Exhibit 10.12
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON
SEPTEMBER 30, 1998 AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THE TRANSFER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE SENIOR SUBORDINATED NOTE,
PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT, DATED AS OF SEPTEMBER 30, 1998,
AMONG THE ISSUER (THE "COMPANY") AND CERTAIN INVESTORS, AND THE COMPANY RESERVES
THE RIGHT TO REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH CONDITIONS HAVE
BEEN FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF SUCH AGREEMENT SHALL BE
FURNISHED BY THE COMPANY TO THE REGISTERED HOLDER HEREOF UPON WRITTEN REQUEST
AND WITHOUT CHARGE.
XXXXXXXXX SIGN COMPANY
12.00% SENIOR SUBORDINATED NOTE
$_____________ Dated: September 30, 1998
FOR VALUE RECEIVED, Xxxxxxxxx Sign Company, a Texas corporation (the
"COMPANY"), hereby promises to pay to ______________ (the "PURCHASER"), or its
registered assigns, the principal amount of $____________ together with interest
thereon calculated from the date hereof in accordance with the provisions of
this Note.
This Note was issued pursuant to a Senior Subordinated Note, Preferred
Stock and Warrant Purchase Agreement, dated as of September 30, 1998 (the
"AGREEMENT"), between the Company, Continental Illinois Venture Corporation, MIG
Partners VIII and the other persons identified on the signature pages thereto.
This 12.00% Senior Subordinated Note (this "NOTE") is one of the "NOTES"
referred to in the Agreement. The holder of this Note is entitled to the
benefits of, and is subject to other provisions contained in, the Agreement and
may enforce the agreements of the Company contained therein and exercise the
remedies provided for thereby or otherwise available in respect thereof. Certain
capitalized terms are defined in SECTION 6 hereof. Other capitalized terms used
in this Note but not otherwise defined herein have the meanings set forth for
such terms in the Agreement.
1. PAYMENT OF INTEREST.
(a) Interest shall accrue at the rate of 12.00% per annum on the
unpaid principal amount of this Note outstanding from time to time;
PROVIDED that so long as any Event of Default has occurred and is
continuing, interest shall accrue to the extent permitted by law at the
rate of 15.00% per annum on the unpaid principal amount of this Note
outstanding from time to time for the period beginning on the date on which
such Event of Default occurs and ending on the date on
which such Event of Default actually ceases to exist. Interest shall be
computed on the basis of the actual number of days elapsed and a 360-day
year.
(b) So long as this Note remains outstanding, on each Quarterly
Payment Date after the Closing Date the Company shall pay in cash to the
holder of this Note all interest which has accrued thereon through such
date. Except to the extent prohibited under applicable law, any accrued
interest which is not paid on the Quarterly Payment Date on which it is
payable shall bear interest at the same rate at which interest is then
accruing on the principal amount of this Note. Any accrued interest which
for any reason has not theretofore been paid shall be due and payable upon
the payment in full of the outstanding principal balance of this Note.
2. PAYMENT OF PRINCIPAL.
(a) SCHEDULED PAYMENTS. On each Quarterly Payment Date following the
occurrence of the Amortization Trigger Date through the Maturity Date, the
Company shall pay one-eighth of the original principal amount of this Note
(or if the principal amount then outstanding on this Note is less than such
amount, the remaining principal amount then outstanding); PROVIDED, THAT,
the Company shall pay the entire principal amount of this Note then
outstanding on the Final Maturity Date. The payments required to be made on
each Quarterly Payment Date and the Maturity Date are referred to herein
collectively as the "SCHEDULED PAYMENTS." Any such payment pursuant to this
SECTION 2(A) shall be accompanied by payment in cash of all interest
accrued to the date of such payment (if any), plus the Redemption Premium
Amount payable as of the date of such repayment (if any).
(b) OPTIONAL PREPAYMENTS. Subject to the terms and conditions of this
SECTION 2(B), the Company may, at its option, prepay at any time and from
time to time, all or any part of the outstanding principal amount due on
the Notes; PROVIDED, HOWEVER, that each such prepayment shall be made
solely in cash and shall be made to all Noteholders, pro rata according to
the principal amounts of their respective Notes, and that the aggregate
amount of any such prepayment shall be in increments of $500,000 (or such
lesser amount equal to the aggregate principal amount of all Notes then
outstanding). Prepayments of principal shall equal the amount so prepaid,
PLUS an amount equal to the amount of all interest accrued on such
principal amount and not yet paid, PLUS an amount equal to the Redemption
Premium Amount calculated with respect thereto. To exercise its option to
make any optional prepayment hereunder, the Company must give the holder
hereof written notice of such prepayment not less than five days and not
more than ten days prior to the date fixed for such prepayment, specifying
the date of proposed prepayment, the aggregate principal amount of all
Notes to be prepaid on such date, the aggregate amount of interest and the
aggregate Redemption Premium Amount, if any, to be paid with such aggregate
prepayment of principal, on such date, the principal amount of this Note to
be prepaid on such date, the Redemption Premium Amount, if any, to be paid
with respect to this Note on such date, and the amount of interest to be
paid with such prepayment of principal on this Note. All optional
prepayments of principal made pursuant to this SECTION 2(B) shall be
applied against principal amounts due in the inverse order of maturity
thereof. Each notice of a prepayment delivered
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hereunder shall be irrevocable and the amounts specified in the immediately
preceding sentence shall become due and payable on the date specified
therein for repayment.
(c) INVOLUNTARY PREPAYMENT. Concurrently with any payment of principal
received by the holder of this Note resulting from the exercise by such
holder of any remedy available to such holder subsequent to the occurrence
of an Event of Default and the acceleration of the payment of principal and
interest hereunder, the Company shall pay to such holder in cash the
Redemption Premium Amount with respect thereto, if any.
(d) PAYMENT OF INTEREST WITH PRINCIPAL. Contemporaneously with making
any payment or prepayment of principal on this Note, the Company will also
pay in cash to the holder hereof all interest accrued but unpaid on this
Note through the date of such payment in respect of such principal.
3. METHOD OF PAYMENTS.
(a) HOME OFFICE PAYMENT. So long as the Purchaser or any of its
nominees shall be the holder of this Note, and notwithstanding anything
contained in this or any other Note to the contrary, the Company will pay
all sums for principal, interest, premiums, dividends or otherwise becoming
due on this Note not later than 1:00 p.m., Chicago time, on the date such
payment is due, in immediately available funds, in accordance with the
payment instructions that the holder thereof designates in writing, without
the presentation or surrender of such Note or the making of any notation
thereon. Any payment made after 1:00 p.m., Chicago time, on a Business Day
will be deemed made on the next following Business Day. Prior to any sale
or other disposition of any Note by the Purchaser or its nominee, the
Purchaser will, at its election, either endorse thereon the amount of
principal paid thereon and the last date to which interest has been paid
thereon or surrender such Note(s) to the Company in exchange for a new Note
or Notes, as the case may be, pursuant to SECTION 3(C). The Company will
afford the benefits of this SECTION 3(A) to each Person which is the direct
or indirect transferee of any Note purchased, or deemed to be held, by the
Purchaser under the Agreement and which has made the same agreement
relating to this Note as the Purchaser has made in this SECTION 3(A).
(b) ALLOCATION. In the case of any payment (whether a Scheduled
Payment, an optional prepayment, an involuntary prepayment, a payment of
interest, a payment of principal, a payment of Redemption Premium Amount or
any other payment) with respect to any of the Notes, the amount paid shall
be allocated among all of the Notes at the time outstanding in proportion,
as nearly as practicable, to the respective unpaid amount of principal,
interest and Redemption Premium Amount thereof, with adjustments, to the
extent practicable, to compensate for any prior payments not made exactly
in such proportion. Each such payment shall be applied first to the payment
of Redemption Premium Amount then due and payable, second to the payment of
accrued and unpaid interest and, after payment of the Redemption Premium
Amount and unpaid interest, to payment of principal. In the case of each
payment of principal of the Notes, the principal amount to be paid shall
mature and become due and payable on the date fixed for such payment,
together with interest on such principal amount and Redemption Premium
Amount, if any, accrued to such date. From and
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after such date, interest on such principal amount shall cease to accrue,
unless the Company shall fail to pay such principal amount when so due and
payable, together with such accrued interest and Redemption Premium Amount.
Any Note paid in full shall be surrendered to the Company and canceled and
shall not be reissued.
(c) TRANSFER AND EXCHANGE. Upon surrender of any Note for registration
of transfer or for exchange to the Company at its principal office, the
Company at its sole expense will execute and deliver in exchange therefor a
new Note or Notes, as the case may be, as requested by the holder or
transferee, which aggregate the unpaid principal amount of such Note,
registered as such holder or transferee may request, dated so that there
will be no loss of interest on such surrendered Note and otherwise of like
tenor. The issuance of new Notes shall be made without charge to the
holder(s) of the surrendered Note for any issuance tax in respect thereof
or other cost incurred by the Company in connection with such issuance.
(d) REPLACEMENT. Upon receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of any Note and,
in the case of any such loss, theft or destruction of any Note, upon
receipt of an indemnity reasonably satisfactory to the Company (provided
that, if the Noteholder is a Purchaser, its own unsecured agreement shall
be satisfactory) or, in the case of any such mutilation, upon the surrender
and cancellation of such Note, the Company, at its expense, will execute
and deliver, in lieu thereof, a new Note of like tenor and dated so that
there will be no loss of interest on such lost, stolen, destroyed or
mutilated Note. Any Note in lieu of which any such new Note has been so
executed and delivered by the Company shall not be deemed to be an
outstanding Note for any purpose of the Agreement.
4. SUBORDINATION.
(a) NOTES SUBORDINATED TO SENIOR INDEBTEDNESS. Subject to SECTION 4(D)
below and solely for the benefit of the holders of Senior Indebtedness, the
Noteholder by its acceptance hereof covenants and agrees that all payments
of the principal of (and premium, if any), and interest on, this Note shall
be subordinated in accordance with the provisions of this SECTION 4 to the
prior payment in full of all Senior Indebtedness. For purposes of this
SECTION 4, the term "SENIOR INDEBTEDNESS" shall mean the payment
obligations of the Company under the Loan Agreement as Amended, with
respect to the repayment of principal, the payment of interest, reasonable
and customary fees, and the reimbursement of reasonable expenses incurred;
PROVIDED, HOWEVER, that no such amendment, modification, extension,
supplement or refinancing of the Loan Agreement shall directly or
indirectly (i) increase the amount or extend or accelerate the date of any
scheduled or mandatory payment of principal or interest thereunder, except
that (A) the Company may borrow and reborrow from time to time under the
Revolver and the Term B Loan and the Revolver may be renewed from time to
time providing for a new maturity date, provided that in connection with
any such renewal the Loan Agreement shall be amended in a manner so as not
to be on terms more restrictive in any manner than the terms being renewed;
provided further that such new maturity date shall not, in the case of the
Term B Loan, be after the original maturity date of the Term B Loan, (B)
any scheduled or mandatory principal payment under the Term A Loan or the
Term C Loan may be extended so long as the weighted average life to
maturity of the Term A Loan and the Term C Loan,
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measured from the date of Closing and taking into account all repayments of
principal previously made in respect thereof as of the time of such
determination, if any, is not increased by more than six months from that
in effect at the Closing, and (C) such amendment may increase the principal
amount of Senior Indebtedness so long as the aggregate of all such
increases pursuant to this clause (C) from and after the date of the
Closing shall not exceed $2,000,000 in the aggregate, (ii) increase the
rate or rates at which interest accrues or the methods of calculation
thereof (including without limitation by amending any provisions (including
definitions) used in calculating such interest rates such that a higher
rate or margin may apply), (iii) increase any fees, indemnities, expense
reimbursements or other charges payable to the lenders thereunder, or (iv)
amend, modify, add or otherwise impose any representation, covenant or
default or any other term or provision in a manner which is more onerous or
more restrictive on the holders of the Notes or the Company or change any
of the restrictions in the Loan Agreement or other agreements delivered in
connection therewith or relating to performance by the Company of the Note
Obligations (including restrictions which prohibit or limit the payment or
prepayment of any amount with respect to the Notes or the Note
Obligations). The foregoing notwithstanding, in no event will the Notes be
subordinated at any time to an amount of Senior Indebtedness exceeding an
aggregate amount equal to $23,500,000, PLUS the aggregate (not to exceed
$2,000,000) of the principal amounts, if any, by which the aggregate
principal amount of Senior Indebtedness is increased pursuant to an
amendment or amendments thereto permitted by clause (i)(C) of this Section
4(a), MINUS the aggregate amount of permanent reductions in the outstanding
principal of, or commitments to extend credit under the Loan Agreement as
Amended.
(b) PRIORITY AND PAYMENT OVER OF PROCEEDS IN CERTAIN EVENTS.
(i) SUBORDINATION ON DISSOLUTION, LIQUIDATION OR REORGANIZATION
OF THE COMPANY. Upon payment or distribution of assets or securities
of the Company of any kind or character, whether in cash, property or
securities, upon any dissolution or winding up or total or partial
liquidation or reorganization of the Company, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other
proceedings or upon any assignment for the benefit of creditors or any
other marshaling of the assets and liabilities of the Company
(collectively, a "REORGANIZATION"), all Senior Indebtedness shall
first be paid in full, or payment provided for in cash or cash
equivalents in a manner reasonably satisfactory to the holders of
Senior Indebtedness, before any direct or indirect payments or
distributions, including, without limitation, by exercise of set-off,
of any cash, property or securities (except that Noteholders may
receive equity securities or other securities which are subordinated
to the Senior Indebtedness at least to the same extent as set forth
herein ("JUNIOR SECURITIES")), on account of principal of (or premium,
if any) or interest on the Notes and to that end the holders of Senior
Indebtedness shall be entitled to receive (pro rata on the basis of
the respective amounts of Senior Indebtedness held by them) directly,
for application to the payment thereof (to the extent necessary to pay
all Senior Indebtedness in full after giving effect to any
substantially concurrent payment or distribution to or provision for
payment to the holders of such Senior Indebtedness), any payment or
distribution of any kind or character, whether in cash, property or
securities (other than Junior Securities), in respect of
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the Notes. Each Noteholder will retain the right to vote all claims in
respect of the Notes in any Reorganization.
(ii) SUBORDINATION ON DEFAULT IN SENIOR INDEBTEDNESS. No direct
or indirect payment by or on behalf of the Company of principal of
(and premium, if any) or interest on, this Note, whether pursuant to
the terms hereof, upon acceleration of this Note or otherwise, shall
be made if at the time of such payment there exists (A) a default in
payment of all or any portion of principal of, interest on, fees or
other amounts owing which constitute Senior Indebtedness (a "PAYMENT
DEFAULT"), or (B) subject to the following sentences, any Nonmonetary
Default (defined below) and the Noteholder has received notice thereof
from the holder(s) of a majority in principal amount of the Senior
Indebtedness (the "MAJORITY SENIOR LENDER"), accompanied by a
certification from the Persons delivering such notice that such
Persons are such holders, and in either case such default shall not
have been cured or waived in writing, PROVIDED, HOWEVER, that if the
holders of Senior Indebtedness have not, within the period specified
in the next sentence with respect to a Nonmonetary Default, declared
the Senior Indebtedness to be immediately due and payable (or have
declared such Senior Indebtedness to be immediately due and payable
and within such period have rescinded such acceleration), then and in
that event, all payments then or previously due with respect to the
Notes or the Agreement shall be paid. With respect to any Nonmonetary
Default, the period referred to in the preceding sentence shall
commence only upon delivery by the Majority Senior Lender of written
notice to the Noteholders (specifying all defaults and events of
default existing at such time under the Loan Agreement as Amended), of
the commencement of such period, accompanied by a certification from
the Persons delivering such notice that such Person or Persons are
such Majority Senior Lender, and shall end on the earlier of (ii) the
179th day after the beginning of such period and (y) the first such
date as of which all defaults described in such notice have been cured
(such period, a "PAYMENT BLOCKAGE PERIOD"). The aggregate number of
days during which any one or more Payment Blockage Periods may be in
effect within any 365 consecutive days shall not exceed 180 days and
no event of default (whether a Payment Default or a Nonmonetary
Default) that previously served as a basis for the commencement of any
such period or that was in existence upon or after the commencement of
any period, or on or after the date of delivery of the notice
described in such clause (B), will be the basis for a future such
notice (it being understood that any breach of a financial covenant
contained in Sections 9.5 through 9.8 of the Loan Agreement, or of any
other financial covenant that may be included in the Loan Agreement as
Amended, measured as of any particular date will be deemed to be cured
if, as of any subsequent date on which compliance with such covenant
is tested, no breach of such covenant exists). Upon termination of any
such period, all amounts previously due and unpaid with respect to the
Notes shall be paid and all amounts which thereafter become due with
respect to the Notes shall be paid when due. For purposes hereof, a
"NONMONETARY DEFAULT" is any event of default, other than a Payment
Default, under the Loan Agreement as Amended, if the aggregate amount
of all Senior Indebtedness then outstanding will become immediately
due and payable either upon occurrence thereof or upon demand by the
holders of such Senior Indebtedness.
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(iii) RIGHTS AND OBLIGATIONS OF THE NOTEHOLDER.
(A) In the event that, notwithstanding the foregoing
provision prohibiting such payment or distribution, the
Noteholder shall have received any payment (other than payment of
Junior Securities) on account of this Note at a time when such
payment is prohibited by such provision before the Senior
Indebtedness is paid in full, then and in such event, such
payment or distribution shall be received and held in trust by
the Noteholder apart from its other assets and paid over or
delivered to the holders of the Senior Indebtedness remaining
unpaid to the extent necessary to pay in full such Senior
Indebtedness in accordance with its terms and after giving effect
to any concurrent payment or distribution to the holders of such
Senior Indebtedness.
(B) The Noteholder shall not, without the prior written
consent of the Majority Senior Lender, accelerate the maturity
of, or institute proceedings to enforce, this Note or commence or
join with any other creditor of the Company in commencing any
proceeding against the Company seeking to effect a
Reorganization, notwithstanding any provision to the contrary
contained in this Note or in any agreement or instrument relating
hereto, except on or after the first to occur of a Standstill
Termination Event (defined below) or the 90th day following the
occurrence of an Event of Default except to the extent necessary
to toll any statute of limitations that would extinguish any
remedy of the Noteholder of this Note. For purposes of the
foregoing, a "STANDSTILL TERMINATION EVENT" will be deemed to
occur upon the earlier of (1) commencement of a Reorganization
and (2) the acceleration of the maturity of or set-off against
any Senior Indebtedness, whether directly or indirectly
(including by way of any termination of commitments or reduction
in commitments of more than $250,000 under any Senior
Indebtedness).
(C) Upon any payment or distribution of assets or securities
referred to in this SECTION 4, the Noteholder shall be entitled
to rely upon any order or decree of a court of competent
jurisdiction in which such dissolution, winding up, liquidation
or reorganization proceedings are pending, and upon a certificate
of the receiver, trustee in bankruptcy, liquidating trustee,
agent or other person making any such payment or distribution,
delivered to the Noteholder for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders
of Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this SECTION 4.
(c) SUBROGATION. Upon the payment in full of all Senior Indebtedness,
the Noteholder shall be subrogated to the extent of the payments or
distributions made to the holders of, or otherwise applied to payment of,
the Senior Indebtedness pursuant to the provisions of this SECTION 4 and to
the right of the holders of Senior Indebtedness to receive payments or
distributions of assets of the Company made on the Senior Indebtedness
until the Notes shall be paid in full, and
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for the purposes of such subrogation, no payments or distributions to
holders of Senior Indebtedness of any cash, property or securities to which
the Noteholder would be entitled except for the provisions of this SECTION
4, and no payment over pursuant to the provisions of this SECTION 4 to
holders of Senior Indebtedness by the Noteholder, shall, as between the
Company, its creditors other than holders of Senior Indebtedness and the
Noteholders, be deemed to be payment by the Company to or on account of
Senior Indebtedness, it being understood that the provisions of this
SECTION 4 are solely for the purpose of defining the relative rights of the
holders of Senior Indebtedness, on the one hand, and the Noteholder, on the
other hand.
If any payment or distribution to which the Noteholder would otherwise have
been entitled but for the provisions of this SECTION 4 shall have been applied,
pursuant to the provisions of this SECTION 4, to the payment of Senior
Indebtedness, then and in such case, the Noteholders shall be entitled to
receive from the holders of Senior Indebtedness (pro rata based on the principal
amount of their respective Notes) at the time outstanding any payments or
distributions received by such holders of Senior Indebtedness in excess of the
amount sufficient to pay all Senior Indebtedness in full.
(d) OBLIGATIONS OF THE COMPANY UNCONDITIONAL. The provisions of
SECTION 4(A) through 4(C) above are solely for the purpose of defining the
relative rights of the holders of Senior Indebtedness, on the one hand, and
the holder of this Note, on the other hand. Nothing contained in this
SECTION 4 or elsewhere in this Note or in any other Note is intended to or
shall impair, as between the Company and the Noteholders, the obligations
of the Company, which are absolute and unconditional, to pay to the
Noteholders the principal of (and premium, if any), and interest on, the
Notes as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of the
Noteholders and creditors of the Company, other than the holders of the
Senior Indebtedness, nor shall anything herein or therein, as between the
Company and the Noteholders, prevent the Noteholder from exercising all
remedies otherwise permitted by applicable law upon the occurrence of an
Event of Default under the Agreement. Without limiting the foregoing, the
failure to make a payment on account of principal of, or interest on, or
the Redemption Premium Amount, if any, with respect to, the Notes by reason
of any provision of this SECTION 4 shall not be construed as preventing the
occurrence of a Default or an Event of Default under this Note or the
Agreement or in any way prevent the holder of this Note from exercising any
right hereunder or under the Agreement other than as provided in this
SECTION 4.
(e) NOTICE TO NOTEHOLDERS. The Company shall give prompt written
notice to the Noteholder of any fact known to the Company which would
prohibit the making of any payment on or in respect of the Notes, but
failure to give such notice shall not affect the subordination of this Note
to the Senior Indebtedness provided in this SECTION 4. Notwithstanding the
provisions of this SECTION 4 or any other provision of the Agreement or
this Note, the Noteholder shall not be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or
in respect of this Note, unless and until the Noteholder shall have
received written notice thereof from the Majority Senior Lender in
accordance with SECTION 4(B)(II) and prior to the receipt of any such
written notice, subject to the provisions of this SECTION 4, the
Noteholders shall be entitled in all respects to assume no such facts
exist. Nothing contained in this SECTION 4(E) shall limit the
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rights of the holders of Senior Indebtedness to recover payments as
contemplated by SECTIONS 4(A) and 4(B).
(f) RIGHT OF ANY HOLDER AS HOLDER OF SENIOR INDEBTEDNESS; AMENDMENTS.
Any holder of Senior Indebtedness in its individual capacity shall be
entitled to all the rights set forth in this SECTION 4, subject to the
limitations set forth herein, with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Agreement shall deprive such
holder of any of its rights as such holder, provided that the provisions of
this SECTION 4 may be amended with the consent of the Majority Senior
Lender.
(g) LIMITATION ON SUBORDINATION. The indebtedness evidenced by this
Note shall rank equally with all other Notes and all existing and future
indebtedness of the Company (other than the Senior Indebtedness and any
other indebtedness that is fully and adequately secured) except for such
indebtedness as may be subordinate thereto and as may be required by
bankruptcy or other laws affecting the rights of creditors generally.
(h) REINSTATEMENT. The provisions of this SECTION 4 shall continue to
be effective or be reinstated, and the Senior Indebtedness shall not be
deemed to be paid in full, as the case may be, if at any time any payment
of any of the Senior Indebtedness is rescinded or must otherwise be
returned by the holder thereof upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, all as though such payment had
not been made.
(i) NOTICES. Any notice required by this SECTION 4 to be given to the
Noteholder shall be given in accordance with SECTION 10 below.
5. DEFAULTS REMEDIES. In case an Event of Default shall occur and be
continuing, the unpaid balance of the principal of, and accrued and unpaid
interest and the Redemption Premium Amount on, this Note may become, or be
declared and become, due and payable in the manner and with the effect provided
in the Agreement.
6. DEFINITIONS.
"AMORTIZATION TRIGGER DATE" means the date that is the earlier of (i)
September 30, 2003 and (ii) the 90th day following the date on which the Term
Loan is paid in full).
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago, Illinois for the conduct of substantially all of
their activities.
"FINAL MATURITY DATE" means the date that is the eighth Quarterly Payment
Date following the Amortization Trigger Date.
"LOANS" shall have the meaning set forth in the Loan Agreement.
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"LOAN AGREEMENT" means the Second Amended and Restated Revolving Credit and
Loan Agreement, dated as of the Closing Date by and between the Company and
Comerica Bank - Texas, a Texas banking association, as in effect on such date
and without amendment or waiver of any provision thereof.
"LOAN AGREEMENT AS AMENDED" means the Loan Agreement, as such agreement may
be amended, supplemented, restated or modified from time to time hereafter in
accordance, and not directly or indirectly inconsistent, with the proviso to the
definition of "Senior Indebtedness" in SECTION 4(A) above and with the
Agreement.
"MAJORITY SENIOR LENDER" means holders of a majority in principal amount of
the Senior Indebtedness, provided that the Majority Senior Lender shall be
deemed to be Comerica Bank - Texas until one or more subsequent such holders of
the Senior Indebtedness have delivered to the Noteholders a certification that
such Persons are the Majority Senior Lenders.
"NOTEHOLDER" with respect to this Note, means at any time each Person then
the record owner hereof and "NOTEHOLDERS" means all of such Noteholders
collectively.
"NOTE OBLIGATION" means any obligation of the Company with respect to the
repayment or performance of any monetary obligation of such party arising under
or in connection with the Agreement, the Notes or any other document delivered
in connection therewith or herewith, and "NOTE OBLIGATIONS" means all of such
Note Obligations collectively.
"REDEMPTION PREMIUM AMOUNT" means
(a) with respect to any repayment of principal of this Note made on or
prior to the first anniversary of the Closing Date, 5.0% multiplied by the
aggregate principal amount of this Note so prepaid;
(b) with respect to any repayment of principal of this Note made after
the first anniversary of the Closing Date and on or prior to the second
anniversary of the Closing Date, 4.0% multiplied by the aggregate principal
amount of this Note so prepaid;
(c) with respect to any repayment of principal of this Note made after
the second anniversary of the Closing Date and on or prior to the third
anniversary of the Closing Date, 3.0% multiplied by the aggregate principal
amount of this Note so prepaid;
(d) with respect to any repayment of principal of this Note made after
the third anniversary of this Closing Date and on or prior to the fourth
anniversary of the Closing Date, 2.0% multiplied by the aggregate principal
amount of this Note so prepaid;
(e) with respect to any repayment of principal of this Note made after
the fourth anniversary of this Closing Date and on or prior to the fifth
anniversary of the Closing Date, 1.0% multiplied by the aggregate principal
amount of this Note so prepaid; and
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(f) with respect to any repayment of principal of this Note made after
the fifth anniversary of the Closing Date, zero.
"QUARTERLY PAYMENT DATE" shall mean June 15, September 15, December 15 and
March 15 of each year, or if such day is not a Business Day, the first Business
Day prior to such date.
"SENIOR INDEBTEDNESS" has the meaning given such term in SECTION 4(A)
above.
"TERM LOAN" means, collectively, the loans made to the Company pursuant to
the Term Note A and the Term Note C (each as defined in the Loan Agreement).
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any Indebtedness
at or as of any date, the number of years (calculated to the nearest 1/100th)
obtained by DIVIDING
(a) the sum, for each of the then remaining installment, sinking fund,
scheduled maturity or other required payments of principal, including
payments at final maturity, in respect of such Indebtedness (each, an
"INSTALLMENT"), of the amounts obtained by MULTIPLYING (i) the amount of
each such Installment, BY (ii) the number of years (calculated to the
nearest 1/100th) from such date to the date on which such payment is
required to be made, BY
(b) the then outstanding aggregate principal amount of such
Indebtedness.
7. NOTE TRANSFERABLE. Subject to the transfer conditions referred to in the
legend endorsed hereon, this Note and all rights hereunder are transferable, in
whole or in part, without charge to the holder.
8. AMENDMENT AND WAIVER. The provisions of this Note may be modified,
amended or waived, and the Company may take any action herein prohibited, or
omit to perform any act herein required to be performed by it, only in the
manner set forth in the Agreement; PROVIDED, HOWEVER that the provisions of
SECTION 4 may be modified, amended or waived with (and may not be amended
without) the consent of the Majority Senior Lender.
9. CANCELLATION. After all principal, premiums (if any) and accrued
interest at any time owed on this Note have been paid in full, this Note will be
surrendered to the Company for cancellation and will not be reissued.
10. PLACE OF PAYMENT AND NOTICES. Subject to SECTION 3(A) above, payments
of principal and interest are to be delivered to the Noteholder of this Note at
the following address: c/o Continental Illinois Venture Corporation, 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other address as such
Noteholder has specified by prior written notice to the Company. Notices by the
Majority Senior Lender or holders of Senior Indebtedness may be delivered to the
attention of Bank of America, as agent for delivery of notice to the holder of
this Note at the following
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address: 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attn: Xxxxxx Xxxxxxx
or at such other address as such Noteholder has specified by prior written
notice to the Majority Senior Lender. No notice shall be deemed to have been
delivered until the first Business Day following actual receipt thereof at the
foregoing address. A copy of all notices relating to payments of principal and
interest hereunder and all other notices are to be delivered as provided in
SECTION 10 of the Agreement.
11. GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS NOTE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF ILLINOIS, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF
THE STATE OF ILLINOIS OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF ILLINOIS.
12. THIRD PARTY BENEFICIARY. Certain provisions of this Note (including,
without limitation, the subordinated payment provisions) are for the benefit of
the Majority Senior Lender and may be enforced by such person against the
Noteholder of this Note (or its assignee) or any one or more of them in
accordance with the provisions hereof. Section 4 hereof shall be amended only
with the consent of each of the Noteholder, the Company and the Majority Senior
Lender.
13. PAYMENTS HELD IN TRUST. If, notwithstanding the provisions of Section 4
hereof, any Noteholder receives any payment on account of this Note at such time
when payment is prohibited by the provisions of Section 4, unless directed
otherwise by a court of competent jurisdiction, such payment shall be held in
trust by such Noteholder apart from its other assets and paid over and delivered
to the Majority Senior Lender to the extent necessary to pay in full in cash
such Senior Indebtedness in accordance with its terms.
14. NO RESERVE. The Company shall not and the Noteholder shall not require
a sinking fund or similar fund to be established in support of payments on this
Note as provided herein.
* * * * *
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IN WITNESS WHEREOF, the Company has executed and delivered this Note on the
date first written above.
XXXXXXXXX SIGN COMPANY
By:
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Its:
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