Exhibit 10.10
Term Loan Agreement
NBD Bank (the "Bank"), of 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000,
agrees to extend the term loan(s) described below (whether one or more, the
"Loans") to
Ives Broadcasting, Inc. (the "Borrower"),
____________________________________________________________
whose address is 0000 X-00 Xxxx, Xxxxxx, XX 00000 ,
____________________________________________________________,
under the terms of this Agreement.
1.0 Loans. The Bank agrees to extend the following Loans to the Borrower:
A. A Loan in the amount of $50,000.00 , maturing March 16, 2000 ,
__________ _______________
the proceeds of which will be used for the following purpose:
Working capital
_______________________________________________________________,
B. A Loan in the amount of $ , maturing ,
___________ _________________
the proceeds of which will be used (for the following purpose:
_____________________________________________________________, and
C. A Loan in the amount of $ , maturing ,
___________ ________________
the proceeds of which will be used for the following purpose:
_____________________________________________________________ ,
Each Loan will be evidenced by an Installment Business Loan Note executed
concurrently with this agreement (the "Notes")
2.0 Conditions Precedent.
2.1 Delivery of Documents. Before the disbursement of any loan under
this agreement, the Borrower shall deliver to the Bank, in form and substance
satisfactory to the Bank:
A. Loan Documents. The Notes; the security agreements, financing
statements, and mortgages; the guaranties; the subordinative
agreements, and any other loan documents which the Bank may
reasonably require to give effect to the transactions described in
this agreement;
B. Evidence of Data Organization and Good Standing. Evidence of the
due organization and good standing of the Borrower and every other
business entity that is a party to this agreement or any other loan
documents required by this agreement. That evidence shall include:
in the case of a corporation, articles of incorporation, bylaws and
a certificate of good standing: In the case of partnership, a
certificate of partnership and a partnership agreement, and, in the
case of a limited liability company, articles of organization and
an organization agreement and
C. Evidence of Authority to Enter Into Loan Documents. Evidence that
(i) each party to this agreement and any other loan documents
required by this agreement is authorized to enter into the
transactions described in this agreement and the other loan
documents, and (ii) the person signing on behalf of each party is
authorized to do so.
2.2 Other Conditions Precedent. Before the disbursement of each Loan,
the following conditions must be satisfied:
A. Representations. The representations are true on and as of the
date of the Loan.
B. No Event of Default. No event of default has occurred and is
continuing or would result from the extensions of the Loan.
C. Additional Approvals, Opinions, and Documents. The Bank has
received any other approvals, opinions and documents as it may
reasonably request; and
D. Other Conditions.
_______________________________________________
____________________________________________________________________
____________________________________________________________________
3.0 Fees and Expenses, (complete if applicable)
3.1 Fees. Upon execution of this agreement, the Borrower has paid the
Bank the following fees, all of which the Borrower acknowledges have been
earned by the Bank: _________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
3.2 Out-of-Pocket Expenses. In addition to any fee set forth above, the
Borrowers will reimburse the Bank for its out-of-pocket expenses, including
reasonable attorney's fees (including the fees of in-house counsel) allocated
to the Loans.
4.0 Security.
4.1 Payment of the Loans shall be secured by a first security interest
and/or real estate mortgage, as the case may be, covering the following
property and its additions, substitutions, increments, proceeds and products,
whether now owned or later acquired ("Collateral"):
(check and complete applicable clauses)
/ / A. Accounts Receivables. All of the Borrower's accounts, chattel
paper, general intangibles, instruments, and documents (as those terms
are defined in the Uniform Commercial Code), rights to refunds of taxes
paid at any time to any governmental entity, and any letters of credit
and drafts under them given in support of the foregoing, wherever
located. The Borrower has delivered to the Bank executed security
agreements and financing statements in form and substance satisfactory to
the Bank.
/ / B. Inventory. All of the Borrower's inventory, wherever located. The
Borrower has delivered to the Bank executed security agreements and
financing statements in form and substance satisfactory to the Bank.
/X/ C. Equipment. All of the Borrower's equipment wherever located. The
Borrower has delivered to the Bank executed security agreements and
financing statements in form and substance satisfactory to the Bank.
/X/ D. Real Estate. The real property, including improvements, located
at 0000 X. Xxxx Xxxx, Xxxx Xxxxxx, Xxxxxxxx. The real estate mortgage
________________________________________
is supported by an assignment of rents, subordinations of leases, and
collateral assignments of land contracts, as applicable. The Borrower
has delivered to the Bank an executed mortgage and, where applicable, an
assignment of rents, subordinations of leases, and collateral
assignments of land contracts, and an ALTA mortgage title insurance
policy without exceptions with a mortgage survey certified to the Bank
and the title insurance company, or at the Bank's option a title search,
all in form and substance satisfactory to the Bank.
/ / E. _________________________________________________________________
________________________________________________________________________
________________________________________________________________________
4.2 No forbearance or extension of time granted any subsequent owner of
the Collateral will release the Borrower from liability.
4.3 Additional Collateral/Setoff. To further secure payment of the Loans
and all of the Borrower's other liabilities to the Bank, the Borrower grants
to the Bank a continuing security interest in: (i) all securities and other
property of the Borrower in the custody, possession or control of the Bank
(other than property held by the Bank solely in a fiduciary capacity), and
(ii) all balances of deposit accounts of the Borrower with the Bank. The
Bank has the right at any time to apply its own debt or liability to the
Borrower, or to any other party liable for payment of the Loans, in whole or
partial payment of the Loans or other present or future liabilities, without
any requirements of mutual maturity.
4.4 Credit Lien. Any of the Borrower's other property in which the Bank
has a security interest to secure payment of any other debt, whether
absolute, contingent, direct or indirect, including the Borrower's guaranties
of the debts of others, also secures payment of and is part of the Collateral
for the Loans.
/X/ 5.0 Guaranties. (check and complete if applicable)
Payment of the Loans is guaranteed by Xxxxxx X. & Xxxxx X. Xxxxxxx
____________________________
_____________________________________ , by execution of the Bank's form of
guaranty agreement. The liability of the guarantors, if more than one, is
joint and several.
/ / 6.0 Subordination. (check and complete if applicable)
The Loans are supported by the subordination of all debt, including
without limitation, debt currently owing in the amount of $___________________
owing to _______________________________ in manner and by agreement
satisfactory to the Bank.
7.0 Affirmative Covenants. So long as any Loan remains outstanding, the
Borrower, and each of its subsidiaries if any, shall:
7.1 Insurance. Maintain insurance with financially sound and reputable
insurers covering its properties and business against those casualties and
contingencies and in the types and amounts as shall be in accordance with
sound business and industry practices.
7.2 Existence. Maintain its existence and business operations as
presently in effect in accordance with all applicable laws and regulations,
pay its debts and obligations when due under normal terms, and pay on or
before their due date, all taxes, assessments, fees and other governmental
monetary obligations, except as they may be contested in good faith if they
have been properly reflected on its books and, at the Bank's request,
adequate funds or security has been pledged to insure payment.
7.3 Financial Records. Maintain proper books and records of account, in
accordance with generally accepted accounting principles where applicable,
and consistent with financial statements previously submitted to the Bank.
7.4 Notice. Give prompt notice to the Bank of the occurrence of (1) any
Event of Default, and (ii) any other development, financial or otherwise,
which would affect the Borrower's business, properties or affairs in a
materially adverse manner.
7.5 Collateral Audits. (complete if applicable) Permit the Bank or its
agents to perform _________________________ audits of the Collateral. The
(monthly, annual, etc.)
Borrower will compensate the Bank for those audits in accordance with the
Bank's schedule of fees as amended from time to time. Whether or not this
section has been completed, the Bank retains the right to inspect the
Collateral and business records related to it at such times and at such
intervals as the Bank may reasonably require.
7.6 Management. (complete if applicable) Maintain __________ as ______ .
7.7 Financial Reports. Furnish to the Bank whatever information,
books, and records the Bank may reasonably request, including at a minimum:
(Check and complete applicable clauses. If the Borrower has subsidiaries, all
financial statements required will be provided on a consolidated and on a
separate basis.)
/ / A. Within _________ days after and as of the end of each
_______________________ period, a balance sheet and statements of income,
(Monthly/quarterly)
retained earnings, and cash flows from the beginning of that fiscal year
to the end of that period, certified as correct by one of its authorized
agents.
/ / B. Within 120 days after and as of the end of each of its fiscal
____
year, detailed financial statement including a balance sheet and statements
___________________
(audit/financial statements)
of income, retained earnings, and cash flows, compiled by an independent
________
(reviewed/compiled/certified)
certified public accountant of recognized standing.
/ / C. Within 7 days after and as of the end of each calendar year, the
___
signed personal financial statement of guarantors .
__________
(Borrower/Guarantor/other)
/ / D. Within 5 days after filing, a signed copy of the annual tax
return, with exhibits, of borrower and guarantors .
_______________________
(Borrower/Guarantor/other)
/ / E. An Environmental Certificate on the Bank's form on and as of the
date of this agreement, and thereafter on each five-year anniversary of
this agreement.
/ / F.__________________________________________________________________
________________________________________________________________________
________________________________________________________________________
8.0 Negative Covenants
8.1 Definitions. As used in this agreement, the following terms have the
following respective meanings:
A. "Subordinated Debt" means debt subordinated to the Bank in manner and
by agreement satisfactory to the Bank.
B. "Tangible Net Worth" means total assets less intangible assets and
total liabilities. Intangible assets include goodwill, patents,
copyrights, mailing lists, catalogs, trademarks, bond discount and
underwriting expenses, organization expenses, and all other intangibles.
8.2 Unless otherwise noted, the financial requirements in this section
will be computed in accordance with generally accepted accounting principles
applied on a basis consistent with financial statements previously submitted
by the Borrower to the Bank.
8.3 Without the written consent of the Bank, so long as any Loan remains
outstanding, the Borrower shall not: (where appropriate, covenants shall
apply on a consolidated basis--clauses H-O apply only if completed.)
A. Dividends. Acquire or retire any of its shares of capital stock, or
declare or pay dividends or make any other distributions or options to
purchase or acquire any such shares or securities.
B. Sale of Shares. Issue, sell or otherwise dispose of any shares of its
capital stock or other securities, or rights, warrants or options to
purchase or acquire any such shares or securities.
C. Debt. Incur, or permit to remain outstanding, debt for borrowed money
or installment obligations, except debt reflected in the latest
financial statement of the Borrower furnished to the Bank prior to
execution of this agreement and not to be paid with proceeds of the
Loans. For purposes of this covenant, the sale of any accounts
receivable shall be deemed the incurring of debt for borrowed money.
D. Guaranties. Guaranty or otherwise become or remain secondarily liable
on the undertaking of another, except for endorsement of drafts for
deposit and collection in the ordinary course of business.
E. Liens. Create or permit to exist any lien on any of its property,
real or personal, except existing liens known to the Bank; liens to the
Bank; liens incurred in the ordinary course of business securing current
nondelinquent liabilities for taxes, worker's compensation, unemployment
insurance, social security and pension liabilities; and liens for taxes
being contested in good faith.
F. Advances and Investments. Purchase or acquire any securities of, or
make any loans or advances to or investments in any person or business
entity, except obligations of the United States Government, open market
commercial paper rated one of the top two ratings by a rating agency of
recognized standing, or certificates of deposit in insured financial
institutions.
G. Use of Proceeds. Use or permit any loan proceeds to be used, directly
or indirectly, for the purpose of "purchasing or carrying any margin
stock" within the meaning of Federal Reserve Board Regulation U. At the
Bank's request, the Borrower will furnish to the Bank a completed
Federal Reserve Board Form U-1.
/ / H. Working Capital. Permit the difference between its current assets
[less all sums owing from stockholders, members or partners, as the case
may be, and officers, managers and directors] and current liabilities
[plus all sums (other than Subordinated Debt) owing to stockholders or
partners, as the case may be, and to officers and directors] to be less
than $__________. (Strike bracketed words if not applicable)
/ / I. Tangible Net Worth [Plus Subordinated Debt]. Permit its Tangible Net
Worth [plus Subordinated Debt] to be less than $___________________. (Strike
bracketed words if not applicable).
/ / J. Current Ratio. Permit the ratio of its current assets to its current
liabilities to be less than ___________ to 1.00.
/ / K. Leverage Ratio. Permit the ratio of its total liabilities to its
Tangible Net Worth [plus Subordinated Debt] to exceed _______________ to
1.00. (Strike bracketed words if not applicable).
/ / L. Fixed Assets. Expend for, contract for, lease, rent, or otherwise
acquire fixed assets, if the expense to the Borrower and all subsidiaries, if
any, shall exceed $_____________________ in the aggregate in any one fiscal
year.
/ / M. Leases. Contract for or assume in any manner lease obligations if the
aggregate of all payments shall exceed $________________ in any one fiscal
year.
/ / N. Compensation. Pay, or award compensation of any kind, in any one fiscal
year, to ______________, ______________ exceeding $______________.
/ / O. ________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
9.0 Representations by Borrower. Each Borrower represents that (a) the
execution and delivery of this agreement and the Notes, and the performance
of the obligations they impose, do not violate any law, conflict with any
agreement by which the Borrower is bound, or require the consent or approval
of any governmental authority or other third party; (b) this agreement and
the Notes are valid and binding agreements, enforceable in accordance with
their terms; and (c) all balance sheets, income statements, and other
financial statements furnished to the Bank are accurate and fairly reflect the
financial condition of the organizations and persons to which they apply on
their effective dates, including contingent liabilities of every type, which
financial condition has not changed materially and adversely since those
dates. Each Borrower, if other than a natural person, further represents
that: (a) it is duly organized, existing and in good standing under the laws
of the jurisdiction under which it is organized; and (b) the execution and
delivery of this agreement and the Notes, and the performance of the
obligations they impose (i) are within its powers (ii) have been duly
authorized by all necessary action of its governing body, and (iii) do not
contravene the terms of its articles of incorporation or organization, its
by-laws, or any partnership, operating or other agreement governing its
affairs.
10.0 Default/Acceleration.
10.1 Events of Default. If any of the following events occurs, the Loans
shall be due immediately, without notice, at the Bank's option.
A. The Borrower or any guarantor of any of the Loans (the "Guarantor")
fails to pay when due any amount payable under the Loans or under any
agreements or instrument evidencing debt to any creditor.
B. The Borrower or any Guarantor (a) fails to observe or perform any
other term of this agreement or the Notes; (b) makes any materially incorrect
or misleading representation, warranty, or certificate to the Bank; (c) makes
any materially incorrect or misleading representation in any financial
statement or other information delivered to the Bank; or (d) defaults under
the terms of any agreement or instrument relating to any debt for borrowed
money (other than the Loans) such that the creditor declares the debt due
before its maturity.
C. There is a default under the terms of any loan agreement, mortgage,
security agreement or any other document executed in connection with the
Loans, or any guaranty of the Loans becomes unenforceable in whole or in
part, or any Guarantor fails to promptly perform under its guaranty.
D. A "reportable event" (as defined in the Employee Retirement Income
Security Act of 1974 as amended) occurs that would permit the Pension Benefit
Guaranty Corporation to terminate any employee benefit plan of the Borrower
or any affiliate of the Borrower.
E. The Borrower or any Guarantor becomes insolvent or unable to pay its
debts as they become due.
F. The Borrower or any Guarantor (a) makes an assignment for the benefit
of creditors; (b) consents to the appointment of a custodian, receiver or
trustee for it or a substantial part of its assets; or (c) commences any
proceeding under any bankruptcy, reorganization, liquidation or similar laws
of any jurisdiction.
G. A custodian, receiver or trustee is appointed for the Borrower or any
Guarantor or for a substantial part of its assets without its consent and is
not removed within 60 days after the appointment.
H. Proceedings are commenced against the Borrower or any Guarantor under
any bankruptcy, reorganization, liquidation or similar laws of any
jurisdiction, and they remain undismissed for 60 days after commencement; or
the Borrower or Guarantor consents to the commencement of those proceedings.
I. Any judgment is entered against the Borrower or any Guarantor, or any
attachment, levy or garnishment is issued against any property of the
Borrower or any Guarantor.
J. The Borrower or any Guarantor dies.
K. The Borrower or any Guarantor, without the Bank's written consent, (a)
is dissolved, (b) merges or consolidates with any third party, (c) leases,
sells or otherwise conveys a material part of its assets or business outside
the ordinary course of business, (d) leases, purchases or otherwise acquires a
material part of the assets of any other business entity, except in the
ordinary course of business, or (e) agrees to do any of the foregoing
(notwithstanding the foregoing, any subsidiary may
merge or consolidate with any other subsidiary, or with the Borrower, so
long as the Borrower is the survivor.
L. The loan-to-value ratio of any pledged securities at any time exceeds
___%, and that excess continues for five (5) days after notice from the Bank
to the Borrower.
M. There is a substantial change in the existing or prospective financial
condition of the Borrower or any Guarantor which the Bank in good faith
determines to be materially adverse.
N. The Bank in good faith shall deem itself insecure.
10.2 Remedies. If the Loans are not paid at maturity, whether by demand,
acceleration or otherwise, the Bank shall have all the rights and remedies
provided by any law or agreement. Any requirement of reasonable notice is met
if the Bank sends the notice to the Borrower at least seven (7) days prior to
the date of sale, disposition or other event giving rise to the required
notice. The Bank is authorized to cause all or any part of the Collateral to
be transferred to or registered in its name or in the name of any other
person or business entity with or without designating the capacity or that
nominee. The Borrower is liable for any deficiency remaining after
disposition of any Collateral. The Borrower is liable to the Bank for all
reasonable costs and expenses of every kind incurred in the making or
collection of the Loans, including without limitation reasonable attorney's
fees and court costs (whether attributable to the Bank's in-house or outside
counsel). These costs and expenses include without limitation any costs or
expenses incurred by the Bank in any bankruptcy, reorganization, insolvency
or other similar proceeding.
11.0 Miscellaneous.
11.1 Notice from one party to another relating to this agreement is
effective if made in writing (including telecommunications) and delivered to
the recipient's address, index number or fax number set forth under its name
below by any of the following means: (a) hand delivery, (b) registered or
certified mail, postage prepaid, with return receipt requested, (c) first
class or express mail, postage prepaid, (d) Federal Express or like overnight
courier service, or (e) fax, telex or other wire transmission with request
for assurance of receipt in a manner typical with respect to communication of
that type. Notice made in accordance with this section shall be deemed
delivered upon receipt if delivered by hand or wire transmission, on the
third business day after mailing by first class, registered or certified
mail, or on the next business day after mailing or deposit with an overnight
courier service.
11.2 No delay on the part of the Bank in the exercise of any right or
remedy waives that right or remedy. No angle or partial exercise by the Bank
of any right or remedy precludes any other future exercise of it or the
exercise of any other right or remedy. No waiver or indulgence by the Bank of
any default is effective unless in writing and signed by the Bank, nor does a
waiver on one occasion bar or waive that right on any future occasion.
11.3 This agreement, the Notes and any related loan documents embody the
entire agreement and understanding between the Borrower and the Bank and
supersede all prior agreements and understandings relating to their subject
matter. If any one or more of the obligations of the Borrower under this
agreement or the Notes is invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
obligations of the Borrower shall not in any way be affected or impaired,
and the invalidity, illegality or unenforceability in one jurisdiction does
not affect the validity, legality or enforceability of the obligations of the
borrower in any other jurisdiction.
11.4 The Borrower, if more than one, is jointly and severally liable.
11.5 This agreement is delivered in the State of Michigan and governed by
Michigan law. This agreement binds the Borrower and its successors and
benefits the Bank, its successors and assigns.
11.6 Section headings are for convenience of reference only and do not
affect the interpretation of this agreement.
12.0 Waiver of Jury Trial: The Bank and the Borrower, after consulting in
having had the opportunity to consult with counsel, knowingly, voluntarily
and intentionally waive and right either of them may have to a trial by jury
in any litigation based upon or arising out of this agreement or any related
instrument or agreement, or any of the transactions contemplated by this
agreement, or any course of conduct, dealing, surrenders (whether oral or
written, or actions of either of them. Neither the Bank nor the Borrower
shall seek to consolidate, by counterclaim or otherwise, any action in which
a jury trial has been waived with any other action in which a jury trial
cannot be or has not been waived. These provisions shall not be deemed to have
been modified in any respect or relinquished by either the Bank or the
Borrower except by a written instrument extended by both of them.
Executed by the parties of: February 25, 1998
-----------------
(Date)
NBD Bank NBD Bank
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxx, Relationship Xxxxxx X. Xxxxxxx, President
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Manager
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ADDRESS FOR NOTICES: ADDRESS FOR NOTICES:
000 X. Xxxxxxxx Xx. 1491 M-32 West
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Xxxxxx, XX 00000 Xxxxxx, XX 00000
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Fax/Telex No. (000) 000-0000 Fax/Telex No.
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