EXHIBIT 4.1
SECURED PROMISSORY NOTE
$___________ SAN FRANCISCO, CALIFORNIA
DECEMBER 31, 2002
FOR VALUE RECEIVED, the undersigned SUTTER HOLDING COMPANY, INC., a
Delaware corporation ("Maker"), promises to pay to the order of
____________________________ ("Holder"), c/o Xxxxxxx Xxxxx, Xxxx Xxxxx &
Xxxxxxx, One Landmark Xxxxxx, Xxxxx 0000, Xxxxxxxx, XX. 00000, or at such other
place as any holder hereof may designate in writing, the principal sum of
$__________, as may be adjusted below, together with interest thereon from the
date hereof at the rate of 4% per annum, until paid in full; provided, however,
that during any period in which an Event of Default is continuing the Maker
shall pay interest on the unpaid principal balance outstanding from time to time
at a rate per annum equal to equal to 5% in excess of the Prime Rate per annum.
The term "Prime Rate" shall mean a fluctuating interest rate per annum equal to
the rate of interest announced publicly from time to time (whether or not
charged in each instance) by Citibank, N.A., as that bank's base rate or general
reference rate for its most creditworthy borrowers. The balance of outstanding
principal and accrued but unpaid interest will be paid in full on July 31, 2007
(the "Maturity Date"). Certain terms are defined in Annex II attached hereto and
hereby made a part hereof. Capitalized terms used in this Note, but not
otherwise defined herein or on Annex II attached hereto, will have the
respective meanings set forth in that certain Stock Purchase Agreement dated as
of the date hereof among Maker, Easton Mortgage Corporation, a California
corporation ("Easton"), Xxxxxx, Xxxxxxx X. Xxxxx, Xxxxx Xxxxxxxx, LLC, Xxxxx X.
Xxxx, Xxxxx Xxxx, and Xxxxxxxx Xxxxxxx (the "Purchase Agreement").
This Note is one of the Notes issued by the Maker pursuant to Section
2.2(c) of the Purchase Agreement (collectively, the "Notes"). The Notes rank
equally and ratably without priority over one another. No payment, including any
prepayment, may be made hereunder unless payment, including any prepayment, is
made with respect to the other Notes in an amount which bears the same ratio to
the then unpaid balance on such other Notes as the payment made hereon bears to
the then unpaid balance under this Note.
1. The Maker will make monthly payments commencing on the last day of
January 2003, and on the last day of each month thereafter up to and including
the Maturity Date until this Note is paid in full (the "Regularly Scheduled
Payment Dates"). Prior to the time when the determination of any adjustment to
the face amount of this Note is made pursuant to Section 2.3.1 of the Purchase
Agreement (expected to be April 2005), the amount of each such monthly payment
will be equal to one-third (1/3) of the Quarterly Payment Amount. "Quarterly
Payment Amount" means, for any fiscal quarter, the lesser of the Cash Flow
Payment or the Payment Ceiling. "Cash Flow Payment" means 77.091% of Easton's
EBITDA during the fiscal quarter preceding the fiscal quarter for which the Cash
Flow Payment is measured; provided, however, that for the first three Regularly
Scheduled Payment Dates the Cash Flow Payment means 77.091% of three times
Easton's EBITDA during the month preceding the Regularly Scheduled Payment Date.
"Payment Ceiling" means the Note Payment, provided that (1) if the Cash Flow
Payment was used to determine a Quarterly Payment Amount, the Payment Ceiling
for subsequent Quarterly Payment Amount determinations will be increased by the
amount, if any, that the Note Payment exceeded the Cash Flow Payment for such
Quarterly Payment Amount, but only if there is a positive balance of the Unused
EBITDA and (2) the Payment Ceiling will be decreased by the amount of any Used
EBITDA. "Note Payment" means $_________ per fiscal quarter. "Unused EBITDA"
means 96.364% of (a) the sum of the EBITDA for all complete fiscal quarters
since January 1, 2003; minus (b) the number of complete fiscal quarters since
January 1, 2003 multiplied by $208,992; minus (c) any Used EBITDA. "Used EBITDA"
means sum of the amounts, if any, by which any Quarterly Payment Amount exceeds
the Note Payment. On and after the first Regularly Scheduled Payment date after
any adjustment to the face value of this Note pursuant to Section 2.3.1 of the
Purchase Agreement, the remaining
SECURED PROMISSORY NOTE--PAGE 1 0F 14
outstanding principal of this Note (after giving effect to such adjustment) and
accrued interest thereon will be amortized and paid in equal monthly
installments over a 30 month period commencing on the date of such adjustment.
EXAMPLE:
FOR FIRST QUARTER 2003: Assume that during December, 2002, the
Company's EBITDA is $75,000. This will result in a Cash Flow Payment as
calculated in January, 2003, of $173,454.75 ($75,000 multiplied by 3 multiplied
by 77.091%). Meanwhile, the Payment Ceiling will not increase because there have
not been any payments where the Cash Flow Payment was less than the Note Payment
and because Unused EBITDA only includes complete fiscal quarters after January
1, 2003. Because the Payment Ceiling (which will be equal to the Note Payment)
is less than the Cash Flow Payment, the payment for January, 2003, will be
one-third of the Payment Ceiling. (If instead the Cash Flow Payment were less
than the Note Payment, the payment for January, 2003, would be equal to
one-third of the Cash Flow Payment, but there would be no adjustment to Unused
EBITDA or the Payment Ceiling). The calculation of the payments due in February
and March, 2003, would be equal to the lesser of the Cash Flow Payment (based
upon EBITDA from January and February, 2003, respectively) or the Note Payment,
with no effect on Unused or Used EBITDA or the Payment Ceiling.
FOR SECOND QUARTER 2003: Assume that during the first quarter of 2003,
the Company's EBITDA is $250,000. This will result in a Cash Flow Payment of
$192,727.50 for the second quarter of 2003 ($250,000 multiplied by 77.091%). The
Payment Ceiling will not have increased because the Note Payment is less than
the Cash Flow Payment, and the Quarterly Payment Amount will be equal to the
Payment Ceiling (which is equal to the Note Payment). Thus, the monthly payments
during third quarter of 2003 are $53,704.69 (the Payment Ceiling divided by 3).
Unused EBITDA will be $39,516.95 (96.364% of the difference between $250,000 and
$208,992).
FOR THIRD QUARTER 2003: Assume that second quarter EBITDA is $200,000,
resulting in a Cash Flow Payment of $154,182.00 ($200,000 multiplied by
77.091%). The Cash Flow Payment is less than the Payment Ceiling (still equal to
the Note Payment), so monthly payments during the third quarter of 2003 are
$51,394.00 (the Cash Flow Payment divided by 3). Meanwhile, "Unused EBITDA" is
$30,207.74 (96.364% of (a) $250,000 plus $200,000, minus (b) $208,992 multiplied
by 2, minus (c) $0.00. There will be no Used EBITDA.
FOR FOURTH QUARTER 2003: Assume that third quarter 2003 EBITDA is
$230,000, resulting in a Cash Flow Payment of $177,309.30 for the fourth quarter
2003 ($230,000 multiplied by 77.091%). Meanwhile, "Unused EBITDA" is $51,096.04
(96.364% of (a) $250,000 plus $200,000 plus $230,000, minus (b) $208,992
multiplied by 3, minus (c) $0.00). The Payment Ceiling will be equal to
$168.046.14 ($161,114.07 plus $6,932.07, the latter of which is the amount that
the Note Payment exceeded the Cash Flow Payment for the third quarter 2003,
which is less than the Unused EBITDA). The Payment Ceiling is less than the Cash
Flow Payment, so monthly payments during the third quarter of 2003 are
$56,015.38 ($168,046.14 divided by 3). This will cause "Used EBITDA" at the end
of the fourth quarter to be $6,932.07 ($168,046.14 minus $161,114.07), which
will cause the Payment Ceiling to drop by $6,932.07 back down to the Note
Payment amount of $161,114.07, and the Unused EBITDA will be reduced
correspondingly for the next quarter.
2. Xxxxxx acknowledges and agrees that the Maker will have no
obligation to pay this Note if and to the extent that (i) the Maker has the
right, under the Purchase Agreement, to offset amounts determined by Section 9.4
of the Purchase Agreement against amounts payable under this Note and/or (ii)
the principal amount of this Note is reduced in accordance with Section 2.3.1 of
the Purchase Agreement. The provisions of the Purchase Agreement will control
the provisions of this Note with respect to such
SECURED PROMISSORY NOTE--PAGE 2 0F 14
offset rights or reductions in principal. The amount of any offset arising under
clause (i) above shall be applied against the monthly payments becoming due
under Section 1 of this Note commencing on the next Regularly Scheduled Payment
Date and continuing thereafter until the offset right is extinguished.
3. The Maker hereby agrees, until full payment and performance by the
Maker of this Note, the other Notes and the other Financing Documents, to fully
comply with all of the covenants and agreements set forth in Annex I attached
hereto and hereby made a part hereof.
4. This Note shall be subject to prepayment as follows:
(a) The Maker will have the right to prepay this Note, in
whole or in part, at any time with no prepayment penalties.
(b) As soon as possible, and in any event within twenty (20)
Business Days prior to the occurrence of a Mandatory Prepayment Event, the Maker
shall furnish to the Holder written notice setting forth in reasonable detail
the facts and circumstances underlying such Mandatory Prepayment Event. The
occurrence of any such Mandatory Prepayment Event shall constitute an
irrevocable offer by the Maker to prepay all, but not less than all, of this
Note (and the other Notes) at an amount equal to the then unpaid principal
amount thereof (and of them in the aggregate) together with all accrued and
unpaid interest through the date of prepayment (plus any unpaid costs and
expenses owed to Holder (and the holders of the other Notes) under the Financing
Documents), on the closing date of the Mandatory Prepayment Event. Following
receipt of any offer to prepay this Note under this paragraph, the Holder shall
advise the Maker, by written notice within ten (10) days after receipt of such
offer, as to whether the Holder desires to have this Note so prepaid. If the
Holder fails to respond to such offer by the Maker within the ten (10) day
acceptance period, such offer shall be deemed to be accepted. The Maker will not
enter into any agreement relating to a Mandatory Prepayment Event unless such
agreement is conditioned upon compliance with this paragraph.
(c) Any prepayments hereunder shall be applied first to
interest accrued but unpaid as of the date of payment and then to outstanding
principal. Any prepayments made by Maker shall be allocted among all of the
Notes pro-rata based on the outstanding principal balances of each of them.
5. This Note is secured by a pledge of 3,000 shares held by Maker in
Easton pursuant to that certain Securities Pledge Agreement dated as of the date
of this Note (the "Pledge Agreement"). The liability of the Maker for the
repayment of the indebtedness evidenced by this Note shall be nonrecourse and
will be limited to the security given by the Maker for this Note under the
Pledge Agreement.
6. An "Event of Default" shall exist under this Note if any of the
following occurs and regardless of the reason for such occurrence:
(a) The Maker shall fail to make any payment of any principal
or interest, when any of the same shall become due under this Note (whether due
at maturity or by reason of acceleration or demand or as part of any prepayment
or otherwise) and such failure shall continue for a period of ten (10) calendar
days.
(b) The Maker shall fail to make any payment of any other
amount payable under this Note or any other Financing Document and such failure
shall continue for a period of ten (10) calendar days after written notice of
such failure shall have been given to the Maker by the Holder.
(c) The occurrence of any "Event of Default" as defined in any
other Financing Document.
SECURED PROMISSORY NOTE--PAGE 3 0F 14
(d) The Maker shall default in the due performance or
observance of:
(i) any material agreement or covenant contained in
Articles 1 or 2 of Annex I hereto; or
(ii) any other material agreement or covenant
contained in this Note (other than a covenant or agreement a default in
the performance or observance of which is specifically dealt with in
any part of this Section 6 other than this clause (ii));
and such default shall have continued unremedied for a period of fifteen (15)
calendar days after the earlier to occur of (A) the Maker becoming aware of such
default or (B) Holder notifying the Maker of such default; provided, that, there
shall be no such continuation period for a default in the performance or
observance of its obligations under Sections 1.1 or 1.4 of Article 1 of Annex I
hereto.
(e) Any representation or warranty made or furnished to the
Holder by or on behalf of the Maker under any Financing Document or any document
relating thereto or delivered in connection therewith or pursuant thereto proves
to have been false or misleading in any material respect when made or furnished.
(f)
(i) The Maker shall fail to make any payment when
due, after any applicable grace and/or notice period (if any), in
respect of any Indebtedness under the Senior Loan Documents or any
event or condition shall occur which (i) results in the acceleration or
other early required payment or maturity of such Indebtedness, or (ii)
enables or entitles the holder of any such Indebtedness to accelerate
the maturity thereof (or otherwise require the early payment thereof).
(ii) The Maker or Easton shall fail to make any
payment when due, after any applicable grace period (if any), in
respect of any Indebtedness (other than Indebtedness under the
Financing Documents) or any event or condition shall occur which (i)
results in the acceleration or other early required payment of the
maturity of such Indebtedness, or (ii) enables or entitles the holder
of any such Indebtedness to accelerate the maturity thereof (or
otherwise require the early payment thereof).
(g) Bankruptcy; Liquidation
(i) The Maker shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official
of it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due (or shall
admit in writing such inability), or shall take any corporate or
limited liability the Maker action to authorize any of the foregoing;
or
(ii) An involuntary case or other proceeding shall be
commenced against the Maker or Easton seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official to it or any
SECURED PROMISSORY NOTE--PAGE 4 0F 14
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Maker under
the federal bankruptcy laws as now or hereafter in effect.
(h) Any Lien created by any of the Financing Documents shall
at any time fail (except by reason of Holder's failure to take any actions
required to preserve or perfect such Lien) to constitute a valid and perfected
Lien on any material collateral purported to be secured thereby, subject to no
other Lien except as may be permitted by the Financing Documents.
(i) Easton shall be prohibited or otherwise materially
restrained from conducting any material business theretofore conducted by it by
virtue of any determination, ruling, decision, decree or order of any court or
regulatory authority of competent jurisdiction and such determination, ruling,
decision, decree or order remains unstayed and in effect for any period of 10
days.
(j) Any of the Financing Documents to which Maker is a party
shall for any reason fail to constitute (or the Maker shall assert that any does
not constitute) the valid and binding agreement of the Maker in any material
respect.
(k) A writ of execution, attachment, garnishment, replevin or
any similar process shall be issued or levied with respect to any property of
the Maker the value of which individually or in the aggregate equals or exceeds
$250,000 or any order, judgment or decree shall be entered against the Maker by
a court of competent jurisdiction which, together with other outstanding orders,
judgments, and decrees against the Maker equals or exceeds $250,000 and any such
execution, attachment, garnishment, replevin, similar process, or judgment(s)
shall continue in effect for any period of thirty (30) calendar days or more
without being released or a stay of execution with respect thereto being
granted.
(l) Any material breach or material default by the Maker of
the terms of the Purchase Agreement, including without limitation the covenants
contained therein, continued unremedied for a period of fifteen (15) calendar
days after the earlier to occur of (A) the Maker becoming aware of such default
or (B) Holder notifying the Maker of such default.
Upon the occurrence of any such Event of Default and at any time
thereafter during the continuance of any such Event of Default, the Holder, by
written notice to the Maker, may declare the entire unpaid principal balance of
this Note, and all accrued and unpaid interest under this Note, to be due and
payable immediately, and upon any such declaration the entire unpaid principal
balance of this Note and all accrued and unpaid interest under this Note shall
become and be immediately due and payable, without the need for presentment,
demand for payment, protest, notice of dishonor or protest or other notice of
any kind (except any notice, if any, expressly required under this Note) all of
which are expressly waived by the Maker; provided, however, that upon the
occurrence of any of the events specified in subparagraph (g) above, the entire
unpaid principal balance of this Note, and all unpaid and accrued interest under
the Note, shall be immediately due and payable without any notice whatsoever and
without presentment, demand for payment, protest, notice of dishonor or protest
or other notice of any kind, all of which are hereby expressly waived by the
Maker. Holder shall have, upon the occurrence and during the continuance of any
Event of Default, all other rights, remedies, and powers provided to the Holder
under the Financing Documents, any other applicable agreement, instrument or
other document or applicable law.
7. Maker represents and covenants that the proceeds of this Note will
be used for business or commercial purposes, and not for personal, family, or
household purposes.
SECURED PROMISSORY NOTE--PAGE 5 0F 14
8. This Note is non-negotiable, and may not be transferred by
endorsement and delivery or by delivery alone, except that Holder may assign or
transfer the Note to any Affiliate if such Affiliate agrees in writing to be
bound by the terms of this Note, the Purchase Agreement and the Financing
Documents, including, without limitation, Section 2 of this Note.
9. Maker waives, to the fullest extent permitted by applicable law,
presentment, diligence, protest, demand, notice of demand, notice of acceptance
or reliance, notice of non-payment, notice of dishonor, notice of protest and
all other notices (except notices expressly provided for in the Financing
Documents) to parties in connection with the delivery, acceptance, performance,
default or enforcement of this Note or any collateral or other security.
10. THE MAKER, AND HOLDER BY ITS ACCEPTANCE OF THIS NOTE. EACH HEREBY
KNOWINGLY AND VOLUNTARILY WAIVES TRIAL BY JURY AND THE RIGHT THERETO IN ANY
ACTION OR PROCEEDING OF ANY KIND, ARISING UNDER OR OUT OF, OR OTHERWISE RELATED
TO OR OTHERWISE CONNECTED WITH THIS NOTE OR ANY OTHER FINANCING DOCUMENT.
11. This Note will be governed by the laws of the State of California,
without regard to its conflicts of laws rules, it being the intent that the
substantive laws of the State of California will always apply.
12. This Note shall bind the Maker and Maker's successors and assigns
and shall inure to the benefit of the Holder, its successors and assigns. The
Maker shall not, without the prior written consent of the Holder, assign any of
its rights or obligations under this Note or any of the other Financing
Documents.
13. Any provision of this Note or other Financing Document which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or thereof in such jurisdiction,
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
14. The Holder shall not by any act (except by a written instrument
executed and delivered in accordance with the immediately following paragraph),
delay, indulgence, omission or otherwise be deemed to have waived any right,
remedy or other power hereunder or under any other Financing Document or to have
acquiesced in any Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Holder, any right, remedy or other power shall
preclude any other or further exercise thereof or the exercise of any other
right, remedy or other power. No single or partial exercise of any right,
remedy, or power hereunder or under any other Financing Document shall preclude
any other or further exercise thereof or the exercise of any other right, remedy
or power. A waiver by the Holder of any right, remedy or power hereunder or
under any other Financing Document on any one occasion shall not be construed
as, or constitute a bar to, any right, remedy or other power which the Holder
would otherwise have on any future occasion. The rights, remedies and powers
provided to the Holder herein or in any other Financing Document are cumulative,
may be exercised singly or concurrently and are not exclusive of and shall be in
addition to all other rights, remedies, or powers provided by applicable law or
any other agreement, instrument or other document. Holder may exercise any or
all such rights, remedies and powers at any time(s) in any order which Xxxxxx
chooses in its discretion.
15. The terms and provisions of this Note may only be waived, amended,
supplemented or otherwise modified by a writing executed and delivered by the
Maker and the Holder.
SECURED PROMISSORY NOTE--PAGE 6 0F 14
16. This Note, the other Financing Documents and the Purchase Agreement
represent the agreement of the Maker and the Holder with respect to the subject
matter hereof and thereof and supersede all negotiations and prior writings with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Holder relative to subject
matter hereof or thereof that are not expressly set forth or referred to herein,
in the other Financing Documents or in the Purchase Agreement.
17. Whenever the context herein so requires, the neuter gender includes
the masculine or feminine, and the singular number includes the plural, and
vice-versa. Maker acknowledges that Maker and Maker's counsel have had an
opportunity to review and negotiate the terms and provisions of this Note and
the other Financing Documents, and no rule of strict construction shall be used
against the Holder with respect to this Note or any of the other Financing
Documents.
18. All notices under this Note (or other Financing Documents) to the
Maker or the Holder, as the case may be, shall be in writing (including prepaid
overnight courier, facsimile transmission or similar writing) and shall be given
to other party at its address or telecopy number set forth on the signature
pages hereof or at such other address or telecopy number as the Maker or the
Holder, as the case may be, may hereafter specify for the purpose by notice to
the other party(ies). Each such notice shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified in
on the signature pages hereof and automatic or telephonic confirmation of
receipt thereof is obtained, or (ii) if given by mail, prepaid overnight courier
or any other means, when received at the address specified on the signature
pages hereof or when delivery at such address is refused.
19. If this Note becomes mutilated and is surrendered by the Holder
with respect thereto to the Maker, of if Xxxxxx claims that this Note has been
lost, destroyed or wrongfully taken, the Maker shall execute and deliver to
Holder a replacement Note, in like tenor, upon the affidavit of Holder attesting
to such loss, destruction or wrongful taking with respect to this Note and such
lost, destroyed, mutilated, surrendered or wrongfully taken Note shall be deemed
to be replaced for all purposes hereof. Such affidavit shall be accepted as
satisfactory evidence of the loss, wrongful taking or destruction thereof and no
indemnity shall be required as a condition of the execution and delivery of a
replacement Note other than a customary indemnify of the Holder.
20. Any controversy, dispute, or claim arising out of or relating to
this Note or the breach hereof that cannot be settled by mutual agreement
(except for actions by any party seeking equitable, injunctive or other relief)
will be finally settled by arbitration as follows: Any party who is aggrieved
will deliver a notice to the other parties hereto setting forth the specific
points in dispute. Any points remaining in dispute 20 days after the giving of
such notice will be submitted to arbitration in San Francisco, California, to
JAMS/Endispute, before a single arbitrator appointed in accordance with
JAMS/Endispute's Arbitration Rules, modified as expressly provided herein. The
Maker and Holder consent to conducting one arbitration for all similar
promissory notes issued by Maker pursuant to the Purchase Agreement to the
extent that there is any dispute with respect to such other notes at the time of
the arbitration. The arbitrator may enter a default decision against any party
who fails to participate in the arbitration proceedings. The decision of the
arbitrator on the points in dispute will be final, unappealable, and binding,
and judgment on the award may be entered in any court having jurisdiction. The
parties irrevocably consent to the jurisdiction and venue of the state and
federal courts located in San Francisco County, California, in connection with
any action relating to this Agreement. Notwithstanding any other provision of
this Note, the arbitrator will be authorized to apportion its fees and expenses
and the reasonable attorney fees and expenses of the parties as the arbitrator
deems appropriate. In the absence of any such apportionment, the fees and
expenses of the arbitrator will be borne 50% by the Maker, on the one hand, and
50% by the Holder, on the other hand, and each such party will bear the fees and
expenses of its own attorneys. The parties agree that this clause has been
included to rapidly and inexpensively
SECURED PROMISSORY NOTE--PAGE 7 0F 14
resolve any disputes between them with respect to this Note, and that this
clause will be grounds for dismissal of any court action commenced by either
party with respect to this Note, other than post-arbitration actions seeking to
enforce an arbitration award and claims or controversy outside of this Note. The
parties will keep confidential, and will not disclose to any person, except as
may be required by law, the existence of any controversy hereunder, the referral
of any such controversy to arbitration or the status or resolution thereof.
21. This Note may be executed in counterparts, each of which shall be
considered an original but all of which together shall be deemed a single
instrument.
MAKER:
Sutter Holding Company, Inc, a Delaware
corporation
--------------------------------------
Xxxxxxx X. Xxxxx, III, Chief Executive Officer
Address:
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
(000) 000-0000
(000) 000-0000
(Facsimile)
SECURED PROMISSORY NOTE--PAGE 8 0F 14
ANNEX I
ARTICLE 1. AFFIRMATIVE COVENANTS
The Maker covenants and agrees as follows:
1.1 Corporate Existence; Operations of the Maker. The Maker will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and all of its other franchises, licenses and
rights.
1.2 Records and Accounts. The Maker will (a) keep true and accurate
records and books of account in which full, true and correct entries will be
made in accordance with generally accepted accounting principles, and (b)
maintain adequate accounts and reserves for all Taxes (including income taxes),
depreciation, depletion, obsolescence and amortization of its properties,
contingencies, and other reserves.
1.3 Insurance. The Maker at all times will maintain insurance, in such
amounts (including, without limitation, so-called "all-risk" coverage at
replacement value and "broad form" liability coverage), against such hazards and
liabilities and for such purposes as is reasonably prudent and in any event no
less than is customary in the industry for companies engaged in the same or
similar businesses and owning or operating similar properties.
1.4 Taxes. The Maker will pay or cause to be paid all Taxes,
assessments or governmental charges on or against it or any of its properties
prior to such becoming delinquent; except for any Tax, assessment or charge
which is being contested in good faith by proper legal proceedings and with
respect to which adequate reserves have been established and are being
maintained.
1.5 Notices.
1.5.1 Events of Default. The Maker will promptly notify the
Holder in writing of the occurrence of any Event of Default. If any Person shall
give any notice or take any other action in respect of a claimed default
(whether or not constituting an Event of Default) under this Note or any other
Indebtedness involving in excess of $10,000 to which or with respect to which
the Maker is a party or obligor, whether as principal, guarantor, surety or
otherwise, the Maker shall forthwith give written notice thereof to the Holder,
describing the notice or action and the nature of the claimed default.
1.5.2 Notice of Litigation and Judgments. The Maker will give
notice to the Holder in writing within fifteen (15) days of becoming aware of
any litigation or proceedings threatened in writing or any pending litigation
and proceedings affecting the Maker or to which the Maker is or becomes a party
involving an uninsured claim against the Maker that could reasonably be expected
to have a Material Adverse Effect and stating the nature and status of such
litigation or proceedings. The Maker will give notice to the Holder, in writing,
in reasonable detail, within ten (10) days of any judgment not covered by
insurance, final or otherwise, against the Maker in an amount in excess of
$10,000.
1.6 Inspection of Properties and Books, etc. The Maker shall permit
Holder and its designated representatives, upon reasonable notice (provided,
that no such notice shall be required if an Event of Default has occurred and is
continuing and the Holder in its good faith discretion believes that having to
give such notice could impair the Holder's interests) to visit and inspect any
of the properties of the Maker, to examine the books of account of the Maker
(and to make copies thereof and extracts therefrom) and to discuss the affairs,
finances and accounts of the Maker with, and to be advised as to the same by,
its officers and managers, all at such reasonable times and intervals (during
normal business
SECURED PROMISSORY NOTE--PAGE 9 0F 14
hours if no Event of Default has occurred and is continuing) as
Holder may reasonably request; provided that Holder and its designated
representatives shall agree in writing to keep any material, nonpublic
information obtained from Maker confidential until such information becomes
public and not to trade in the securities of Maker on the basis of any such
information.
1.7 Compliance with Laws, Contracts, Licenses, and Permits. The Maker
will comply in all material respects with (a) all laws and regulations
applicable to the existence and operations of its business, wherever its
business is conducted, (b) the provisions of its organizational documents, (c)
all agreements and instruments by which it or any of its properties may be bound
and (d) all applicable material decrees, orders, and judgments, except where the
failure to do so has not had and could not reasonably be expected to have a
Material Adverse Effect.
1.7 Board Member. In any election of directors of the Maker prior to
the payment in full of this Note, the board of directors of the Maker will
nominate one (1) director selected by RCH, LLC for election to the board of
directors of Maker.
1.8 Further Assurances. The Maker will cooperate with the Holder and
execute such further instruments and documents as the Holder shall reasonably
request to carry out to its satisfaction the transactions contemplated by this
Note and the other Financing Documents.
1.9 Compliance with Purchase Agreement. The Maker shall comply with the
covenants applicable to it contained in the Purchase Agreement.
ARTICLE 2. NEGATIVE COVENANTS
The Maker further covenants and agrees that without the prior written
consent of the Holder:
2.1 Redemptions. The Maker shall not purchase, redeem, retire or
otherwise acquire for value any of its capital stock or apply any of the assets
of the Maker to the purchase, redemption, retirement or other acquisition,
directly or indirectly, of any of its capital stock, whether now or hereafter
outstanding.
2.2 Employment Agreements; Payments to Employees. The Maker shall cause
Easton to not, (i) enter into any employment, consulting or agency agreement
which will materially impact the profit and loss statement of Easton, or
increase the compensation and benefits payable or to become payable to the
employees of Xxxxxx, except with the express consent of the President and/or CEO
of Easton, or (ii) grant any severance or termination pay to any employee of
Easton, or establish, adopt, amend, discontinue, terminate or freeze any bonus,
profit sharing, ERISA Employee Plan applicable to Easton or any employee of
Easton.
2.3 Accounting Practices. The Maker shall not take any action to
change, alter or amend any accounting policies and procedures pertaining to
Easton, including procedures with respect to accounts payable and collection of
accounts receivable, except as required by GAAP.
2.4 Exchange Act. The Maker shall comply with its periodic reporting
obligations under the Securities Exchange Act of 1934, as amended, and the rules
promulgated thereunder (the "Exchange Act") and shall use its best efforts to
maintain its status as an issuer obligated to file periodic reports under the
Exchange Act.
2.5 Special Covenants Relating to Easton.
SECURED PROMISSORY NOTE--PAGE 10 0F 14
2.5.1 The Maker shall not cause a change in the senior
management of Easton during either Measurement Period (as defined in the
Purchase Agreement).
2.5.2 The Maker shall cause Easton to not:
(a) make any amendment, waiver or other modification
to any terms or provisions of its certificate of incorporation, by-laws
or other organizational documents;
(b) acquire (including without limitation, by merger,
consolidation, or acquisition of stock or assets) or form any
corporation, partnership, other business organization or division
thereof, which will be merged with or own Easton or which will utilize
the assets, personnel, credit facility or other operations capability
of Easton;
(c) take any action to change, alter or amend any
accounting policies and procedures, including procedures with respect
to accounts payable and collection of accounts receivable, except as
required by GAAP; or
(d) make any distributions to Maker in excess of (i)
the amount due under the Notes plus (ii) an amount equal to the lesser
of 20% of EBITDA or $160,000 per annum.
.
SECURED PROMISSORY NOTE--PAGE 11 0F 14
ANNEX II
DEFINITIONS
A. Certain Definitions. As used herein, the following terms shall have
the following meanings (unless otherwise stated, such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Business Day" shall mean any day other than a Saturday,
Sunday, public holiday, or the equivalent for banks under the laws of the State
of California.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Financing Documents" shall mean this Note, the other Notes,
the Pledge Agreement, the Security Agreement, the Easton Guaranty or any other
guaranty hereof, any pledge agreement of the Maker relating to this Note or any
such guaranty, any assignment, other security agreement or mortgage at any time
securing this Note or any such guaranty, and all other agreements, instruments,
certificates, and other documents executed and/or delivered at any time by the
Maker and/or any other Person pursuant hereto or thereto or in connection
herewith or therewith, as any of same may be amended, supplemented or otherwise
modified from time to time.
"GAAP" or "generally accepted accounting principles" shall
mean U.S. generally accepted accounting principles.
"Xxxxxx" means Xxx Xxxxx, an individual.
"Governmental Authority" shall mean the government of any
nation, state, province, city, locality or other political subdivision of any
thereof, any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any corporation or
other entity owned or controlled, through stock or capital ownership or
otherwise, by any of the foregoing.
"Guaranty" means a guaranty, an endorsement, a contingent
agreement to purchase or to furnish funds for the payment or maintenance of, or
otherwise to be or become contingently liable under or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or a guarantee of the payment of dividends or other distributions upon
the stock or equity interests of any Person, or an agreement to purchase, sell
or lease (as lessee or lessor) property, products, materials, supplies or
services primarily for the purpose of enabling a debtor to make payment of such
debtor's obligations or an agreement to assure a creditor against loss, and
including, without limitation, causing a bank or other financial institution to
issue a letter of credit or other similar instrument for the benefit of another
Person, but excluding endorsements for collection or deposit in the ordinary
course of business. The terms "Guarantee" and "Guaranteed" used as a verb shall
have a correlative meaning. The amount of any Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligations in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof (assuming such
Person is required to perform thereunder).
SECURED PROMISSORY NOTE--PAGE 12 0F 14
"Indebtedness" means for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, advance,
the issuance and sale of debt securities or the sale of Property to another
Person subject to an understanding or agreement, contingent or otherwise, to
repurchase such Property from such Person); (b) obligations of such Person to
pay the deferred purchase or acquisition price of Property or services, other
than trade accounts payable (other than for borrowed money) arising, and accrued
expenses incurred and paid, in the ordinary course of business; (c) Capital
Lease Obligations of such Person and synthetic leases of such Person; (d)
obligations of such Person in respect of letters of credit or similar
instruments issued or accepted by banks and other financial institutions for the
account of such Person; (e) Indebtedness of others secured by a Lien on the
Property of such Person, whether or not the respective indebtedness so secured
has been assumed by such Person; (f) Indebtedness of others Guaranteed by such
Person; and (g) all hedging obligations. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person's ownership interest in or other relationship with
such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under
any conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of the
foregoing), other than an operating lease, relating to such asset and (c) in the
case of securities, any purchase option, call or similar right of a third party
with respect to such securities.
"Mandatory Prepayment Event" shall mean:
(a) the consummation of (i) any acquisition of Easton by means
of merger or other form of corporate reorganization in which the outstanding
shares of Easton are exchanged for securities or other consideration issued, or
caused to be issued, by the acquiring corporation or its subsidiary (other than
a mere reincorporation transaction), under circumstances in which the holders of
a majority in voting power of the outstanding capital stock of Easton
immediately prior to the transaction own less than a majority in voting power of
the outstanding capital stock of Easton or the surviving or resulting
corporation or acquired, as the case may be, immediately following such
transaction (a "Change in Control"), (ii) a sale of all or substantially all of
the assets of Easton, (iii) any other transaction which results in such a Change
in Control of Easton, or (iv) any series of transactions resulting in the
foregoing, or
(b) approval by Maker of a complete liquidation or dissolution
of Easton, or
(c) a change in the composition of the Board of Directors of
Maker so that Xxxxx Xxxx (or his designee), Xxxxxx Xxxxx and Xxxxxxx X. Xxxxx,
III fail to constitute a majority of the members of the Board; provided, that,
if Xxxxx Xxxx approves such change, such change shall not constitute a Mandatory
Prepayment Event.
"Material Adverse Effect" shall mean a material adverse effect
on (i) the business, assets, properties condition (financial or otherwise) or
business prospects of Maker or Easton, as applicable, (ii) the ability of Maker
or Easton, as applicable, to pay or perform its obligations under this Note and
the other Financing Documents, (iii) the rights of or benefits available to the
Holder under this Note or any of the other Financing Documents.
SECURED PROMISSORY NOTE--PAGE 13 0F 14
"Person" shall mean any individual, corporation, partnership,
limited liability company, trust, unincorporated association, business, or other
legal entity, and any government or any governmental agency or political
subdivision thereof.
"Property" means any interest of any kind in property or
assets, whether real, personal or mixed, and whether tangible or intangible.
"Senior Loan Documents" means all documents between Xxxxxx and
the Maker and SOF-2 and the Maker which are entered into from time to time in
respect of the Indebtedness of the Maker to Xxxxxx or SOF-2, as the case may be,
including, without limitation, any amendment, replacement or refinancing thereof
approved by Holder to the extent required in the Intercreditor Agreement or to
the extent of any increases the amount of debt, extends the term or otherwise
could adversely impact on Holder's rights or recovery under this Note.
"SOF-2" means Sutter Opportunity Fund 2, LLC, a California
limited liability company.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority, including without limitation, stamp or documentary taxes or other
excise or property taxes, charges or levies.
B. Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP, and all financial data
submitted pursuant to this Note shall be prepared and calculated in accordance
with GAAP.
SECURED PROMISSORY NOTE--PAGE 13 0F 14
