, 1995
and continuing to and including September 15, 1998, this Note shall bear
interest at a variable rate per annum, equal to the greatest of (i) the
Three Month Treasury Rate with respect to such quarterly period plus 600
basis points, (ii) LIBOR with respect to such Quarterly Period plus 000
xxxxx xxxxxx, (xxx) 120% of the Ten Year Treasury Rate with respect to
such Quarterly Period plus 150 basis points, or (iv) Prime Rate with
respect to such quarterly period plus 350 basis points. If the Agent
Bank cannot determine LIBOR or Prime Rate, as the case may be, for at
least five Business Days during the Rate Determination Period for any
Quarterly Period then this Note will bear interest following such
Quarterly Period at a rate per annum equal to the greatest of the
remaining variable rates with respect to such Quarterly Period. Prior
to the beginning of each Quarterly Period, the Company must compute the
interest rate for such Quarterly Period. The Company must mail notice
of the rate to each holder of a Note for each Quarterly Period.
Interest will be computed on the basis of a 360-day year of twelve 30 -
day months.
50. (a) For each Quarterly Period commencing on September
15, 1995 and continuing to and including September 14, 1996, this Note
shall bear interest, in addition to the interest provided in Section 1
(the "Additional Interest") at a rate per annum equal to 2.0%. For each
Quarterly Period commencing on September 15, 1996 and continuing to and
including September 14, 1997, this Note shall bear Additional Interest
at a rate per annum equal to 3.0%. For each Quarterly Period commencing
on September 15, 1997 and continuing to and including September 14,
1998, this Note shall bear Additional Interest at a rate per annum equal
to 4.0%. The rate per annum of Additional Interest for any quarterly
period shall be limited to the rate which, when added to the interest
rate established pursuant to Section 1.(c) herein, does not exceed a
rate of 15% per annum.
(b) Additional Interest shall accrue quarterly and be
added to the principal amount of this Note for the purpose of
25
calculating the amount of Additional Interest to be accrued. The
aggregate accrued amount of Additional Interest shall be payable on
September 15, 1998 or upon the earlier retirement of this Note.
51. The interest payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Note Exchange
Agreement, be paid to the person in whose name this Note is registered
at the close of business on the regular record date, which shall be the
December 15, March 15, June 15, or September 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent
lawful), will forthwith cease to be payable to the Holder on such
regular record date and shall be paid to the person in whose name this
Note is registered at the close of business on a special record date for
the payment of such defaulted interest to be fixed by the Company,
notice of which shall be given to Holders not less than 15 days prior to
such special record date. Payment of the principal of and interest on
this Note will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
and private debts, by check mailed to the address of the holder of this
Note, as specified in the first paragraph hereof.
52. Note Exchange Agreement; Limitations.
This Note is one of a duly authorized issue of Notes of the
Company (which
term includes any successor corporation under the Note Exchange
Agreement hereinafter
referred to) designated as its Variable Rate Mortgage Notes due
September 15, 1998 (the "Notes"), in the aggregate principal amount of
$1,032,275 issued pursuant to that certain Note Exchange Agreement,
dated as of September 15, 1995 (the "Note Exchange Agreement"), among
the Company and the Holders. This is one of the New Notes described in
the Note Exchange Agreement. The terms of this Note include those
stated in the Note Exchange Agreement. Reference is hereby made to the
Note Exchange Agreement and all amendments and supplements thereto for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company and the Holder and of the terms
upon which the Notes are, and are to be, delivered.
53. Security.
This Note is secured by a security interest in the Artwork and
by the Mortgages, in an amount equal to at least 100% of the aggregate
principal amount of this Note outstanding at any time and accrued
Additional Interest. The Note Exchange Agreement imposes certain limits
on the payment of dividends and other distributions on the Company's
c a pital stock, the ability of the Company to incur additional
indebtedness and the amount and type of permitted investments by the
Company. It also obligates the Company to conduct its business so as to
26
avoid becoming an investment company within the meaning of the
Investment Company Act of 1940. Once a year the Company must report to
the Holder with respect to its compliance with such limitations.
54. Denominations, Transfer, Exchange.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. The
Holder may transfer or exchange Notes in accordance with the Note
Exchange Agreement. The Company may require the Holder, among other
things, to furnish appropriate endorsements and transfer documents and
to pay taxes and fees required by law or permitted by the Note Exchange
Agreement.
55. Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of
it for all purposes.
56. Discharge Prior to Redemption or Maturity.
The Note Exchange Agreement will be discharged and cancelled
except for certain Sections thereof, subject to the terms of the Note
Exchange Agreement, upon the payment of the Notes, or, following the
date on which the Company has given notice to the Holder of the
repayment of the Notes upon the irrevocable deposit with the Holder of
funds or U.S. Government Obligations sufficient for such payment.
57. Amendment and Waiver.
The Note Exchange Agreement contains provisions permitting the
Holders to waive compliance by the Company with certain provisions of
the Note Exchange Agreement and certain past defaults under the Note
Exchange Agreement and their consequences. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all Future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange therefor or in
lieu hereof, whether or not notation of such consent or waiver is made
upon this Note.
58. Successor Corporation.
When a successor corporation assumes all the obligations of
its predecessor under the New Notes and the Note Exchange Agreement, the
predecessor corporation will be released from those obligations.
59. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of
interest on the Notes; default in payment of principal on them; failure
by the Company for 30 days after notice to it to comply with any of its
27
o t her agreements in the Note Exchange Agreement or the Notes;
acceleration or default under other Indebtedness of the Company
aggregating at least $100,000; the existence of certain unsatisfied
j u dgments aggregating at least $100,000; and certain events of
bankruptcy or insolvency. If an Event of Default occurs and is
continuing, the Holder may declare all the Notes to be due and payable
immediately in accordance with Section 7.2 of the Note Exchange
Agreement. The Holders may not enforce the Note Exchange Agreement or
the Notes except as provided in the Note Exchange Agreement.
60. No Recourse against Others.
A director, officer, employee or shareholder, as such, of the
Company shall not have any liability for any obligations of the Company
under the Notes or the Note Exchange Agreement or for any claim based
on, in respect of or by reason of, such obligations or their creation.
The Holder by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for the issue of
the New Notes.
61. Definitions.
All terms used in this Note which are defined in the Note
Exchange Agreement shall have the meanings assigned to them in the Note
Exchange Agreement.
"Three Month Discount Rate" means, with respect to any
Quarterly Period, the arithmetic average of the weekly average per annum
secondary market discount rates for three-month United States Treasury
o b ligations for the three calendar weeks constituting the Rate
Determination Period with respect to such Quarterly Period (x) as
published by the Federal Reserve Board (i) in its Statistical Release
H.15 (519), "Selected Interest Rates," which weekly per annum secondary
market discount rates presently are set forth in such Statistical
Release under the caption "U.S. Government Securities -- Treasury Bills
-- Secondary Market -- 3 Month," or (ii) if said Statistical Release
H.15 (519) is not then published, in any release comparable to
Statistical Release H.15(519), or (y) if the Federal Reserve Board shall
not then be publishing a comparable release, as published in any
official publication or release of any other United States Government
department or agency. However, if the Three Month Discount Rate cannot
be determined as provided above, then the Three Month Discount Rate
shall mean the arithmetic average of the average per annum secondary
market discount rates, based on the asked prices, for each business day
during the Rate Determination Period of all of the issues of non-
interest bearing United States Treasury obligations with a maturity of
not less than 80 nor more than 100 days from such business day (1) as
published in The Wall Street Journal, or (2) if The Wall Street Journal
shall cease such publication, based on average asked prices as quoted by
each of three United States Government securities dealers of recognized
national standing selected by the Company.
28
"Three Month Treasury Rate" means, with respect to any
Quarterly Period, the result of the following calculation regarding the
Three Month Discount Rate for such Quarterly Period, rounded to the
nearest basis point:
Three Month Discount Rate (%) x 365
360 - (91 x.01 x Three Month Discount Rate (%))
"Ten Year Treasury Rate" means, with respect to any date, the
arithmetic average (rounded to the nearest basis point) of the weekly
average per annum yield to maturity values adjusted to constant
maturities of ten years for the three calendar weeks constituting the
Rate Determination Period for the Quarterly Period in which such date
occurs as read from the yield curves of the most actively traded
marketable United States Treasury fixed interest rate securities (x)
constructed daily by the United States Treasury Department (i) as
published by the Federal Reserve Board in its Statistical Release H.15
(519), "Selected Interest Rates," which weekly average yield to maturity
values presently are set forth in such statistical release under the
caption "U.S. Government Securities -- Treasury Constant Maturities --
10 Year", or (ii) if said Statistical Release H.15(519) is not then
published, as published by the Federal Reserve Board in any release
comparable to its Statistical Release H.15 (519), or (iii) if the
Federal Reserve Board shall not then be publishing a comparable release,
as published in any official publication or release of any other United
States Government department or agency, or (y) if the United States
Treasury Department shall not then be constructing such yield curves, as
constructed by the Federal Reserve Board or any other United States
Government department or agency and published as set forth in (x) above.
However, if the Ten Year Treasury Rate cannot be determined as provided
above, then the Ten Year Treasury Rate shall mean the arithmetic average
(rounded to the nearest basis point) of the per annum yields to maturity
for each business day during the Rate Determination Period of all of the
issues of actively traded marketable United States Treasury fixed
interest rate securities with a maturity of not less then 117 months nor
more than 123 months from such business day (excluding all such
securities which can be surrendered at the option of the holder at face
value in payment of any federal estate tax, which provide tax benefits
to the holder or which were issued at a substantial discount) (1) as
published in The Wall Street Journal, or (2) if The Wall Street Journal
shall cease such publication, based on average asked prices (or yields)
as quoted by each of three United States Government securities dealers
of recognized national standing selected by the Company.
"LIBOR" means, with respect to any Quarterly Period, the
arithmetic average (rounded to the nearest basis point) of LIBOR for
each business day in the Rate Determination Period for such Quarterly
Period, as determined by Bankers Trust Company or its successor as the
agent bank (the "Agent Bank") of the Company in accordance with the
f o l l owing provisions. On each business day during the Rate
Determination Period with respect to such Quarterly Period, the Agent
29
Bank will request the principal London office of each of Bankers Trust
Company, Citibank, N.A. and Chemical Bank (the "Reference Banks", which
term shall include any successor Reference Bank or Reference Banks
appointed by the Company as provided in the Note Exchange Agreement) to
provide the Agent Bank with its offered quotation for three-month United
States dollar deposits to leading banks in the London interbank market
at approximately 11:00 A.M. (London time). LIBOR, for each such
business day, shall be the arithmetic average (rounded to the nearest
basis point) of such offered quotations of the Reference Banks for such
business day as determined by the Agent Bank. If on any business day
during a Rate Determination Period at least two but fewer than all the
Reference Banks provide the Agent Bank with such offered quotations,
LIBOR for that day shall be determined in accordance with the two
preceding sentences on the basis of the offered quotations of those
Reference Banks providing such quotations. If on any business day
during a Rate Determination Period fewer than two of the Reference Banks
provide the Agent Bank with such an offered quotation, the Agent Bank
shall not determine LIBOR for that day.
"Prime Rate" means, with respect to any Quarterly Period, the
arithmetic average (rounded to the nearest basis point) of Prime Rate
for each business day in the Rate Determination Period for such
Quarterly Period, as determined by the Agent Bank in accordance with the
f o l l owing provisions. On each business day during the Rate
Determination Period with respect to such Quarterly Period, the Agent
Bank will request the principal New York office of each of the Reference
Banks to provide the Agent Bank with the rate announced by such
Reference Bank as its prime commercial lending rate per annum at
approximately 11 A.M. (New York time). Prime Rate, for each such
business day, shall be arithmetic average (rounded to the nearest basis
point) of such rates of the Reference Banks for such business day as
determined by the Agent Bank. If on any business day during a Rate
Determination Period at least two but fewer than all the Reference Banks
provide the Agent Bank with such rates, Prime Rate for that day shall be
determined in accordance with the two preceding sentences on the basis
of the rates of those Reference Banks providing such rates. If on any
business day during a Rate Determination Period fewer than two of the
Reference Banks provide the Agent bank with such rates, the Agent Bank
shall not determine Prime Rate for that day.
"Quarterly Period" means the period from each September 15
through the next December 14, from each December 15 through the next
March 14, from each March 15 through the next June 14, or from each June
15 through the next September 14, as the case may be.
"Rate Determination Period" means, with respect to any
Quarterly Period, the three calendar weeks ending on the last Friday
that is more than 15 days prior to the first day of such Quarterly
Period.
30
62. Abbreviations.
Customary abbreviations may be used in the name of a
Noteholder or any assignee, such as: TEN COM (= tenant in common), TEN
ENT (= tenants by the entire entities), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian),
and U/G/M/A (= Uniform Gifts to Minors Act).
63. Copies of Note Exchange Agreement.
The Company will furnish to any Noteholder of record upon
written request without charge a copy of the Note Exchange Agreement.
Requests may be made to: Canal
Capital Corporation, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Treasurer.
64. Amendment and Restatement.
The New Notes, including this Note, amend, supersede and
replace the Old Notes, and are delivered in substitution for, but not in
payment of, the Old Notes.
IN WITNESS WHEREOF, CANAL CAPITAL CORPORATION has caused this
instrument to be executed in its corporate name by the signature of its
Vice President.
Dated: As of September 15, 1995
CANAL CAPITAL CORPORATION
By: /S/ XXXXXXX X. XXXXXXX
Exhibit 10(bw)
31
CANAL CAPITAL CORPORATION
Amended and Restated Variable Rate Mortgage Note Due September 15, 1998.
No. 3 $300,000.00
CANAL CAPITAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the
"Company") for value received,
hereby promises to pay to SES TRUST, or its registered assigns at its
address of 0000 Xxxxxx Xxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000, or at
such other address as may be designated by the registered holder hereof
to the Company, the principal sum of Three Hundred Thousand Dollars on
September 15, 1998 and to pay interest thereon quarterly on December 15,
March 15, June 15 and September 15 (each an "Interest Payment Date"), in
each year, commencing on December 15, 1995, at the applicable rate per
annum determined as a provided below, until the principal hereof is paid
or made available for payment.
65. For each Quarterly Period commencing on September 15, 1995
and continuing to and including September 15, 1998, this Note shall bear
interest at a variable rate per annum, equal to the greatest of (i) the
Three Month Treasury Rate with respect to such quarterly period plus 600
basis points, (ii) LIBOR with respect to such Quarterly Period plus 000
xxxxx xxxxxx, (xxx) 120% of the Ten Year Treasury Rate with respect to
such Quarterly Period plus 150 basis points, or (iv) Prime Rate with
respect to such quarterly period plus 350 basis points. If the Agent
Bank cannot determine LIBOR or Prime Rate, as the case may be, for at
least five Business Days during the Rate Determination Period for any
Quarterly Period then this Note will bear interest following such
Quarterly Period at a rate per annum equal to the greatest of the
remaining variable rates with respect to such Quarterly Period. Prior
to the beginning of each Quarterly Period, the Company must compute the
interest rate for such Quarterly Period. The Company must mail notice
of the rate to each holder of a Note for each Quarterly Period.
Interest will be computed on the basis of a 360-day year of twelve 30 -
day months.
66. (a) For each Quarterly Period commencing on September
15, 1995 and continuing to and including September 14, 1996, this Note
shall bear interest, in addition to the interest provided in Section 1
(the "Additional Interest") at a rate per annum equal to 2.0%. For each
Quarterly Period commencing on September 15, 1996 and continuing to and
including September 14, 1997, this Note shall bear Additional Interest
at a rate per annum equal to 3.0%. For each Quarterly Period commencing
on September 15, 1997 and continuing to and including September 14,
1998, this Note shall bear Additional Interest at a rate per annum equal
to 4.0%. The rate per annum of Additional Interest for any quarterly
period shall be limited to the rate which, when added to the interest
rate established pursuant to Section 1.(c) herein, does not exceed a
rate of 15% per annum.
(b) Additional Interest shall accrue quarterly and be
added to the principal amount of this Note for the purpose of
calculating the amount of Additional Interest to be accrued. The
aggregate accrued amount of Additional Interest shall be payable on
September 15, 1998 or upon the earlier retirement of this Note.
67. The interest payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Note Exchange
Agreement, be paid to the person in whose name this Note is registered
at the close of business on the regular record date, which shall be the
December 15, March 15, June 15, or September 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent
lawful), will forthwith cease to be payable to the Holder on such
regular record date and shall be paid to the person in whose name this
Note is registered at the close of business on a special record date for
the payment of such defaulted interest to be fixed by the Company,
notice of which shall be given to Holders not less than 15 days prior to
such special record date. Payment of the principal of and interest on
this Note will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
and private debts, by check mailed to the address of the holder of this
Note, as specified in the first paragraph hereof.
68. Note Exchange Agreement; Limitations.
This Note is one of a duly authorized issue of Notes of the
Company (which
term includes any successor corporation under the Note Exchange
Agreement hereinafter
referred to) designated as its Variable Rate Mortgage Notes due
September 15, 1998 (the "Notes"), in the aggregate principal amount of
$1,032,275 issued pursuant to that certain Note Exchange Agreement,
dated as of September 15, 1995 (the "Note Exchange Agreement"), among
the Company and the Holders. This is one of the New Notes described in
the Note Exchange Agreement. The terms of this Note include those
stated in the Note Exchange Agreement. Reference is hereby made to the
Note Exchange Agreement and all amendments and supplements thereto for a
statement of the respective rights, limitations of rights, duties and
33
immunities thereunder of the Company and the Holder and of the terms
upon which the Notes are, and are to be, delivered.
69. Security.
This Note is secured by a security interest in the Artwork and
by the Mortgages, in an amount equal to at least 100% of the aggregate
principal amount of this Note outstanding at any time and accrued
Additional Interest. The Note Exchange Agreement imposes certain limits
on the payment of dividends and other distributions on the Company's
c a pital stock, the ability of the Company to incur additional
indebtedness and the amount and type of permitted investments by the
Company. It also obligates the Company to conduct its business so as to
avoid becoming an investment company within the meaning of the
Investment Company Act of 1940. Once a year the Company must report to
the Holder with respect to its compliance with such limitations.
70. Denominations, Transfer, Exchange.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. The
Holder may transfer or exchange Notes in accordance with the Note
Exchange Agreement. The Company may require the Holder, among other
things, to furnish appropriate endorsements and transfer documents and
to pay taxes and fees required by law or permitted by the Note Exchange
Agreement.
71. Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of
it for all purposes.
72. Discharge Prior to Redemption or Maturity.
The Note Exchange Agreement will be discharged and cancelled
except for certain Sections thereof, subject to the terms of the Note
Exchange Agreement, upon the payment of the Notes, or, following the
date on which the Company has given notice to the Holder of the
repayment of the Notes upon the irrevocable deposit with the Holder of
funds or U.S. Government Obligations sufficient for such payment.
73. Amendment and Waiver.
The Note Exchange Agreement contains provisions permitting the
Holders to waive compliance by the Company with certain provisions of
the Note Exchange Agreement and certain past defaults under the Note
Exchange Agreement and their consequences. Any such consent or waiver
34
by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all Future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange therefor or in
lieu hereof, whether or not notation of such consent or waiver is made
upon this Note.
74. Successor Corporation.
When a successor corporation assumes all the obligations of
its predecessor under the New Notes and the Note Exchange Agreement, the
predecessor corporation will be released from those obligations.
75. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of
interest on the Notes; default in payment of principal on them; failure
by the Company for 30 days after notice to it to comply with any of its
o t her agreements in the Note Exchange Agreement or the Notes;
acceleration or default under other Indebtedness of the Company
aggregating at least $100,000; the existence of certain unsatisfied
j u dgments aggregating at least $100,000; and certain events of
bankruptcy or insolvency. If an Event of Default occurs and is
continuing, the Holder may declare all the Notes to be due and payable
immediately in accordance with Section 7.2 of the Note Exchange
Agreement. The Holders may not enforce the Note Exchange Agreement or
the Notes except as provided in the Note Exchange Agreement.
76. No Recourse against Others.
A director, officer, employee or shareholder, as such, of the
Company shall not have any liability for any obligations of the Company
under the Notes or the Note Exchange Agreement or for any claim based
on, in respect of or by reason of, such obligations or their creation.
The Holder by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for the issue of
the New Notes.
77. Definitions.
All terms used in this Note which are defined in the Note
Exchange Agreement shall have the meanings assigned to them in the Note
Exchange Agreement.
"Three Month Discount Rate" means, with respect to any
Quarterly Period, the arithmetic average of the weekly average per annum
secondary market discount rates for three-month United States Treasury
o b ligations for the three calendar weeks constituting the Rate
35
Determination Period with respect to such Quarterly Period (x) as
published by the Federal Reserve Board (i) in its Statistical Release
H.15 (519), "Selected Interest Rates," which weekly per annum secondary
market discount rates presently are set forth in such Statistical
Release under the caption "U.S. Government Securities -- Treasury Bills
-- Secondary Market -- 3 Month," or (ii) if said Statistical Release
H.15 (519) is not then published, in any release comparable to
Statistical Release H.15(519), or (y) if the Federal Reserve Board shall
not then be publishing a comparable release, as published in any
official publication or release of any other United States Government
department or agency. However, if the Three Month Discount Rate cannot
be determined as provided above, then the Three Month Discount Rate
shall mean the arithmetic average of the average per annum secondary
market discount rates, based on the asked prices, for each business day
during the Rate Determination Period of all of the issues of non-
interest bearing United States Treasury obligations with a maturity of
not less than 80 nor more than 100 days from such business day (1) as
published in The Wall Street Journal, or (2) if The Wall Street Journal
shall cease such publication, based on average asked prices as quoted by
each of three United States Government securities dealers of recognized
national standing selected by the Company.
"Three Month Treasury Rate" means, with respect to any
Quarterly Period, the result of the following calculation regarding the
Three Month Discount Rate for such Quarterly Period, rounded to the
nearest basis point:
Three Month Discount Rate (%) x 365
360 - (91 x.01 x Three Month Discount Rate (%))
"Ten Year Treasury Rate" means, with respect to any date, the
arithmetic average (rounded to the nearest basis point) of the weekly
average per annum yield to maturity values adjusted to constant
maturities of ten years for the three calendar weeks constituting the
Rate Determination Period for the Quarterly Period in which such date
occurs as read from the yield curves of the most actively traded
marketable United States Treasury fixed interest rate securities (x)
constructed daily by the United States Treasury Department (i) as
published by the Federal Reserve Board in its Statistical Release H.15
(519), "Selected Interest Rates," which weekly average yield to maturity
values presently are set forth in such statistical release under the
caption "U.S. Government Securities -- Treasury Constant Maturities --
10 Year", or (ii) if said Statistical Release H.15(519) is not then
published, as published by the Federal Reserve Board in any release
comparable to its Statistical Release H.15 (519), or (iii) if the
Federal Reserve Board shall not then be publishing a comparable release,
as published in any official publication or release of any other United
36
States Government department or agency, or (y) if the United States
Treasury Department shall not then be constructing such yield curves, as
constructed by the Federal Reserve Board or any other United States
Government department or agency and published as set forth in (x) above.
However, if the Ten Year Treasury Rate cannot be determined as provided
above, then the Ten Year Treasury Rate shall mean the arithmetic average
(rounded to the nearest basis point) of the per annum yields to maturity
for each business day during the Rate Determination Period of all of the
issues of actively traded marketable United States Treasury fixed
interest rate securities with a maturity of not less then 117 months nor
more than 123 months from such business day (excluding all such
securities which can be surrendered at the option of the holder at face
value in payment of any federal estate tax, which provide tax benefits
to the holder or which were issued at a substantial discount) (1) as
published in The Wall Street Journal, or (2) if The Wall Street Journal
shall cease such publication, based on average asked prices (or yields)
as quoted by each of three United States Government securities dealers
of recognized national standing selected by the Company.
"LIBOR" means, with respect to any Quarterly Period, the
arithmetic average (rounded to the nearest basis point) of LIBOR for
each business day in the Rate Determination Period for such Quarterly
Period, as determined by Bankers Trust Company or its successor as the
agent bank (the "Agent Bank") of the Company in accordance with the
f o l l owing provisions. On each business day during the Rate
Determination Period with respect to such Quarterly Period, the Agent
Bank will request the principal London office of each of Bankers Trust
Company, Citibank, N.A. and Chemical Bank (the "Reference Banks", which
term shall include any successor Reference Bank or Reference Banks
appointed by the Company as provided in the Note Exchange Agreement) to
provide the Agent Bank with its offered quotation for three-month United
States dollar deposits to leading banks in the London interbank market
at approximately 11:00 A.M. (London time). LIBOR, for each such
business day, shall be the arithmetic average (rounded to the nearest
basis point) of such offered quotations of the Reference Banks for such
business day as determined by the Agent Bank. If on any business day
during a Rate Determination Period at least two but fewer than all the
Reference Banks provide the Agent Bank with such offered quotations,
LIBOR for that day shall be determined in accordance with the two
preceding sentences on the basis of the offered quotations of those
Reference Banks providing such quotations. If on any business day
during a Rate Determination Period fewer than two of the Reference Banks
provide the Agent Bank with such an offered quotation, the Agent Bank
shall not determine LIBOR for that day.
"Prime Rate" means, with respect to any Quarterly Period, the
arithmetic average (rounded to the nearest basis point) of Prime Rate
37
for each business day in the Rate Determination Period for such
Quarterly Period, as determined by the Agent Bank in accordance with the
f o l l owing provisions. On each business day during the Rate
Determination Period with respect to such Quarterly Period, the Agent
Bank will request the principal New York office of each of the Reference
Banks to provide the Agent Bank with the rate announced by such
Reference Bank as its prime commercial lending rate per annum at
approximately 11 A.M. (New York time). Prime Rate, for each such
business day, shall be arithmetic average (rounded to the nearest basis
point) of such rates of the Reference Banks for such business day as
determined by the Agent Bank. If on any business day during a Rate
Determination Period at least two but fewer than all the Reference Banks
provide the Agent Bank with such rates, Prime Rate for that day shall be
determined in accordance with the two preceding sentences on the basis
of the rates of those Reference Banks providing such rates. If on any
business day during a Rate Determination Period fewer than two of the
Reference Banks provide the Agent bank with such rates, the Agent Bank
shall not determine Prime Rate for that day.
"Quarterly Period" means the period from each September 15
through the next December 14, from each December 15 through the next
March 14, from each March 15 through the next June 14, or from each June
15 through the next September 14, as the case may be.
"Rate Determination Period" means, with respect to any
Quarterly Period, the three calendar weeks ending on the last Friday
that is more than 15 days prior to the first day of such Quarterly
Period.
78. Abbreviations.
Customary abbreviations may be used in the name of a
Noteholder or any assignee, such as: TEN COM (= tenant in common), TEN
ENT (= tenants by the entire entities), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian),
and U/G/M/A (= Uniform Gifts to Minors Act).
79. Copies of Note Exchange Agreement.
The Company will furnish to any Noteholder of record upon
written request without charge a copy of the Note Exchange Agreement.
Requests may be made to: Canal
Capital Corporation, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Treasurer.
80. Amendment and Restatement.
38
The New Notes, including this Note, amend, supersede and
replace the Old Notes, and are delivered in substitution for, but not in
payment of, the Old Notes.
IN WITNESS WHEREOF, CANAL CAPITAL CORPORATION has caused this
instrument to be executed in its corporate name by the signature of its
Vice President.
Dated: As of September 15, 1995
CANAL CAPITAL CORPORATION
By:/S/ XXXXXXX X. XXXXXXX
39
ASSIGNMENT FORM
If you the holder want to assign this Variable Rate Mortgage
Note, fill in the form below and have your signatured guaranteed:
I or we assign and transfer this Variable Rate Mortgage Note to:
(Print or Type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ________________________, agent to transfer this
Variable Rate Mortgage Note on the books of the Company. The agent may
substitute another to act for him.
Dated: _____________________________ Signed:
_____________________________
_____________________________
(Sign exactly as name appears
on the other side of this Note)
Signature Guarantee
Exhibit 10(bx)
CANAL CAPITAL CORPORATION
Amended and Restated Variable Rate Mortgage Note Due September 15, 1998.
No. 5 $250,000.00
CANAL CAPITAL CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the
"Company") for value received,
hereby promises to pay to the XXXXX X. XXXXXXX PENSION PLAN, or its
registered assigns at its address of c/o Xxxxx X. Xxxxxxx, 000 X.
Xxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxx 00000, or at such other address as
may be designated by the registered holder hereof to the Company, the
principal sum of Two Hundred Fifty Thousand Dollars on September 15,
1998 and to pay interest thereon quarterly on December 15, March 15,
June 15 and September 15 (each an "Interest Payment Date"), in each
year, commencing on December 15, 1995, at the applicable rate per annum
determined as a provided below, until the principal hereof is paid or
made available for payment.
81. For each Quarterly Period commencing on September 15, 1995
and continuing to and including September 15, 1998, this Note shall bear
interest at a variable rate per annum, equal to the greatest of (i) the
Three Month Treasury Rate with respect to such quarterly period plus 600
basis points, (ii) LIBOR with respect to such Quarterly Period plus 000
xxxxx xxxxxx, (xxx) 120% of the Ten Year Treasury Rate with respect to
such Quarterly Period plus 150 basis points, or (iv) Prime Rate with
respect to such quarterly period plus 350 basis points. If the Agent
Bank cannot determine LIBOR or Prime Rate, as the case may be, for at
least five Business Days during the Rate Determination Period for any
Quarterly Period then this Note will bear interest following such
Quarterly Period at a rate per annum equal to the greatest of the
remaining variable rates with respect to such Quarterly Period. Prior
to the beginning of each Quarterly Period, the Company must compute the
interest rate for such Quarterly Period. The Company must mail notice
of the rate to each holder of a Note for each Quarterly Period.
Interest will be computed on the basis of a 360-day year of twelve 30 -
day months.
82. (a) For each Quarterly Period commencing on September
15, 1995 and continuing to and including September 14, 1996, this Note
shall bear interest, in addition to the interest provided in Section 1
(the "Additional Interest") at a rate per annum equal to 2.0%. For each
Quarterly Period commencing on September 15, 1996 and continuing to and
including September 14, 1997, this Note shall bear Additional Interest
at a rate per annum equal to 3.0%. For each Quarterly Period commencing
on September 15, 1997 and continuing to and including September 14,
1998, this Note shall bear Additional Interest at a rate per annum equal
to 4.0%. The rate per annum of Additional Interest for any quarterly
period shall be limited to the rate which, when added to the interest
rate established pursuant to Section 1.(c) herein, does not exceed a
rate of 15% per annum.
(b) Additional Interest shall accrue quarterly and be
added to the principal amount of this Note for the purpose of
calculating the amount of Additional Interest to be accrued. The
aggregate accrued amount of Additional Interest shall be payable on
41
September 15, 1998 or upon the earlier retirement of this Note.
83. The interest payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Note Exchange
Agreement, be paid to the person in whose name this Note is registered
at the close of business on the regular record date, which shall be the
December 15, March 15, June 15, or September 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for,
and any interest payable on such defaulted interest (to the extent
lawful), will forthwith cease to be payable to the Holder on such
regular record date and shall be paid to the person in whose name this
Note is registered at the close of business on a special record date for
the payment of such defaulted interest to be fixed by the Company,
notice of which shall be given to Holders not less than 15 days prior to
such special record date. Payment of the principal of and interest on
this Note will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
and private debts, by check mailed to the address of the holder of this
Note, as specified in the first paragraph hereof.
84. Note Exchange Agreement; Limitations.
This Note is one of a duly authorized issue of Notes of the
Company (which
term includes any successor corporation under the Note Exchange
Agreement hereinafter
referred to) designated as its Variable Rate Mortgage Notes due
September 15, 1998 (the "Notes"), in the aggregate principal amount of
$1,032,275 issued pursuant to that certain Note Exchange Agreement,
dated as of September 15, 1995 (the "Note Exchange Agreement"), among
the Company and the Holders. This is one of the New Notes described in
the Note Exchange Agreement. The terms of this Note include those
stated in the Note Exchange Agreement. Reference is hereby made to the
Note Exchange Agreement and all amendments and supplements thereto for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company and the Holder and of the terms
upon which the Notes are, and are to be, delivered.
85. Security.
This Note is secured by a security interest in the Artwork and
by the Mortgages, in an amount equal to at least 100% of the aggregate
principal amount of this Note outstanding at any time and accrued
Additional Interest. The Note Exchange Agreement imposes certain limits
on the payment of dividends and other distributions on the Company's
c a pital stock, the ability of the Company to incur additional
indebtedness and the amount and type of permitted investments by the
Company. It also obligates the Company to conduct its business so as to
avoid becoming an investment company within the meaning of the
Investment Company Act of 1940. Once a year the Company must report to
42
the Holder with respect to its compliance with such limitations.
86. Denominations, Transfer, Exchange.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. The
Holder may transfer or exchange Notes in accordance with the Note
Exchange Agreement. The Company may require the Holder, among other
things, to furnish appropriate endorsements and transfer documents and
to pay taxes and fees required by law or permitted by the Note Exchange
Agreement.
87. Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of
it for all purposes.
88. Discharge Prior to Redemption or Maturity.
The Note Exchange Agreement will be discharged and cancelled
except for certain Sections thereof, subject to the terms of the Note
Exchange Agreement, upon the payment of the Notes, or, following the
date on which the Company has given notice to the Holder of the
repayment of the Notes upon the irrevocable deposit with the Holder of
funds or U.S. Government Obligations sufficient for such payment.
89. Amendment and Waiver.
The Note Exchange Agreement contains provisions permitting the
Holders to waive compliance by the Company with certain provisions of
the Note Exchange Agreement and certain past defaults under the Note
Exchange Agreement and their consequences. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all Future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange therefor or in
lieu hereof, whether or not notation of such consent or waiver is made
upon this Note.
90. Successor Corporation.
When a successor corporation assumes all the obligations of
its predecessor under the New Notes and the Note Exchange Agreement, the
predecessor corporation will be released from those obligations.
91. Defaults and Remedies.
An Event of Default is: default for 30 days in payment of
interest on the Notes; default in payment of principal on them; failure
by the Company for 30 days after notice to it to comply with any of its
o t her agreements in the Note Exchange Agreement or the Notes;
acceleration or default under other Indebtedness of the Company
43
aggregating at least $100,000; the existence of certain unsatisfied
j u dgments aggregating at least $100,000; and certain events of
bankruptcy or insolvency. If an Event of Default occurs and is
continuing, the Holder may declare all the Notes to be due and payable
immediately in accordance with Section 7.2 of the Note Exchange
Agreement. The Holders may not enforce the Note Exchange Agreement or
the Notes except as provided in the Note Exchange Agreement.
92. No Recourse against Others.
A director, officer, employee or shareholder, as such, of the
Company shall not have any liability for any obligations of the Company
under the Notes or the Note Exchange Agreement or for any claim based
on, in respect of or by reason of, such obligations or their creation.
The Holder by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for the issue of
the New Notes.
93. Definitions.
All terms used in this Note which are defined in the Note
Exchange Agreement shall have the meanings assigned to them in the Note
Exchange Agreement.
"Three Month Discount Rate" means, with respect to any
Quarterly Period, the arithmetic average of the weekly average per annum
secondary market discount rates for three-month United States Treasury
o b ligations for the three calendar weeks constituting the Rate
Determination Period with respect to such Quarterly Period (x) as
published by the Federal Reserve Board (i) in its Statistical Release
H.15 (519), "Selected Interest Rates," which weekly per annum secondary
market discount rates presently are set forth in such Statistical
Release under the caption "U.S. Government Securities -- Treasury Bills
-- Secondary Market -- 3 Month," or (ii) if said Statistical Release
H.15 (519) is not then published, in any release comparable to
Statistical Release H.15(519), or (y) if the Federal Reserve Board shall
not then be publishing a comparable release, as published in any
official publication or release of any other United States Government
department or agency. However, if the Three Month Discount Rate cannot
be determined as provided above, then the Three Month Discount Rate
shall mean the arithmetic average of the average per annum secondary
market discount rates, based on the asked prices, for each business day
during the Rate Determination Period of all of the issues of non-
interest bearing United States Treasury obligations with a maturity of
not less than 80 nor more than 100 days from such business day (1) as
published in The Wall Street Journal, or (2) if The Wall Street Journal
shall cease such publication, based on average asked prices as quoted by
each of three United States Government securities dealers of recognized
national standing selected by the Company.
"Three Month Treasury Rate" means, with respect to any
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Quarterly Period, the result of the following calculation regarding the
Three Month Discount Rate for such Quarterly Period, rounded to the
nearest basis point:
Three Month Discount Rate (%) x 365
360 - (91 x.01 x Three Month Discount Rate (%))
"Ten Year Treasury Rate" means, with respect to any date, the
arithmetic average (rounded to the nearest basis point) of the weekly
average per annum yield to maturity values adjusted to constant
maturities of ten years for the three calendar weeks constituting the
Rate Determination Period for the Quarterly Period in which such date
occurs as read from the yield curves of the most actively traded
marketable United States Treasury fixed interest rate securities (x)
constructed daily by the United States Treasury Department (i) as
published by the Federal Reserve Board in its Statistical Release H.15
(519), "Selected Interest Rates," which weekly average yield to maturity
values presently are set forth in such statistical release under the
caption "U.S. Government Securities -- Treasury Constant Maturities --
10 Year", or (ii) if said Statistical Release H.15(519) is not then
published, as published by the Federal Reserve Board in any release
comparable to its Statistical Release H.15 (519), or (iii) if the
Federal Reserve Board shall not then be publishing a comparable release,
as published in any official publication or release of any other United
States Government department or agency, or (y) if the United States
Treasury Department shall not then be constructing such yield curves, as
constructed by the Federal Reserve Board or any other United States
Government department or agency and published as set forth in (x) above.
However, if the Ten Year Treasury Rate cannot be determined as provided
above, then the Ten Year Treasury Rate shall mean the arithmetic average
(rounded to the nearest basis point) of the per annum yields to maturity
for each business day during the Rate Determination Period of all of the
issues of actively traded marketable United States Treasury fixed
interest rate securities with a maturity of not less then 117 months nor
more than 123 months from such business day (excluding all such
securities which can be surrendered at the option of the holder at face
value in payment of any federal estate tax, which provide tax benefits
to the holder or which were issued at a substantial discount) (1) as
published in The Wall Street Journal, or (2) if The Wall Street Journal
shall cease such publication, based on average asked prices (or yields)
as quoted by each of three United States Government securities dealers
of recognized national standing selected by the Company.
"LIBOR" means, with respect to any Quarterly Period, the
arithmetic average (rounded to the nearest basis point) of LIBOR for
each business day in the Rate Determination Period for such Quarterly
Period, as determined by Bankers Trust Company or its successor as the
agent bank (the "Agent Bank") of the Company in accordance with the
f o l l owing provisions. On each business day during the Rate
Determination Period with respect to such Quarterly Period, the Agent
Bank will request the principal London office of each of Bankers Trust
45
Company, Citibank, N.A. and Chemical Bank (the "Reference Banks", which
term shall include any successor Reference Bank or Reference Banks
appointed by the Company as provided in the Note Exchange Agreement) to
provide the Agent Bank with its offered quotation for three-month United
States dollar deposits to leading banks in the London interbank market
at approximately 11:00 A.M. (London time). LIBOR, for each such
business day, shall be the arithmetic average (rounded to the nearest
basis point) of such offered quotations of the Reference Banks for such
business day as determined by the Agent Bank. If on any business day
during a Rate Determination Period at least two but fewer than all the
Reference Banks provide the Agent Bank with such offered quotations,
LIBOR for that day shall be determined in accordance with the two
preceding sentences on the basis of the offered quotations of those
Reference Banks providing such quotations. If on any business day
during a Rate Determination Period fewer than two of the Reference Banks
provide the Agent Bank with such an offered quotation, the Agent Bank
shall not determine LIBOR for that day.
"Prime Rate" means, with respect to any Quarterly Period, the
arithmetic average (rounded to the nearest basis point) of Prime Rate
for each business day in the Rate Determination Period for such
Quarterly Period, as determined by the Agent Bank in accordance with the
f o l l owing provisions. On each business day during the Rate
Determination Period with respect to such Quarterly Period, the Agent
Bank will request the principal New York office of each of the Reference
Banks to provide the Agent Bank with the rate announced by such
Reference Bank as its prime commercial lending rate per annum at
approximately 11 A.M. (New York time). Prime Rate, for each such
business day, shall be arithmetic average (rounded to the nearest basis
point) of such rates of the Reference Banks for such business day as
determined by the Agent Bank. If on any business day during a Rate
Determination Period at least two but fewer than all the Reference Banks
provide the Agent Bank with such rates, Prime Rate for that day shall be
determined in accordance with the two preceding sentences on the basis
of the rates of those Reference Banks providing such rates. If on any
business day during a Rate Determination Period fewer than two of the
Reference Banks provide the Agent bank with such rates, the Agent Bank
shall not determine Prime Rate for that day.
"Quarterly Period" means the period from each September 15
through the next December 14, from each December 15 through the next
March 14, from each March 15 through the next June 14, or from each June
15 through the next September 14, as the case may be.
"Rate Determination Period" means, with respect to any
Quarterly Period, the three calendar weeks ending on the last Friday
that is more than 15 days prior to the first day of such Quarterly
Period.
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94. Abbreviations.
Customary abbreviations may be used in the name of a
Noteholder or any assignee, such as: TEN COM (= tenant in common), TEN
ENT (= tenants by the entire entities), JT TEN (= joint tenants with
right of survivorship and not as tenants in common), CUST (= Custodian),
and U/G/M/A (= Uniform Gifts to Minors Act).
95. Copies of Note Exchange Agreement.
The Company will furnish to any Noteholder of record upon
written request without charge a copy of the Note Exchange Agreement.
Requests may be made to: Canal
Capital Corporation, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Treasurer.
96. Amendment and Restatement.
The New Notes, including this Note, amend, supersede and
replace the Old Notes, and are delivered in substitution for, but not in
payment of, the Old Notes.
IN WITNESS WHEREOF, CANAL CAPITAL CORPORATION has caused this
instrument to be executed in its corporate name by the signature of its
Vice President.
Dated: As of September 15, 1995
CANAL CAPITAL CORPORATION
By:/S/ XXXXXXX X. XXXXXXX
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ASSIGNMENT FORM
If you the holder want to assign this Variable Rate Mortgage
Note, fill in the form below and have your signatured guaranteed:
I or we assign and transfer this Variable Rate Mortgage Note to:
(Print or Type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ________________________, agent to transfer this
Variable Rate Mortgage Note on the books of the Company. The agent may
substitute another to act for him.
Dated: _____________________________ Signed:
_____________________________
_____________________________
(Sign exactly as name appears
on the other side of this Note)
Signature Guarantee
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