FIRST AMENDMENT TO ASSUMPTION AGREEMENT
XXXXX FARGO BANK, NATIONAL ASSOCIATION, the successor in interest to
First Interstate Bank of Oregon, N.A., ("Bank") and COLUMBIA SPORTSWEAR
COMPANY, an Oregon corporation ("Columbia Sportswear"), hereby amend their
March 8, 1996 Assumption Agreement ("Agreement") as follows:
1. AMENDMENT TO SECTION 7. The second paragraph of Section 7 of the
Agreement is hereby amended in its entirety to read as follows:
"DSCR" means, as of a date, the ratio of Columbia
Sportswear's EBITDA for the four most recently ended fiscal
quarters to Columbia Sportswear's Fixed Charges for the four
most recently ended fiscal quarters. "EBITDA" means, for
any period, net income for the period, after deducting all
expenses other than interest, taxes, depreciation, depletion
and amortization and after eliminating all extraordinary
items (as determined in accordance with generally accepted
accounting principles) and all charges characterized as
unusual charges by Columbia Sportswear's independent
certified public accountants. "Fixed Charges" means, for
any period, the total of: (i) scheduled or required
principal payments of long term debt; (ii) scheduled or
required payments of capitalized lease obligations; and
(iii) interest expense.
2. EFFECTIVE DATE. This First Amendment shall be effective on the
termination of Columbia Sportswear's S corporation election for federal
income tax purposes.
3. RATIFICATION. Except as otherwise provided in this First Amendment,
all of the provisions of the Agreement are hereby ratified and confirmed, and
shall remain in full force and effect.
4. ONE AGREEMENT. The Agreement, as modified by the provisions of this
First Amendment, shall be construed as one agreement.
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IN WITNESS WHEREOF, this First Amendment has been duly executed by Columbia
Sportswear and Bank as of March 23, 1998.
COLUMBIA SPORTSWEAR COMPANY
By:
---------------------------------
Title:
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XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By:
---------------------------------
Title:
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After Recording Return to:
First Interstate Bank of Oregon, N.A.
X.X. Xxx 0000
Xxxxxxxx, XX 00000
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (the "Agreement") is made this 8 day of March,
1996 by and between COLUMBIA SPORTSWEAR COMPANY ("Columbia Sportswear") and
FIRST INTERSTATE BANK OF OREGON, N.A. (the "Bank").
RECITALS:
A. Bank loaned Columbia Sportswear the principal sum of Three Million
Four Hundred Sixteen Thousand and no/100 Dollars ($3,416,000.00) (the "Loan")
pursuant to that certain loan agreement dated May 19, 1994 between Bank and
Columbia Sportswear (with any amendments, the "Loan Agreement"). The Loan
was further evidenced by that certain promissory note dated May 19, 1994 in
the original principal sum of $3,416,000.00 made by Columbia Sportswear in
favor of Bank and with an original maturity date of June 1, 2009 (with any
amendments, extensions or renewals, the "Note").
B. The Loan is secured by a commercial deed of trust (with any
amendments, the "Trust Deed") dated May 19, 1994 granted by Columbia
Sportswear, naming Chicago Title Insurance Company as trustee in favor of
Bank as beneficiary, which was subsequently amended by that certain
modification agreement (the "Modification") dated the same date hereof and
executed by Columbia Sportswear and Bank. The Trust Deed was recorded May
19, 1994, Recorder's Fee No. 94-079047, Multnomah County, Oregon, records.
The Modification will be recorded in the Multnomah County, Oregon, real
estate records. The Trust Deed, as amended by the terms of the Modification,
encumbers, among other things, the real property described in Exhibit A
attached to this Agreement and by this reference made a part of it (the "Real
Property").
C. The Loan is also secured by an assignment dated December 2, 1994
executed by Columbia Sportswear and Xxxxxxx X. Xxxxx and Xxx Xxxxxxxxx
("Borrower"), collectively as assignor, in favor of Bank (with any
amendments, the "Assignment"). The Assignment was recorded June 1, 1995 as
Recorder's Fee No. 95 64429 in the Multnomah County, Oregon, real estate
records.
D. Xxxxxxx X. Xxxxx and Xxx Xxxxxxxxx ("Borrower") acquired the Real
Property and assumed the obligations of Columbia Sportswear under the Loan
Documents (as defined
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below) pursuant to that certain Assumption Agreement dated June 8, 1994
between Columbia Sportswear, Bank and Borrower.
E. In connection with Columbia Sportswear's re-acquisition of the Real
Property, Borrower and Columbia Sportswear desire for Columbia Sportswear to
assume the obligations of Borrower to Bank under the Loan Documents (as
defined below). Bank is willing to permit such an assumption under the terms
of this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, which are
expressly incorporated in and made a part of this Agreement, and of the
mutual covenants, conditions and promises specified in this Agreement, and
for other good and valuable consideration, Columbia Sportswear and Bank agree
as follows:
1. DEFINITIONS. The term "Loan Documents" shall mean all documents
executed in connection with or contemplated by the Loan, together with all
amendments to such documents. Loan Documents include, without limitation,
the Note, the Loan Agreement, and the Trust Deed.
Capitalized terms which are defined in the foregoing recitals or other
provisions of this Agreement shall have the meaning given those terms in such
recitals or other provisions. Capitalized terms which are not defined in
this Agreement and are defined in the Loan Documents shall have the mean
given those terms in the applicable Loan Documents.
2. AGREEMENT FEE. As part of the consideration to induce Bank to
enter into this Agreement, Columbia Sportswear, upon execution of this
Agreement, shall pay to Bank a fee of One Thousand and No/100 Dollars
($1,000.00).
3. AMOUNTS DUE ON LOAN DOCUMENTS. As of the date hereto, there
remains due and owing on the Note and other Loan Documents an unpaid
principal balance of Three Million Two Hundred Eighteen Thousand Three
Hundred Eleven and 84/100 Dollars ($3,218,311.84).
4. ASSUMPTION OF LIABILITY. Columbia Sportswear assumes and agrees to
pay and perform all the liabilities and obligations of borrower as evidence
in the Loan Agreement, Note, Trust Deed, and other Loan Documents and to
abide by all the warranties and terms thereof. Columbia Sportswear agrees
that payments due Bank under the Note and other Loan Documents shall be paid
directly to Bank or through an escrow satisfactory to Bank. Notwithstanding
anything contained in the Loan Agreement, Note, Trust Deed and other Loan
Documents to the contrary, Bank shall now have full recourse to Columbia
Sportswear and its assets to recover all amounts due and owing under the Loan
Agreement, Note, Trust Deed and other Loan Documents. Bank hereby consents
to the transfer of the Real Property by Borrower to Columbia Sportswear.
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5. BORROWER RELEASED. Bank agrees that the Borrower is hereby
discharged and released from liability accruing after the date hereof under
the Loan Agreement, Note and other Loan Documents.
6. FINANCIAL INFORMATION. Within one hundred twenty (120) days of
fiscal year-end, Columbia Sportswear shall provide to Bank annually
CPA-audited financial statements. All financial statements shall be prepared
in accordance with generally accepted accounting principles in form and
substance acceptable to Bank and certified to be complete and accurate in all
respects.
7. DEBT SERVICE COVERAGE RATIO. During the term of the Loan, the debt
service coverage ratio ("DSCR") shall not be less than 1.5:1.0. If the DSCR
falls below the 1.5:1.0 ratio, the Bank may, upon thirty (30) days' written
notice specifying the amount of the required reduction, require Columbia
Sportswear to reduce the then outstanding principal balance of the Note by
such amount that the minimum 1.5:1.0 radio will be achieved.
The DSCR shall mean the radio of (a) the sum of net profit after
Subchapter-S tax distributions plus noncash charges (such as depreciation)
plus interest expense divided by (b) the sum of scheduled maturities of long
term debt and capitalized lease payments plus interest expense plus nontax
Subchapter-S distributions.
8. DEFAULT. Upon any default by Columbia Sportswear under the terms
of this Agreement, the Loan Agreement, the Note, the Trust Deed or other Loan
Documents or upon any default by Columbia Sportswear of any of its
obligations to Bank, Bank shall have all rights and remedies available to it
under this Agreement, the Loan Agreement, the Note, Trust Deed and other Loan
Documents, and at law or in equity, and all rights and remedies shall be
cumulative and not alternative. The rights and remedies include, without
limitation, declaring the entire outstanding balance of the Loan due and
payable.
9. ATTORNEY FEES. In consideration of this Agreement, Columbia
Sportswear agrees to pay the indebtedness evidenced by the Note, to perform
each and all of the conditions and covenants required to be performed by
Columbia Sportswear under this Agreement, the Loan Agreement, the Note, Trust
Deed and all other Loan Documents, and to pay all costs of Bank in connection
with preparation and recording or breach of this Agreement, including, but
not limited to, title insurance premiums, attorney fees, recording fees,
escrow fees and taxes.
As used in this Agreement or any other Loan Document, "attorney fees" shall
include attorney fees, if any, which shall be incurred whether or not legal
action is commenced and any such fees incurred at trial, arbitration,
interpleader, bankruptcy, hearing or any judicial proceeding, and on appeal.
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10. ARBITRATION PROGRAM
a. BINDING ARBITRATION. Upon the demand of any party
("Party/Parties")m to a Document (as defined below), whether made before the
institution of any judicial proceeding or not more than sixty (60) days after
service of a complaint, third party complaint, cross-claim or counterclaim or
any answer thereto or any amendments to any of the above, any Dispute (as
defined below) shall be resolved by binding arbitration in accordance with
the terms of this Arbitration Program. A "Dispute" shall include any action,
dispute, claim or controversy of any kind, whether founded in contract, tort,
statutory or common law, equity, or otherwise, now existing or hereafter
arising between any of the Parties arising out of, pertaining to or in
connection with any agreement, document or instrument to which this
Arbitration Program is attached or in which it appears or is referenced to
any related agreements, documents, or instruments ("Documents"). Any Party
who fails to submit to binding arbitration following a lawful demand by
another Party shall bear all costs and expenses, including reasonable
attorneys' fees, incurred by the other Party in obtaining a stay of any
pending judicial proceeding or compelling arbitration of any Dispute. The
parties agree that any agreement, document or instrument which includes,
attaches to or incorporates this Arbitration Program represents a transaction
involving commerce as that term is used in the Federal Arbitration Act,
("FAA") Xxxxx 0 Xxxxxx Xxxxxx Code.
b. GOVERNING RULES. Arbitrations conducted pursuant to this
Arbitration Program shall be administered by the American Arbitration
Association ("AAA"), or other mutually agreeable administrator
("Administrator") in accordance with the Commercial Arbitration Rules of the
AAA. The FAA shall govern any judicial proceedings, resolve any issue of
arbitrability, and procedurally govern any arbitration related to this
Arbitration Program. The arbitrators(s) shall resolve all Disputes in
accordance with the applicable substantive law designated in the Documents.
The Parties agree not to assert any claim for punitive damages or prejudgment
interest except to the extent such awards are specifically authorized by
statute. Judgment upon any award rendered hereunder may be entered in any
court having jurisdiction.
c. PRESERVATION OF REMEDIES. No provision of, nor the exercise of any
rights under, this arbitration clause shall limit the right of any Party to:
(1) foreclose against any real or personal property collateral or other
security, or obtain a personal or deficiency award; (2) exercise self-help
remedies (including repossession and setoff rights); or (3) obtain
provisional or ancillary remedies such as injunctive relief, sequestration,
attachment, replevin, garnishment, or the appointment of a receiver from a
court having jurisdiction. Such rights can be exercised at any time except
to the extent such action is contrary to a final award or decision in any
arbitration proceeding. The institution and maintenance of an action as
described above shall not constitute a waiver of the right of any Party to
submit the Dispute to arbitration, nor render inapplicable the compulsory
arbitration provisions hereof. Any claim or Dispute related to exercise of
any self-help, auxiliary or other rights under this paragraph shall be a
Dispute hereunder.
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d. ARBITRATOR POWERS AND QUALIFICATIONS; AWARDS. The Parties agree to
select a neutral "qualified" arbitrator or a panel of three "qualified"
arbitrators to resolve any Dispute hereunder. "Qualified" means a practicing
attorney, with not less than ten (10) years practice in commercial law,
licensed to practice in the state of the applicable substantive law
designated in the Documents. A Dispute in which the claims or amounts in
controversy do not exceed One Million and No/100 Dollars ($1,000,000.00),
shall be decided by a single arbitrator. A single arbitrator shall have
authority to render an award up to but not to exceed One Million and No/100
Dollars ($1,000,000.00) including all damages of any kind whatsoever, costs,
fees, attorneys' fees and expenses. Submission to a single arbitration shall
be a waiver of all Parties' claims to recover more than One Million and
No/100 Dollars ($1,000,000.00). A Dispute involving claims or amounts in
controversy exceeding One Million and No/100 Dollars ($1,000,000.00) shall be
decided by a majority vote of a panel of three qualified arbitrators. The
Arbitrator(s) shall not have the power to award punitive or exemplary damages
except where such damages are specifically provided for by statute upon which
the award is based. The arbitrator(s) shall be empowered to, at the written
request of any Party in any Dispute, (1) to consolidate in a single
proceeding any multiple party claims that are substantially identical; (2) to
consolidate any claims and Disputes between other Parties which arise out of
or relate to the subject matter hereof; and (3) to administer multiple
arbitration claims as class actions in accordance with Rule 23 of the Federal
Rules of Civil Procedure. The arbitrator(s) shall be empowered to resolve
any dispute regarding the terms of this arbitration clause but shall have no
power to change or alter the terms of this Arbitration Program. The
Arbitrator(s) shall have the discretion to award reasonable attorneys' fees
to the prevailing Party in any Dispute hereunder.
e. MISCELLANEOUS. All statutes of limitation applicable to any
Dispute shall apply to any proceeding in accordance with this arbitration
clause. The Parties agree, to the maximum extent practicable, to take any
action necessary to conclude an arbitration hereunder within 180 days of the
filing of a Dispute with the Administrator. The arbitrator(s) shall be
empowered to impose sanctions for any Party's failure to proceed within the
times established herein. Arbitrations shall be conducted in the state of
the applicable substantive law designated in the Documents. The provisions
of this Arbitration Program shall survive any termination, amendment, or
expiration hereof or of the Documents unless the Parties otherwise expressly
agree in writing. Each Party agrees to keep all Disputes and arbitration
proceedings strictly confidential, except for disclosures of information
required in the ordinary course of business of the Parties or as required by
applicable law or regulation. If any provision of this Arbitration Program
is declared invalid by any court, the remaining provisions shall not be
affected thereby and shall remain fully enforceable. The Parties understand
that they have decided that upon demand of any of them, their Disputes may be
resolved by arbitration rather than in a court and once so decided cannot
later be brought, filed, or pursued in court.
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11. RELEASE OF ALL CLAIMS AND WAIVER OF ALL DEFENSES. In order to
induce Bank to enter into this Agreement, Borrower and Columbia Sportswear
hereby unconditionally waive and release Bank from all claims, defense,
demands, damages, costs and causes of action of any kind or nature, known or
unknown, existing or contingent to date relating to or arising out of the
Loan, excepting therefrom, however, Bank's compliance with all of the terms
and conditions of this Agreement and future compliance by Bank with all he
terms and conditions of the Loan Agreement, Note, Trust Deed and Loan
Documents.
12. ADDITIONAL DOCUMENTS. Columbia Sportswear agrees to execute any
additional documents requested by Bank to accomplish the assumption of the
Loan by Columbia Sportswear.
13. ALL OTHER TERMS UNMODIFIED. Except as specifically provided
herein, the Loan Agreement, the Note, Trust Deed, and all other Loan
Documents shall remain in full force and effect in accordance with their
respective terms and conditions. This Agreement is subject to all of the
conditions and covenants expressed in the Loan Agreement, Note, the Trust
Deed, or in any other Loan Documents.
14. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY
BANK AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH
ARE NOT PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE
BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED
BY BANK TO BEEN ENFORCEABLE. BORROWER AND COLUMBIA SPORTSWEAR ACKNOWLEDGE
RECEIPT OF A COPY OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement on the date first above written.
COLUMBIA SPORTSWEAR COMPANY FIRST INTERSTATE BANK OF OREGON, N.A.
By /s/ Xxxxxxx X. Xxxxx By X. Xxxxxxx
-------------------------- ----------------------------
Title Pres. Title Vice President
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XXXX OF OREGON )
: ss.
County of MULTNOMAH )
The foregoing instrument was acknowledged before me this 8th day of
March, 1996 by Xxxxxxx X. Xxxxx, the President of COLUMBIA SPORTSWEAR
COMPANY, on behalf of the corporation.
/s/ Xxxx X. Xxxxxx
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Notary Public
STATE OF OREGON )
: ss.
County of MULTNOMAH )
The foregoing instrument was acknowledged before me this 11 day of March,
1996 by X. Xxxxxxx, who is a Vice President of FIRST INTERSTATE BANK OF OREGON,
N.A., on behalf of the association.
/s/ Xxxxxx Xxxxxx-Xxxxxxx
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Notary Public
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