Exhibit 10.16
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made and entered into as of
the 12 day of November 2001, by and between MediaBin, Inc., a Georgia
corporation (the "Company"), and Venturos AS, a Norwegian corporation (the
"Lender").
PREAMBLE
The Company and the Lender are entering into this Agreement for the
purpose of establishing a term loan.
NOW, THEREFORE, in consideration of the premises hereof, the mutual
covenants and conditions set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Loan. On the date hereof the Company is authorized to borrow the
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principal amount of $1,125,000 from the Lender (the "Loan"), which will be
evidenced by the Term Promissory Note in the form attached hereto as Exhibit A
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(the "Note"). The Lender is willing to make the Loan to the Company on the terms
and conditions described herein. The Company and the Lender agree that the
payment and performance of all obligations relating to the Loan shall not be
secured by any property of the Company. The Company may prepay the Loan, in
whole or in part, at any time without penalty or premium; provided, however,
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that the Company shall give the Lender five days notice of any payment of
outstanding principal under the Note other than a scheduled principal payment
prescribed by the Note (each, a "Payment Notice").
2. Acceleration Rights. Upon the commencement of an action by the
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Company to obtain shareholder approval of an offer from a person or entity
unaffiliated with the Lender and unaffiliated with Xxxxxxx Capital AS that would
result in a Change of Control (as defined below), Lender may cause the
acceleration of the Note so that all of the remaining outstanding and
unconverted principal is due within ten (10) days of the closing of the
transaction constituting a Change of Control. For purposes of this Agreement, a
"Change of Control" shall mean a transaction in which (i) any person or group of
persons that was not previously a majority shareholder of the Company becomes
the beneficial owner, directly or indirectly, of securities of the Company
representing a majority of the combined voting power of the Company's
then-outstanding securities or (ii) the Company sells, transfers, leases,
exchanges or disposes of at least eighty-five percent (85%) of its assets.
3. Representations, Warranties and Covenants.
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(a) By the Company. The Company is a corporation duly
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organized and existing under the laws of the State of Georgia and has the
corporate power and authority to carry on its business as and where now
conducted. The Company has the corporate power and authority necessary to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action of the Company. The authorized capital stock of the Company
consists of 40,000,000 shares of the Common Stock, of which 17,529,607 shares
are issued and outstanding. All of the issued and outstanding shares of the
Common Stock are duly and validly issued and are fully paid and non-assessable.
(b) By the Lender. The Lender is a corporation duly organized
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and existing under the laws of the country of Norway and has the corporate and
legal power and authority necessary to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action of the Lender. The Lender
has not authorized any person to act as broker, finder or in any other similar
capacity in connection with the transactions contemplated by this Agreement.
4. Default; Remedies. A "Default" shall exist if any of the following
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occurs and is not remedied (i) in the case of events described in clause (a)
below, within 15 days after notice from the Lender to the Company thereof, and
(ii) in the case of events described in clauses (b) through (h) below or
elsewhere in this Agreement, within 30 days after notice from the Lender to the
Company thereof: (a) failure of the Company punctually to make any payment of
any amount payable under the Note, whether at maturity, or at a date fixed for
any prepayment or partial prepayment, or by acceleration, or otherwise; (b) any
statement, representation, or warranty of the Company made in this Agreement
shall be false or misleading in any material respect as of the date made; (c)
failure of the Company punctually and fully to comply with any of its covenants
in this Agreement; (d) if the Company becomes insolvent as defined in the
Georgia Uniform Commercial Code or makes an assignment for the benefit of
creditors; or if any action is brought by the Company seeking dissolution of the
Company or liquidation of its assets or seeking the appointment of a trustee,
interim trustee, receiver, or other custodian for any of its property; or if the
Company commences a voluntary case under the Federal Bankruptcy Code; or if any
reorganization or arrangement proceeding is instituted by the Company for the
settlement, readjustment, composition or extension of any of its debts upon any
terms; or if any action or petition is otherwise brought by the Company seeking
similar relief or alleging that it is insolvent or unable to pay its debts as
they mature; (e) the Company is in default on indebtedness to another person,
the amount of such indebtedness exceeds $250,000 and the acceleration of the
maturity of such indebtedness would have a material adverse effect upon the
Company; or (f) a sale of all or substantially all of the assets of the Company
unless waived in writing by the Lender. Upon the occurrence of a Default, the
Lender shall be entitled to declare any of the amounts owed by the Company under
the Note due and payable, whereupon they immediately will become due and payable
without presentment, demand, notice or protest of any kind (all of which are
expressly waived by the Company).
5. Miscellaneous. All notices or other communications which are
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required or permitted hereunder shall be in writing and sufficient if delivered
(i) personally, (ii) by registered or certified mail, postage prepaid or (iii)
by a recognized courier service to the persons at the addresses set forth below
(or at such other address as may be provided hereunder), and shall be deemed to
have been delivered as of the date so delivered or transmitted:
The Company: MediaBin, Inc.
Seven Xxxxxxxx Xxxxxx, Xxxxx 000
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx, President
With copy
to counsel: Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
The Lender: Venturos AS
X.X. Xxx 000
0000 Xxxxxxx, Xxxxxx
Each party shall bear the expenses incurred by it or on its behalf in connection
with the transactions contemplated by this Agreement; provided, however, that
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the Company shall be liable for any reasonable attorneys' fees actually incurred
by the Lender in enforcing this Agreement or the Note upon a default by the
Company of its obligations thereunder. This Agreement, together with the Note,
contain the entire agreement among the parties with respect to the transactions
contemplated hereby, and supersede all prior arrangements or understandings with
respect thereto, written or oral. This Agreement shall inure to the benefit of
and be binding upon the Company's and the Lender's successors and any
permitted assignee of this Agreement or the Note. This Agreement and the Note
shall not be assigned by the Lender without the prior written consent of the
Company; provided, however, that subject to compliance with the requirements of
Regulation S, the Lender may sell participations in the Note to not more than
four other persons (including indirect participants), provided that no such
participation shall relieve the Lender of its obligations under this Agreement,
including without limitation its obligations under Section 1 hereof. In
addition, that subject to the requirements of Regulation S, the Lender may
assign this Agreement and the Note to an Affiliate (defined below) of Venturos
AS without the prior written consent of the Company subject to the condition
that Venturos AS remain liable for the performance of all of the obligations of
the Lender and its assigns thereunder. For purposes of the foregoing sentence,
"Affiliate" shall have the meaning given such term in Rule 144(a)(1) promulgated
under the Federal Act. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia except to the extent United
States federal law shall be applicable. This Agreement may be executed in one or
more counterparts, each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed, sealed and delivered by their duly authorized officers as of the date
first written above.
MEDIABIN, INC. VENTUROS AS
By: /s/ Xxxxx X. Xxxxx By: /s/ Rune Dybesland
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Xxxxx X. Xxxxx
President and Chief Executive Officer
Print Name:
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Attest: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx X. Xxxxxxxx Print Title:
Secretary --------------------------------
Date: Date:
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Exhibit A
TERM PROMISSORY NOTE
$1,125,000 November 12, 2001
FOR VALUE RECEIVED, the undersigned, MediaBin, Inc., a Georgia
corporation (the "Borrower"), promises to pay to Venturos AS, a Norwegian
corporation (the "Lender"), at X.X. Xxx 000, 0000 Xxxxxxx, Xxxxxx (or at such
other place as the Lender may designate in writing to the Borrower), in lawful
money of the United States of America, the principal sum of one million one
hundred twenty five thousand dollars ($1,125,000), plus interest as hereinafter
provided.
This Term Promissory Note (the "Note") is the Note made and given as
described in that certain Loan Agreement dated as of November 12, 2001, between
the Borrower and the Lender (the "Loan Agreement"). The Borrower shall be
entitled to borrow funds hereunder pursuant to the terms and conditions of the
Loan Agreement. In the event of any inconsistency between this Note and the Loan
Agreement, this Note shall control. All capitalized terms used herein shall have
the meanings ascribed to such terms in the Loan Agreement, except to the extent
such capitalized terms are otherwise defined or limited herein. This Note may be
assigned only as provided in the Loan Agreement.
The Borrower promises to pay interest on the unpaid principal amount
outstanding hereunder (the "Loan"), at a simple interest rate per annum equal to
the Prime Rate Basis. "Prime Rate Basis" shall mean, on any day, a simple
interest rate per annum equal to the Prime Rate (as defined herein) plus 100
basis points (1.0%). "Prime Rate" shall mean, on any day, the rate of interest
published as the "Prime Rate" as of the last business day of the full calendar
month preceding such day by Bank of America, N.A. (Charlotte, North Carolina),
or any successor institution. The Prime Rate in effect as of the close of
business of each day shall be the applicable Prime Rate for the day and each
succeeding non-business day in determining the applicable Prime Rate Basis.
Interest shall be calculated on the basis of a 360-day year for the actual
number of days elapsed.
Interest under this Note shall be due and payable quarterly in arrears
on the last day of each calendar quarter, commencing March 31, 2002, and
continuing to be due on the last day of each calendar quarter thereafter until
this Note is paid in full. Interest shall also be due and payable when this Note
shall become due (whether at maturity, by reason of acceleration or otherwise).
After default, interest shall also be due and payable upon demand from time to
time by the Lender as provided below.
Unless previously made subject to acceleration in accordance with the
provisions of the Loan Agreement, the indebtedness evidenced by this Note shall
be due and payable on March 31, 2002, plus all accrued and unpaid interest as
hereinabove provided.
Overdue principal shall bear interest for each day from the date it
became so due until paid in full, payable on demand, at a rate per annum
(computed on the basis of a 360-day year for the actual number of days elapsed)
equal to two percent (2%) per annum in excess of the interest rate otherwise
payable hereunder.
In no event shall the amount of interest due or payable hereunder
exceed the maximum rate of interest allowed by applicable law, and in the event
any such payment is inadvertently paid by the Borrower or inadvertently received
by the Lender, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the Lender, in writing, that the Borrower
elects to have such excess sum returned to it forthwith. It is the express
intent hereof that the Borrower not pay and the Lender not receive, directly or
indirectly, in any manner whatsoever, interest in excess of that which may be
lawfully paid by the Borrower under applicable law.
The Borrower hereby waives presentment for payment, demand, notice of
non-payment or dishonor, protest and notice of protest, or any other notice of
any kind with respect thereto.
This Note is entitled to the benefits of the Loan Agreement, which
contains provisions with respect to the prepayment of the Loan. Prepayment of
the Loan may be made by the Borrower as provided in the Loan Agreement.
Time is of the essence of this Note.
This Note shall be deemed to be made pursuant to the laws of the State
of Georgia.
IN WITNESS WHEREOF, the duly authorized officers of the Borrower have
executed, sealed, and delivered this Note, as of the day and year first above
written.
MEDIABIN, INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President and Chief Executive Officer
Attest: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Secretary
