EXHIBIT 10.6
RESTATED AND AMENDED
LOAN AGREEMENT
AMONG
XXXX MEDIA CORPORATION,
XXXX MEDIA LTD.,
XXXXXXX & XXXXX, INC.
AND
U.S. BANK NATIONAL ASSOCIATION,
FORMERLY KNOWN AS UNITED STATES NATIONAL BANK OF OREGON
HERSHNER, HUNTER, XXXXXXX, XXXXX & XXXXX, LLP
LAW OFFICES
000 XXXX 00XX XXXXXX
X.X. XXX 0000
XXXXXX, XXXXXX 00000
FAX (000) 000-0000
TELEPHONE (000) 000-0000
TABLE OF CONTENTS
PAGE
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2. THE REVOLVING LOAN. . . . . . . . . . . . . . . . . . . . . . . . . .7
2.1. MAXIMUM AMOUNT . . . . . . . . . . . . . . . . . . . . . . . .7
2.2. LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . . . . .7
2.3. REQUESTS FOR ADVANCES. . . . . . . . . . . . . . . . . . . . .8
2.4. REPRESENTATION AND WARRANTY OF CREDIT AVAILABILITY . . . . . .8
2.5. REVOLVING NOTE . . . . . . . . . . . . . . . . . . . . . . . .8
2.6. INTEREST RATE AND PAYMENT OF INTEREST. . . . . . . . . . . . .8
2.7. PAYMENT OF PRINCIPAL . . . . . . . . . . . . . . . . . . . . .9
2.8. REVIEW DATE. . . . . . . . . . . . . . . . . . . . . . . . . .9
2.9. FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
3. TERM LOAN A . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
3.1. AMOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
3.2. TERM NOTE A. . . . . . . . . . . . . . . . . . . . . . . . . .9
3.3. PRIME AND/OR LIBOR BORROWING RATES . . . . . . . . . . . . . .9
3.4. COMPUTATION OF INTEREST. . . . . . . . . . . . . . . . . . . 10
3.5. PREPAYMENT PREMIUM . . . . . . . . . . . . . . . . . . . . . 10
3.6. REVOLVING TERM LOAN. . . . . . . . . . . . . . . . . . . . . 10
4. 1998/1999 CONSTRUCTION LOAN . . . . . . . . . . . . . . . . . . . . 11
4.1. MAXIMUM AMOUNT . . . . . . . . . . . . . . . . . . . . . . . 11
4.2. REQUESTS FOR ADVANCES. . . . . . . . . . . . . . . . . . . . 11
4.3. CONDITIONS OF ADVANCES . . . . . . . . . . . . . . . . . . . 11
4.4. REPRESENTATION AND WARRANTY. . . . . . . . . . . . . . . . . 12
4.5. CONSTRUCTION NOTE. . . . . . . . . . . . . . . . . . . . . . 12
4.6. INTEREST RATE AND PAYMENT OF INTEREST. . . . . . . . . . . . 12
4.7. PAYMENT OF PRINCIPAL . . . . . . . . . . . . . . . . . . . . 13
4.8. PREPAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.9. FEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5. CONVERSION TO TERM LOAN . . . . . . . . . . . . . . . . . . . . . . 13
5.1. NO DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.2. NEW CONSTRUCTION NOTE. . . . . . . . . . . . . . . . . . . . 13
5.3. INTEREST RATE ELECTION . . . . . . . . . . . . . . . . . . . 13
5.4. FIXED RATE . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.5. PRIME AND/OR LIBOR BORROWING RATES . . . . . . . . . . . . . 14
5.6. COMPUTATION OF INTEREST. . . . . . . . . . . . . . . . . . . 15
5.7. PREPAYMENT PREMIUM . . . . . . . . . . . . . . . . . . . . . 15
Page i-RESTATED AND AMENDED LOAN AGREEMENT
TABLE OF CONTENTS
(CONTINUED)
PAGE
6. MO PARTNERS LOAN. . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.1. AMOUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.2. MO PARTNERS NOTE . . . . . . . . . . . . . . . . . . . . . . 16
6.3. INTEREST RATE AND PAYMENT OF INTEREST. . . . . . . . . . . . 16
6.4. COMPUTATION OF INTEREST. . . . . . . . . . . . . . . . . . . 17
6.5. PREPAYMENT PREMIUM . . . . . . . . . . . . . . . . . . . . . 17
6.6. FEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7. BRIDGE LOAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.1. MAXIMUM AMOUNT . . . . . . . . . . . . . . . . . . . . . . . 17
7.2. REQUESTS FOR ADVANCES. . . . . . . . . . . . . . . . . . . . 17
7.3. CONDITIONS OF ADVANCES . . . . . . . . . . . . . . . . . . . 17
7.4. REPRESENTATION AND WARRANTY. . . . . . . . . . . . . . . . . 18
7.5. BRIDGE NOTE. . . . . . . . . . . . . . . . . . . . . . . . . 18
7.6. PRIME AND/OR LIBOR BORROWING RATES . . . . . . . . . . . . . 18
7.7. PAYMENT OF PRINCIPAL . . . . . . . . . . . . . . . . . . . . 19
7.8. PREPAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.9. PREPAYMENT PREMIUM . . . . . . . . . . . . . . . . . . . . . 19
7.10. FEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8. TERM LOAN B . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.1. SECONDARY OFFERING.. . . . . . . . . . . . . . . . . . . . . 19
8.2. MAXIMUM AMOUNT . . . . . . . . . . . . . . . . . . . . . . . 19
8.3. SPECIAL CONDITIONS . . . . . . . . . . . . . . . . . . . . . 20
8.4. TERM NOTE B. . . . . . . . . . . . . . . . . . . . . . . . . 20
8.5. INTEREST RATE ELECTION . . . . . . . . . . . . . . . . . . . 20
8.6. FIXED RATE . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.7. PRIME AND/OR LIBOR BORROWING RATES . . . . . . . . . . . . . 21
8.8. COMPUTATION OF INTEREST. . . . . . . . . . . . . . . . . . . 22
8.9. PREPAYMENT PREMIUM . . . . . . . . . . . . . . . . . . . . . 22
8.10. REVOLVING TERM LOAN. . . . . . . . . . . . . . . . . . . . . 22
8.11. FEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
9. LIBOR BORROWING RATE. . . . . . . . . . . . . . . . . . . . . . . . 23
9.1. ELECTION BY BORROWER . . . . . . . . . . . . . . . . . . . . 23
9.2. NOTICE TO BANK . . . . . . . . . . . . . . . . . . . . . . . 23
9.3. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . 24
9.4. ADDITIONAL COMPENSATION TO BANK. . . . . . . . . . . . . . . 24
Page ii-RESTATED AND AMENDED LOAN AGREEMENT
TABLE OF CONTENTS
(CONTINUED)
PAGE
9.5. YIELD MAINTENANCE CHARGE . . . . . . . . . . . . . . . . . . 24
9.6. PAYMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . 25
9.7. DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10. NOTES; SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.1. NOTES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.2. SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10.3. PARTIAL RELEASE OF P&C STOCK . . . . . . . . . . . . . . . . 26
11. CONDITIONS TO EFFECTIVENESS . . . . . . . . . . . . . . . . . . . . 26
12. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . 27
12.1. EXISTENCE AND POWER. . . . . . . . . . . . . . . . . . . . . 27
12.2. AUTHORIZATION. . . . . . . . . . . . . . . . . . . . . . . . 27
12.3. SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . . . . . 27
12.4. ADVERTISING BUSINESS . . . . . . . . . . . . . . . . . . . . 27
12.5. LITIGATION . . . . . . . . . . . . . . . . . . . . . . . . . 27
12.6. FINANCIAL CONDITION. . . . . . . . . . . . . . . . . . . . . 28
12.7. TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
12.8. OTHER AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . 28
12.9. GOOD TITLE . . . . . . . . . . . . . . . . . . . . . . . . . 28
12.10. FIRST PRIORITY SECURITY INTEREST . . . . . . . . . . . . . . 28
12.11. COMPLIANCE WITH LAWS . . . . . . . . . . . . . . . . . . . . 28
12.12. ENFORCEABILITY . . . . . . . . . . . . . . . . . . . . . . . 28
12.13. P&C PURCHASE AGREEMENT . . . . . . . . . . . . . . . . . . . 28
12.14. ACCURACY OF REPRESENTATIONS AND WARRANTIES . . . . . . . . . 29
13. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 29
13.1. INSPECTION RIGHTS. . . . . . . . . . . . . . . . . . . . . . 29
13.2. COLLATERAL AUDITS. . . . . . . . . . . . . . . . . . . . . . 29
13.3. KEEPING OF BOOKS AND RECORDS . . . . . . . . . . . . . . . . 29
13.4. CONDUCT OF BUSINESS. . . . . . . . . . . . . . . . . . . . . 29
13.5. OTHER OBLIGATIONS. . . . . . . . . . . . . . . . . . . . . . 29
13.6. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . 29
13.7. FINANCIAL INFORMATION. . . . . . . . . . . . . . . . . . . . 30
13.8. COMPLIANCE WITH LAWS . . . . . . . . . . . . . . . . . . . . 31
13.9. LANDLORD CONSENTS. . . . . . . . . . . . . . . . . . . . . . 31
13.10. NOTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . 31
Page iii-RESTATED AND AMENDED LOAN AGREEMENT
TABLE OF CONTENTS
(CONTINUED)
PAGE
13.11. CASH FLOW COVERAGE RATIO . . . . . . . . . . . . . . . . . . 32
13.12. CASH FLOW LEVERAGE RATIO . . . . . . . . . . . . . . . . . . 32
14. NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . 33
14.1. LIQUIDATION, MERGER OR SALE OF ASSETS. . . . . . . . . . . . 33
14.2. GUARANTIES, LOANS AND INVESTMENTS. . . . . . . . . . . . . . 33
14.3. LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
14.4. TYPE OF BUSINESS . . . . . . . . . . . . . . . . . . . . . . 33
15. CASH COLLATERAL ACCOUNT . . . . . . . . . . . . . . . . . . . . . . 33
16. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
16.1. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . 34
16.2. CONSEQUENCES OF DEFAULT; BANK'S RIGHTS AND REMEDIES. . . . . 35
17. OUTSTANDING P&C LETTERS OF CREDIT. . . . . . . . . . . . . . . . . 35
17.1. REPRESENTATIONS AND WARRANTIES.. . . . . . . . . . . . . . . 35
17.2. FIRST UNION CERTIFICATE. . . . . . . . . . . . . . . . . . . 35
18. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
18.1. ARBITRATION. . . . . . . . . . . . . . . . . . . . . . . . . 36
18.2. OUT-OF-POCKET COSTS. . . . . . . . . . . . . . . . . . . . . 36
18.3. COLLECTION COSTS AND ATTORNEY FEES . . . . . . . . . . . . . 36
18.4. INTEGRATION; AMENDMENTS; CONFLICTING TERMS . . . . . . . . . 37
18.5. ENFORCEMENT AND WAIVER BY BANK . . . . . . . . . . . . . . . 37
18.6. BINDING EFFECT; ASSIGNMENT . . . . . . . . . . . . . . . . . 37
18.7. COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
18.8. NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . . 37
18.9. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . 38
18.10. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . 38
18.11. COUNTERPARTS; EXECUTION BY FACSIMILE . . . . . . . . . . . . 38
18.12. STATUTORY DISCLOSURE . . . . . . . . . . . . . . . . . . . . 38
Page iv-RESTATED AND AMENDED LOAN AGREEMENT
RESTATED AND AMENDED LOAN AGREEMENT
PARTIES:
XXXX MEDIA CORPORATION, an Oregon corporation (Xxxx)
XXXX MEDIA LTD., a British Columbia corporation (Obie BC)
XXXXXXX & XXXXX, INC., a New York corporation (P&C)
(Xxxx, Xxxx BC and P&C, individually and jointly, are collectively referred
to in this Agreement as Borrower)
U.S. BANK NATIONAL ASSOCIATION, formerly known as United States National
Bank of Oregon (Bank)
RECITALS:
A. On October 31, 1996, Xxxx and Bank entered into a Loan
Agreement. That Loan Agreement was subsequently modified by a First Amendment of
Loan Agreement, a Second Amendment of Loan Agreement, a Third Amendment of Loan
Agreement and a Fourth Amendment of Loan Agreement. That Loan Agreement, as
modified, is referred to in this Agreement as the Original Loan Agreement.
B. The parties are entering into this Agreement for the purposes
of:
1. Restating the Original Loan Agreement to incorporate the
changes made in the subsequent amendments.
2. Adding Obie's wholly owned subsidiaries, Obie BC and
P&C, as co-borrowers under all Loans set forth in this Agreement.
3. Increasing the maximum amount of the Revolving Loan to
Four Million Dollars ($4,000,000) and adding a letter of credit sublimit in the
amount of Two Million Seven Hundred Fifty Thousand Dollars ($2,750,000) under
the Revolving Loan.
4. Adding a reducing, revolving feature to Term Loan A.
5. Providing a bridge loan in the maximum amount of Seven
Million Dollars ($7,000,000) to finance Obie's acquisition of P&C and to support
further growth; and, if Xxxx does not complete a secondary public offering
sufficient to pay in full the bridge loan, providing a take-out term loan to
Borrower in the maximum amount of Seven Million Dollars ($7,000,000).
Page 1-RESTATED AND AMENDED LOAN AGREEMENT
C. Xxxx, Xxxx BC and P&C are all related corporations engaged in
the transit and outdoor advertising business. Borrower desires to pool its
borrowing under this Agreement in order to, among other things, increase its
flexibility in allocating funds where they may best be utilized from time to
time. The Loans set forth in this Agreement are intended for the mutual benefit
of Xxxx, Xxxx BC and P&C. Specifically:
1. Each Borrower is entitled to request Advances under the
Revolving Loan and the 1998/1999 Construction Loan to finance its business.
2. Term Loan A is intended to provide working capital for
each Borrower.
3. The Bridge Loan will be used not only for Obie's
acquisition of P&C, but also to pay certain indebtedness of P&C.
D. Effective September 1, 1998, this Agreement shall supersede the
Original Loan Agreement. Except as specifically set forth in this Agreement, or
in documents executed pursuant to this Agreement, this Agreement does not
supersede any notes, security agreements, trust deeds, guaranties or other
documents executed pursuant to the Original Loan Agreement, and all such
collateral documents secure Borrower's obligations under this Agreement.
AGREEMENTS:
1. DEFINITIONS. As used in this agreement, the following terms
have the following meanings:
1.1. "1998/1999 Construction Loan" means the Loan defined as
the 1998/1999 Construction Loan in the Original Loan Agreement and the Loan
described in Paragraphs 4. and 5. of this Agreement.
1.2. "1998/1999 Construction Note" means any promissory note
evidencing the 1998/1999 Construction Loan, any promissory note substituted for
one or more of them, and any document evidencing a renewal, extension or
modification of one or more of them.
1.3. "Advance" means any one or more of the loans made by
Bank to Borrower pursuant to the Revolving Loan, the 1998/1999 Construction Loan
or Term Loan A.
1.4. "Affiliate" of any Person means any other Person
directly or indirectly controlling, controlled by, or under common control with,
such Person. For purposes of this definition, "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
power or by contract or otherwise.
Page 2-RESTATED AND AMENDED LOAN AGREEMENT
1.5. "Agreement" means this Restated and Amended Loan
Agreement, as amended from time to time.
1.6. "Billboards" means one or more of the advertising signs
erected and/or maintained by Borrower pursuant to the Billboard Site Leases,
including all structures, devices, illumination and connections.
1.7. "Billboard Site Leases" means one or more of those
certain leases in which Borrower is the tenant (or the assignee of the tenant's
interest), pursuant to which Borrower has the right to construct and/or maintain
a Billboard on a site.
1.8. "Borrower" means Xxxx, Xxxx BC and P&C, individually and
jointly. All references to Borrower in this Agreement shall be deemed to mean
each and all of Xxxx, Xxxx BC and P&C.
1.9. "Borrowing Base" means, as at any date the amount
thereof is being determined, an amount equal to eighty percent (80%) of Eligible
Accounts calculated in accordance with GAAP, subject to reduction pursuant to
Paragraph 2.2..
1.10. "Bridge Loan" means the Loan described in Paragraph 7.
1.11. "Bridge Note" means any promissory note evidencing
the Bridge Loan, any promissory note substituted for one or more of them, and
any document evidencing a renewal, extension or modification of one or more
of them.
1.12. "Business Day" means any day other than a Saturday,
Sunday or other day that commercial banks in Portland, Oregon, Minneapolis,
Minnesota, or New York, New York, are authorized or required by law to close.
1.13. "Collateral" means all property in which a lien now or
hereafter exists in favor of Bank as security for all or any portion of the
Loan.
1.14. "Collateral Documents" means, collectively, the
mortgages, deeds of trust, security agreements, stock pledge agreements,
security assignments, financing statements and other similar documents at any
time delivered to Bank in connection with the transactions contemplated by the
Original Loan Agreement and this Agreement, and any document substituted for one
or more of them, and any document evidencing a renewal, extension or
modification of one or more of them.
1.15. "Eligible Account" means any right of Borrower to
payment for advertising design services or for advertising space on a Billboard
or mass transit vehicle, furnished pursuant to or in connection with a contract
for the sale of services or for the rental of advertising space, excluding any
accounts as to which (i) with respect to advertising design services, any amount
due thereon is payable more than ninety (90) days after the date of invoice;
(ii) with respect to
Page 3-RESTATED AND AMENDED LOAN AGREEMENT
advertising space rentals, payment is due more than thirty (30) days after the
then current date; (iii) amounts due thereon become past due under the original
terms thereof for such period as from time to time may be established by Bank;
(iv) the account debtor or other person obligated to make payment thereon
(individually and jointly referred to in this paragraph as "Account Debtor")
asserts or may assert an offset, defense, counterclaim or other right to avoid
or reduce liability thereon; (v) there shall occur as to any Account Debtor any
of the following events: death, dissolution, termination of existence, business
failure, insolvency, appointment of a receiver for any property, assignment for
the benefit of creditors, filing of a petition in bankruptcy or commencement of
any proceeding under any bankruptcy, insolvency or similar laws relating to the
relief of debtors; (vi) the Account Debtor does not meet credit standards
reasonably acceptable to Bank; (vii) the Account Debtor's obligations exceed the
maximum established by Bank for the Account Debtor; (viii) with respect to
advertising design services, payment is due for progress xxxxxxxx, precompletion
xxxxxxxx, deposits and other sums invoiced in anticipation of completion of the
services; (ix) with respect to advertising space rentals, any rent in excess of
thirty (30) days advance rent; (x) payment is due for service or late charges;
(xi) unless approved by Bank in writing, payment is contingent on any condition
whatsoever; (xii) the Account Debtor's obligations arise out of sales or other
transactions to or with Borrower or any of its Affiliates, or any owner, manager
or employee of Borrower or any of its Affiliates; (xiii) collection is not
enforceable by judicial proceedings within the United States of America or
Canada; (xiv) payment is due from the United States or Canadian government or
any agency thereof; or (xv) Bank, in its reasonable discretion, deems
unacceptable. Bank shall have reasonable discretion as to whether any account
is or remains an Eligible Account.
1.16. "Environmental Laws" means all local, state and federal
laws, rules, regulations and ordinances pertaining to human health or the
environment, including, without limitation, the federal statutes commonly known
as CERCLA and RCRA and any other federal or state environmental cleanup statutes
now or at any time hereafter in effect.
1.17. "Event of Default" means an event described in
Paragraph 16.1.
1.18. "Financial Statements" means any balance sheet or income
statement which has been furnished to Bank prior to the full execution of this
Agreement by Borrower and the balance sheets and statements of income, retained
earnings and changes in financial position that are furnished to Bank pursuant
to this Agreement.
1.19. "GAAP" means generally accepted accounting principles
consistently applied.
1.20. "Hazardous Substances" means any materials that, because
of their quantity, concentration or physical, chemical or infectious
characteristics, may cause or pose a present or potential hazard to human health
or the environment, and specifically includes, but is not limited to, any and
all hazardous, toxic or infectious substances, materials or wastes as defined or
listed under any Environmental Laws.
Page 4-RESTATED AND AMENDED LOAN AGREEMENT
1.21. "Laws" means all ordinances, statutes, rules,
regulations, orders, injunctions, writs or decrees of any government or
political subdivision or agency thereof, or any court or similar entity
established by any thereof.
1.22. "Letters of Credit" means those standby letters of
credit issued for Borrower's account in accordance with Paragraph 2.2.
1.23. "LIBOR Borrowing Rate" means the LIBOR Rate plus two
percent (2%). The LIBOR Borrowing Rate for each LIBOR Borrowing Rate Amount
shall be determined pursuant to Paragraph 9., as of the beginning of the
applicable LIBOR Interest Period, based on the then current LIBOR Rate, and,
except as otherwise provided in this Agreement, shall remain fixed during that
LIBOR Interest Period.
1.24. "LIBOR Borrowing Rate Amount(s)" means those portions of
a Principal Balance that, at any time, are accruing interest at a LIBOR
Borrowing Rate.
1.25. "LIBOR Interest Period" means, as to any LIBOR Borrowing
Rate Amount, a period of one, two, three or six months commencing on the date
the LIBOR Borrowing Rate becomes applicable; provided, however, that (1) the
first day of such LIBOR Interest Period must be a Business Day; (2) no LIBOR
Interest Period shall be selected which would extend beyond Maturity of the
Loan; (3) no LIBOR Interest Period shall extend beyond the date of any principal
payment required under the subject Loan, unless the sum of the following amounts
for that Loan equals or exceeds the amount of such principal payment: (i) the
Prime Borrowing Rate Amount for that Loan, plus (ii) LIBOR Borrowing Rate
Amounts for that Loan with LIBOR Interest Periods ending on or before the
scheduled date of that principal payment, plus (iii) if that Loan is a revolving
line of credit, principal amounts remaining unborrowed under that line of
credit; (4) any LIBOR Interest Period which would otherwise expire on a day
which is not a Business Day, shall be extended to the next succeeding Business
Day, unless the results of such extension would be to extend such LIBOR Interest
Period into another calendar month, in which event the LIBOR Interest Period
shall end on the immediately preceding Business Day; and (5) any LIBOR Interest
Period that begins on the last Business Day of a calendar month (or a day for
which there is no numerically corresponding day in the calendar month at the end
of such LIBOR Interest Period) shall end on the last Business Day of a calendar
month.
1.26. "LIBOR Rate" means, for any LIBOR Interest Period, the
rate per annum (computed on the basis of a 360 day year and the actual number of
days elapsed and rounded upward to the nearest 1/16 of 1%) established by Bank
as its LIBOR Rate, based on Bank's determination, on the basis of such factors
as Bank deems relevant, of the rate of interest at which U.S. dollar deposits
would be offered to Bank in the London interbank market at approximately 11:00
a.m. London time on the date which is two (2) Business Days prior to the first
day of such LIBOR Interest Period for delivery on the first day of such LIBOR
interest period for the number of months therein; provided, however, that Bank's
LIBOR Rate shall be adjusted to take into account the maximum reserves required
to be maintained for Eurocurrency liabilities by banks during each such LIBOR
Interest Period as specified in Regulation D of the Board of Governors
Page 5-RESTATED AND AMENDED LOAN AGREEMENT
of the Federal Reserve System or any successor regulation, and the maximum
assessment rate required to be paid by Bank to the Federal Deposit Insurance
Corporation insuring U.S. dollar deposits made at offices of Bank.
1.27. "Loan" means one or more of the 1998/1999 Construction
Loan, the Bridge Loan, the MO Partners Loan, the Revolving Loan, Term Loan A and
Term Loan B.
1.28. "Loan Documents" means the Original Loan Agreement,
this Agreement, each Note, each Collateral Document and all other documents and
instruments executed by Borrower in connection herewith.
1.29. "Maturity" means the time when the entire unpaid
Principal Balance of a Loan becomes due and payable, whether by agreement,
acceleration, demand or otherwise.
1.30. "MO Partners Loan" means the Loan defined as the MO
Partners Loan in the Original Loan Agreement and the Loan described in
Paragraph 6. of this Agreement.
1.31. "MO Partners Note" means any promissory note evidencing
the MO Partners Loan, any promissory note substituted for one or more of them,
and any document evidencing a renewal, extension or modification of one or more
of them.
1.32. "Note" means one or more of the 1998/1999 Construction
Note, the Bridge Note, the MO Partners Note, the Revolving Note, Term Note A and
Term Note B.
1.33. "Person" means any individual, corporation, partnership,
limited liability company, association, joint stock company, trust,
unincorporated organization, joint venture, court or government or political
subdivision or agency thereof.
1.34. "Prime Rate" means the rate identified and publicly
announced by Bank from time to time as its prime rate and does not necessarily
mean, for example, the lowest rate of interest which Bank collects for any
borrower or group of borrowers.
1.35. "Prime Borrowing Rate Amount" means that portion of a
Principal Balance that, at any time, is accruing interest at a variable interest
rate that is tied to the Prime Rate.
1.36. "Principal Balance" means, at any time, the unpaid
principal balance of a Loan.
1.37. "Records" means correspondence, memoranda, tapes, disks,
papers, books and other documents or transcribed information of any type,
whether expressed in ordinary or machine readable language.
Page 6-RESTATED AND AMENDED LOAN AGREEMENT
1.38. "Review Date" means the date on which Bank reviews the
basis for a Loan, and does not reflect any commitment by Bank to make Advances
under the Loan during any period either before or following that date.
1.39. "Revolving Loan" means the Loan defined as the Revolving
Loan in the Original Loan Agreement and the Loan described in Paragraph 2. of
this Agreement.
1.40. "Revolving Loan Dollar Limit" means Four Million Dollars
($4,000,000), subject to reduction pursuant to Paragraph 2.2.
1.41. "Revolving Note" means any promissory note evidencing
the Revolving Loan, any promissory note substituted for one or more of them, and
any document evidencing a renewal, extension or modification of one or more of
them.
1.42. "Secondary Offering" means a secondary offering by Xxxx
of shares of its common stock for sale to the public for the purpose of raising
the money required to pay the Bridge Loan in full.
1.43. "Stock Purchase Agreement" means the Stock Purchase
Agreement dated August ____, 1998 among Xxxx, Xxxxx X. Xxxxx and P&C.
1.44. "Term Loan A" means the Loan defined as Term Loan A in
the Original Loan Agreement and the Loan described in Paragraph 3. of this
Agreement.
1.45. "Term Note A" means any promissory note evidencing Term
Loan A, any promissory note substituted for one or more of them, and any
document evidencing a renewal, extension or modification of one or more of them.
1.46. "Term Loan B" means the Loan described in Paragraph 8.
1.47. "Term Note B" means any promissory note evidencing Term
Loan B, any promissory note substituted for one or more of them, and any
document evidencing a renewal, extension or modification of one or more of them.
2. THE REVOLVING LOAN.
2.1. MAXIMUM AMOUNT. Subject to the terms and conditions of
this Agreement, Bank, at its option, may make Advances to Borrower from time to
time on a revolving credit basis in an aggregate principal amount not to exceed
at any one time outstanding an amount equal to the lesser of (i) the Revolving
Loan Dollar Limit; and (ii) the Borrowing Base then in effect.
2.2. LETTERS OF CREDIT. Subject to the terms and conditions
of this Agreement, as part of the Revolving Loan, Bank, at its option, may issue
Letters of Credit for
Page 7-RESTATED AND AMENDED LOAN AGREEMENT
Borrower's account from time to time; provided that the aggregate undrawn face
amount of all such Letters of Credit shall at no time exceed Two Million Seven
Hundred Fifty Thousand Dollars ($2,750,000). At all times, the aggregate face
amount of all outstanding Letters of Credit shall reduce the Revolving Loan
Dollar Limit, dollar for dollar. Prior to or in the absence of a Secondary
Offering (including during the term of Term Loan B), all outstanding Letters of
Credit shall reduce the Borrowing Base dollar for dollar, to the extent the
aggregate face amount of those Letters of Credit exceeds One Million Dollars
($1,000,000). However, after completion of the Secondary Offering, the
aggregate face amount of all outstanding Letters of Credit shall reduce the
Borrowing Base, dollar for dollar. At the time of issuance of each Letter of
Credit, Borrower shall pay Bank a fee equal to one and one-half percent (1.5%)
per annum of the face amount of the Letter of Credit, prorated for the term of
the Letter of Credit; provided that for "evergreen" Letters of Credit, Borrower
shall pay an initial fee based on the assumption that Bank will exercise its
first option to terminate that Letter of Credit, and Borrower shall pay an
additional fee each time Bank does not exercise an option to terminate, with
that additional fee prorated to Bank's next option to terminate. Prior to the
issuance of any Letter of Credit, Borrower will, at Bank's request, execute and
deliver to Bank its standard letter of credit agreement. Any payment made by
Bank to any Person on account of any Letter of Credit shall constitute an
Advance under the Revolving Loan.
2.3. REQUESTS FOR ADVANCES. Whenever Borrower desires to
request an Advance, including a Letter of Credit, Borrower shall give Bank
notice thereof in accordance with the Revolving Note.
2.4. REPRESENTATION AND WARRANTY OF CREDIT AVAILABILITY.
Each request by Borrower for an Advance shall be deemed to be Borrower's
representation and warranty that (i) the Advance may be made without exceeding
the Borrowing Base then in effect, and (ii) no Event of Default, or event which,
with notice or lapse of time, or both, would be an Event of Default, has
occurred or will occur as a result of making the Advance.
2.5. REVOLVING NOTE. The Revolving Loan shall be subject to
all of the terms and conditions of the Revolving Note and this Agreement.
2.6. INTEREST RATE AND PAYMENT OF INTEREST.
a. INTEREST RATE. Prior to an Event of Default,
Borrower shall pay interest on the Principal Balance of the Revolving Loan at a
variable interest rate equal to the Prime Rate. After an Event of Default, the
Principal Balance of the Revolving Loan shall bear interest at a variable
interest rate equal to the Prime Rate plus five percent (5%). The interest rate
shall be adjusted without notice effective on each day the Prime Rate changes.
b. PAYMENT OF INTEREST. Borrower shall pay accrued
interest on the fifteenth (15th) day of September, 1998, and on the fifteenth
(15th) day of every calendar month thereafter prior to Maturity, and at
Maturity.
Page 8-RESTATED AND AMENDED LOAN AGREEMENT
c. COMPUTATION OF INTEREST. All interest will be
computed at the applicable rate based on a three hundred sixty (360) day year
and applied to the actual number of days elapsed.
2.7. PAYMENT OF PRINCIPAL. The Principal Balance of the
Revolving Loan shall be due and payable on demand.
2.8. REVIEW DATE. The Review Date for the Revolving Loan is
April 30 of each calendar year.
2.9. FEES. Borrower shall pay Bank the following fees in
connection with the Revolving Loan:
a. INCREASE FEE. Contemporaneously with the
execution of this Agreement, Borrower shall pay Bank a fee for increasing the
maximum amount of the Revolving Loan in the amount of One Thousand Six Hundred
Sixty-Seven Dollars ($1,667).
b. ANNUAL FEE. Borrower shall also pay Bank an
annual loan fee for the Revolving Loan in the amount of Five Thousand Dollars
($5,000) on each Review Date, commencing April 30, 1999.
3. TERM LOAN A.
3.1. AMOUNT. The Principal Balance of Term Loan A on the
date of this Agreement is Five Million Seven Hundred Sixty Thousand Dollars
($5,760,000).
3.2. TERM NOTE A. Term Loan A shall be subject to all of the
terms and conditions of Term Note A and this Agreement.
3.3. PRIME AND/OR LIBOR BORROWING RATES. Borrower has
elected to have Term Loan A bear interest at Prime and/or LIBOR Borrowing Rates.
a. LIBOR BORROWING RATE. Borrower may elect from
time to time to have portions of the Principal Balance of Term Loan A accrue
interest at a LIBOR Borrowing Rate on the terms and conditions of Paragraph 9.
b. PRIME BORROWING RATE. Except for portions of
the Principal Balance of Term Loan A that are accruing interest at a LIBOR
Borrowing Rate, Borrower shall pay interest on the Principal Balance of Term
Loan A at a variable interest rate equal to the Prime Rate plus one-half of one
percent (0.5%). The interest rate shall be adjusted without notice effective on
each day the Prime Rate changes.
c. DEFAULT INTEREST RATE. Notwithstanding anything
in this Agreement to the contrary, upon the occurrence of an Event of Default,
the Prime Borrowing Rate
Page 9-RESTATED AND AMENDED LOAN AGREEMENT
Amount of Term Loan A shall thereafter accrue interest at a variable interest
rate equal to the Prime Rate plus five and one-half percent (5.5%), and each
outstanding LIBOR Borrowing Rate Amount shall accrue interest at a LIBOR
Borrowing Rate equal to the LIBOR Rate previously determined by Bank for the
LIBOR Borrowing Rate Amount plus seven percent (7%).
d. PAYMENT OF INTEREST. Borrower shall pay accrued
interest on the fifteenth (15th) day of September, 1998, and on the fifteenth
(15th) day of every calendar month thereafter prior to Maturity, and at
Maturity. In addition, with respect to all LIBOR Borrowing Rate Amounts,
accrued interest shall be paid on the last day of the applicable LIBOR Interest
Period.
e. PAYMENT OF PRINCIPAL. The remaining Principal
Balance of Term Loan A shall be paid in sixty-four (64) monthly installments.
The first such monthly installment shall be due and payable on September 15,
1998, and an additional monthly installment shall be due and payable on the
fifteenth (15th) day of each calendar month thereafter, to and including
December 15, 2003, when the unpaid balance of Term Loan A, principal and
interest, shall be paid in full. The first four (4) monthly installments shall
be in the amount of Sixty-five Thousand Dollars ($65,000) each. The next
fifty-nine (59) monthly installments shall be in the amount of Ninety-one
Thousand Six Hundred Sixty-seven Dollars ($91,667) each. The final monthly
installment shall be in the amount of Ninety-one Thousand Six Hundred
Forty-seven Dollars ($91,647).
f. PREPAYMENT. Subject to Paragraph 3.5,
prepayment may be made in whole or in part at any time. All prepayments shall
be applied first to the Prime Borrowing Rate Amount and then to any LIBOR
Borrowing Rate Amounts (in such order as Bank may determine in Bank's absolute
discretion), and then to accrued interest. Prepayments of principal shall be
applied to the remaining installments of principal in the order of their
maturity.
3.4. COMPUTATION OF INTEREST. All interest will be computed
at the applicable rate based on a three hundred sixty (360) day year and applied
to the actual number of days elapsed.
3.5. PREPAYMENT PREMIUM. Upon payment of all or any portion
of Term Loan A on a date other than the regularly scheduled due date for
payment, including, without limitation, voluntary prepayment or repayment upon
acceleration following an Event of Default, Borrower shall pay to Bank on
demand, with respect to all LIBOR Borrowing Rate Amounts, a yield maintenance
charge calculated in accordance with the attached Exhibit A.
3.6. REVOLVING TERM LOAN.
a. MAXIMUM AMOUNT. Term Loan A is a reducing,
revolving term loan. At any time, the maximum Principal Balance of Term Loan A
shall equal the Principal Balance that would then exist if all payments had been
made precisely when due.
Page 10-RESTATED AND AMENDED LOAN AGREEMENT
b. FUTURE ADVANCES. If Borrower prepays all or any
portion of Term Loan A, then Borrower may request future Advances under Term
Loan A. Whenever Borrower desires to request an Advance, Borrower shall give
Bank notice thereof in accordance with Term Note A. Following the Advance, the
Principal Balance of Term Loan A shall not exceed the maximum Principal Balance
of Term Loan A.
c. REPRESENTATION AND WARRANTY. Each request by
Borrower for an Advance shall be deemed to be Borrower's representation and
warranty that no Event of Default, or event which, with notice or lapse of time,
or both, would be an Event of Default, has occurred or will occur as a result of
making the Advance.
d. PAYMENTS OF PRINCIPAL. To the extent Borrower's
obligation to pay monthly installments of principal has been discharged as a
result of prepayments pursuant to paragraph 3.3.f., future Advances under Term
Loan A shall reinstate the obligation to pay those installments in the inverse
order of their maturity. Accordingly, Borrower's obligation to pay monthly
installments of principal shall not recommence until such time as those monthly
installments must recommence in order for Borrower to pay Term Loan A in full
not later than December 15, 2003, assuming all payments are made precisely when
due.
4. 1998/1999 CONSTRUCTION LOAN.
4.1. MAXIMUM AMOUNT. Subject to the terms and conditions of
this Agreement, Bank, at its option, may make Advances to Borrower from time to
time through April 30, 1999, in an aggregate principal amount not to exceed
Three Hundred Two Thousand Dollars ($302,000).
4.2. REQUESTS FOR ADVANCES. Whenever Borrower desires to
request an Advance, Borrower shall give Bank notice thereof in accordance with
the 1998/1999 Construction Note.
4.3. CONDITIONS OF ADVANCES. Borrower's right to request
each Advance is subject to the following conditions, which are for the benefit
of Bank and may be waived in whole or in part by Bank:
a. The proceeds of the Advance shall be used solely
for payment of the purchase price of a preexisting Billboard (including its
associated Billboard Site Lease), or for payment of the cost of constructing a
new Billboard.
b. The amount of each Advance shall not exceed
seventy-five percent (75%) of the lower of cost or market of a pre-existing
Billboard or seventy-five percent (75%) of the cost of constructing a new
Billboard, whichever is applicable, as determined by Bank in its reasonable
discretion.
Page 11-RESTATED AND AMENDED LOAN AGREEMENT
c. Borrower shall permit Bank to inspect the
Billboard site and shall deliver to Bank any information relating to the
Billboard that Bank may request, including, without limitation, the associated
Billboard Site Lease and any information relating to the purchase or
construction of the Billboard, as applicable.
d. The terms of any purchase or construction
contract, the terms of the associated Billboard Site Lease, and the adequacy of
the Billboard and the associated Billboard Site Lease as Collateral for the
Advance shall be acceptable to Bank, in Bank's absolute discretion.
Specifically, but without limitation, the associated Billboard Site Lease shall
include provisions substantially equivalent to those set forth in
Paragraph 13.9.
e. Borrower shall deliver to Bank such Collateral
Documents as Bank may require, in form satisfactory to Bank, for the purpose of
encumbering the Billboard and associated Billboard Site Lease with a first
priority security interest in favor of Bank, and securing the Advance and all
other obligations under the Loan Documents.
f. Borrower shall deliver to Bank any other
documents that Bank may request.
g. At the time of each Advance, Borrower shall pay
to Bank a loan fee in the amount of three-quarters of one percent (0.75%) of the
principal amount of that Advance.
h. No Advance shall be made after conversion of the
1998/1999 Construction Loan to a term loan pursuant to Paragraph 5.
4.4. REPRESENTATION AND WARRANTY. Each request by Borrower
for an Advance shall be deemed to be Borrower's representation and warranty that
no Event of Default, or event which, with notice or lapse of time, or both,
would be an Event of Default, has occurred or will occur as a result of making
the Advance.
4.5. CONSTRUCTION NOTE. The 1998/1999 Construction Loan
shall be subject to all of the terms and conditions of the 1998/1999
Construction Note and this Agreement.
4.6. INTEREST RATE AND PAYMENT OF INTEREST.
a. INTEREST RATE. Prior to an Event of Default,
Borrower shall pay interest on the Principal Balance of the 1998/1999
Construction Loan at a variable interest rate equal to the Prime Rate plus
one-half of one percent (0.5%). After an Event of Default, the Principal
Balance of the 1998/1999 Construction Loan shall bear interest at a variable
interest rate equal to the Prime Rate plus five and one-half percent (5.5%).
The interest rate shall be adjusted without notice effective on each day the
Prime Rate changes.
Page 12-RESTATED AND AMENDED LOAN AGREEMENT
b. PAYMENT OF INTEREST. Borrower shall pay accrued
interest on the fifteenth (15th) day of September, 1998, and on the fifteenth
(15th) day of every calendar month thereafter prior to Maturity, and at
Maturity.
c. COMPUTATION OF INTEREST. All interest will be
computed at the applicable rate based on a three hundred sixty (360) day year
and applied to the actual number of days elapsed.
4.7. PAYMENT OF PRINCIPAL. Subject to Paragraph 5., the
Principal Balance of the 1998/1999 Construction Loan shall be due and payable on
demand.
4.8. PREPAYMENT. Prepayment may be made in whole or in part
at any time. All prepayments shall be applied first to the Principal Balance
and then to accrued interest.
4.9. FEE. Upon closing of the 1998/1999 Construction Loan,
Borrower paid Bank a commitment fee for the 1998/1999 Construction Loan in the
amount of Seven Hundred Fifty-five Dollars ($755).
5. CONVERSION TO TERM LOAN. On the earlier of (a) the date that
the aggregate amount of Advances under the 1998/1999 Construction Loan equals
Three Hundred Two Thousand Dollars ($302,000), (b) Borrower's request or (c)
April 30, 1999, the 1998/1999 Construction Loan shall be converted to a term
loan upon the following terms and conditions:
5.1. NO DEFAULT. At the time of conversion, no Event of
Default shall have occurred or be continuing, and no event shall have occurred
or be continuing which, with notice or lapse of time, or both, would be an Event
of Default.
5.2. NEW CONSTRUCTION NOTE. At the time of conversion,
Borrower shall execute and deliver to Bank a new 1998/1999 Construction Note, in
a principal amount equal to the Principal Balance of the 1998/1999 Construction
Loan at the time of conversion, and in a form satisfactory to Bank. The
1998/1999 Construction Loan shall be subject to all of the terms of the
1998/1999 Construction Note and this Agreement.
5.3. INTEREST RATE ELECTION. At the time of conversion,
Borrower may elect to have the 1998/1999 Construction Loan bear interest at a
fixed rate pursuant to Paragraph 5.4., or at Prime and/or LIBOR Borrowing Rates
pursuant to Paragraph 5.5. Borrower may not alter Borrower's election after the
date of conversion.
5.4. FIXED RATE. If Borrower elects to have the 1998/1999
Construction Loan bear interest at a fixed rate, then:
a. INITIAL FIXED RATE. During the first
five (5) years of the term following conversion, the Principal Balance of the
1998/1999 Construction Loan shall bear interest at a fixed rate of two and
one-half percent (2.5%) above the most currently weekly rate for Five-
Page 13-RESTATED AND AMENDED LOAN AGREEMENT
Year Treasury Constant Maturities (as reported in Federal Reserve Statistical
Release H.15 or any successor publication reasonably selected by Bank),
calculated as of the date of conversion (the Initial Fixed Rate).
b. ADJUSTED FIXED RATE. On the due date of the
sixtieth (60th) monthly installment following conversion, the interest rate
shall be adjusted to a fixed rate of two and one-half percent (2.5%) above the
most currently weekly rate for Two-Year Treasury Constant Maturities (as
reported in Federal Reserve Statistical Release H.15 or any successor
publication reasonably selected by Bank), calculated as of the date of the
adjustment (the Adjusted Fixed Rate).
c. DEFAULT INTEREST RATE. Notwithstanding anything
in this Agreement to the contrary, upon the occurrence of an Event of Default,
the Principal Balance of the 1998/1999 Construction Loan shall thereafter accrue
interest at a fixed rate equal to the rate in effect immediately prior to the
Event of Default plus five percent (5%).
d. PAYMENT OF PRINCIPAL AND INTEREST. Following
conversion, the 1998/1999 Construction Loan shall be due and payable in
eighty-four (84) monthly installments of principal and interest; provided that
the unpaid balance of principal and interest shall be paid in full not later
than seven (7) years after the date of conversion. The first monthly
installment shall be due and payable on the fifteenth (15th) day of the first
calendar month following the conversion, and an additional monthly installment
shall be due and payable on the fifteenth (15th) day of every calendar month
thereafter. The first sixty (60) monthly installments shall be in the amount
necessary to amortize the Principal Balance of the 1998/1999 Construction Loan
upon conversion, together with interest at the Initial Fixed Rate, over a term
of eighty-four (84) months. The final twenty-four (24) monthly installments
shall be in the amount necessary to amortize the greater of (i) the Principal
Balance of the 1998/1999 Construction Loan immediately following the sixtieth
(60th) monthly installment or (ii) the Principal Balance of the 1998/1999
Construction Loan that would exist immediately following the sixtieth (60th)
monthly installment if all payments were made precisely when due, together with
interest at the Adjusted Fixed Rate, over a term of twenty-four (24) months.
e. PREPAYMENT. Subject to Paragraph 5.7.a.,
prepayment may be made in whole or in part at any time. All prepayments shall
be applied first to accrued interest and then to the Principal Balance.
Prepayments shall not affect the regularity or amount of the monthly
installments coming due thereafter.
5.5. PRIME AND/OR LIBOR BORROWING RATES. If Borrower elects
to have the 1998/1999 Construction Loan bear interest at Prime and/or LIBOR
Borrowing Rates, then:
a. LIBOR BORROWING RATE. Borrower may elect from
time to time to have portions of the Principal Balance of the 1998/1999
Construction Loan accrue interest at a LIBOR Borrowing Rate on the terms and
conditions of Paragraph 9.
Page 14-RESTATED AND AMENDED LOAN AGREEMENT
b. PRIME BORROWING RATE. Except for portions of
the Principal Balance of the 1998/1999 Construction Loan that are accruing
interest at a LIBOR Borrowing Rate, Borrower shall pay interest on the Principal
Balance of the 1998/1999 Construction Loan at a variable interest rate equal to
the Prime Rate plus one-half of one percent (0.5%). The interest rate shall be
adjusted without notice effective on each day the Prime Rate changes.
c. DEFAULT INTEREST RATE. Notwithstanding anything
in this Agreement to the contrary, upon the occurrence of an Event of Default,
the Prime Borrowing Rate Amount of the 1998/1999 Construction Loan shall
thereafter accrue interest at a variable interest rate equal to the Prime Rate
plus five and one-half percent (5.5%), and each outstanding LIBOR Borrowing Rate
Amount shall accrue interest at a LIBOR Borrowing Rate equal to the LIBOR Rate
previously determined by Bank for the LIBOR Borrowing Rate Amount plus seven
percent (7%).
d. PAYMENT OF INTEREST. Borrower shall pay accrued
interest on the fifteen (15th) day of the first calendar month following
conversion, and on the fifteenth (15th) day of every calendar month thereafter
prior to Maturity, and at Maturity. In addition, with respect to all LIBOR
Borrowing Rate Amounts, accrued interest shall be paid on the last day of the
applicable LIBOR Interest Period.
e. PAYMENT OF PRINCIPAL. Following conversion, the
Principal Balance of the 1998/1999 Construction Loan shall be paid in
eighty-four (84) equal monthly installments of one eighty-fourth (1/84th) of the
Principal Balance of the 1998/1999 Construction Loan upon conversion; provided
that the unpaid balance of principal and interest shall be paid in full not
later than seven (7) years after the date of conversion. The first monthly
installment shall be due and payable on the fifteenth (15th) day of the first
calendar month following conversion, and an additional monthly installment shall
be due and payable on the 15th day of every calendar month thereafter.
f. PREPAYMENT. Subject to Paragraph 5.7.b.,
prepayment may be made in whole or in part at any time. All prepayments shall
be applied first to the Prime Borrowing Rate Amount and then to any LIBOR
Borrowing Rate Amounts (in such order as Bank may determine in Bank's absolute
discretion), and then to accrued interest. Prepayments of principal shall be
applied to the remaining installments of principal in the inverse order of their
maturity.
5.6. COMPUTATION OF INTEREST. All interest will be computed
at the applicable rate based on a three hundred sixty (360) day year and applied
to the actual number of days elapsed.
5.7. PREPAYMENT PREMIUM. Upon payment of all or any portion
of the 1998/1999 Construction Loan on a date other than the regularly scheduled
due date for payment, including, without limitation, voluntary prepayment or
repayment upon acceleration following an Event of Default, Borrower shall pay to
Bank upon demand:
Page 15-RESTATED AND AMENDED LOAN AGREEMENT
a. If the 1998/1999 Construction Loan is bearing
interest at a fixed rate, a yield maintenance charge calculated in accordance
with Exhibit B.
b. If the 1998/1999 Construction Loan is bearing
interest at Prime and/or LIBOR Borrowing Rates, then with respect to all LIBOR
Borrowing Rate Amounts, a yield maintenance charge calculated in accordance with
Exhibit A.
6. MO PARTNERS LOAN.
6.1. AMOUNT. Bank has made a Loan to Xxxx in the principal
amount of Six Hundred Ninety-Eight Thousand Dollars ($698,000), to be used to
pay up to one hundred percent (100%) of the purchase price of certain Billboards
(and their associated Billboard Site Leases) that Xxxx has acquired from MO
Partners, a related Oregon general partnership. The Principal Balance of the MO
Partners Loan on the date of this Agreement is Six Hundred Eighty-Nine Thousand
Six Hundred Ninety Dollars Forty-Eight Cents ($689,690.48).
6.2. MO PARTNERS NOTE. The MO Partners Loan shall be subject
to all of the terms and conditions of the MO Partners Note and this Agreement.
6.3. INTEREST RATE AND PAYMENT OF INTEREST.
a. LIBOR BORROWING RATE. Borrower may elect from
time to time to have portions of the Principal Balance of the MO Partners Loan
accrue interest at a LIBOR Borrowing Rate on the terms and conditions of
Paragraph 9.
b. PRIME BORROWING RATE. Except for portions of
the Principal Balance of the MO Partners Loan that are accruing interest at a
LIBOR Borrowing Rate, Borrower shall pay interest on the Principal Balance of
the MO Partners Loan at a variable interest rate equal to the Prime Rate plus
one-half of one percent (0.5%). The interest rate shall be adjusted without
notice effective on each day the Prime Rate changes.
c. DEFAULT INTEREST RATE. Notwithstanding anything
in this Agreement to the contrary, upon the occurrence of an Event of Default,
the Prime Borrowing Rate Amount of the MO Partners Loan shall thereafter accrue
interest at a variable interest rate equal to the Prime Rate plus five and
one-half percent (5.5%), and each outstanding LIBOR Borrowing Rate Amount shall
accrue interest at a LIBOR Borrowing Rate equal to the LIBOR Rate previously
determined by Bank for the LIBOR Borrowing Rate Amount plus seven percent (7%).
d. PAYMENT OF INTEREST. Borrower shall pay accrued
interest on the fifteenth (15th) day of September, 1998, and on the fifteenth
(15th) day of every calendar month thereafter prior to Maturity, and at
Maturity. In addition, with respect to all LIBOR Borrowing Rate Amounts,
accrued interest shall be paid on the last day of the applicable LIBOR Interest
Period.
Page 16-RESTATED AND AMENDED LOAN AGREEMENT
e. PAYMENT OF PRINCIPAL. The remaining Principal
Balance of the MO Partners Loan shall be paid in eighty-three (83) monthly
installments. The first monthly installment shall be due and payable on the
fifteenth (15th) day of September, 1998, and an additional monthly installment
shall be due and payable on the fifteenth (15th) day of every calendar month
thereafter, to and including July 15, 2005, when the unpaid balance of the MO
Partners Loan, principal and interest, shall be paid in full. The first
eighty-two (82) monthly installments shall be in the amount of Eight Thousand
Three Hundred Nine Dollars Fifty-Two Cents ($8,309.52) each. The final monthly
installment shall be in the amount of Eight Thousand Three Hundred Nine Dollars
Eighty-Four Cents ($8,309.84).
f. PREPAYMENT. Subject to Paragraph 6.5.,
prepayment may be made in whole or in part at any time. All prepayments shall
be applied first to the Prime Borrowing Rate Amount and then to any LIBOR
Borrowing Rate Amounts (in such order as Bank may determine in Bank's absolute
discretion), and then to accrued interest. Prepayments of principal shall be
applied to the remaining installments of principal in the inverse order of their
maturity.
6.4. COMPUTATION OF INTEREST. All interest will be computed
at the applicable rate based on a three-hundred sixty (360) day year and applied
to the actual number of days elapsed.
6.5. PREPAYMENT PREMIUM. Upon payment of all or any portion
of the MO Partners Loan on a date other than the regularly scheduled due date
for payment, including, without limitation, voluntary prepayment or repayment
upon acceleration following an Event of Default, Borrower shall pay to Bank upon
demand, with respect to all LIBOR Borrowing Rate Amounts, a yield maintenance
charge calculated in accordance with Exhibit A.
6.6. FEE. Upon closing of the MO Partners Loan, Borrower
paid to Bank a loan fee in the amount of one percent (1%) of the principal
amount of the MO Partners Loan.
7. BRIDGE LOAN.
7.1. MAXIMUM AMOUNT. Subject to the terms and conditions of
this Agreement, Bank, at its option, may make Advances to Borrower from time to
time through October 31, 1998, in an aggregate principal amount not to exceed
Seven Million Dollars ($7,000,000).
7.2. REQUESTS FOR ADVANCES. Whenever Borrower desires to
request an Advance, Borrower shall give Bank notice thereof in accordance with
the Bridge Note.
7.3. CONDITIONS OF ADVANCES. Borrower's right to request
each Advance is subject to the following conditions, which are for the benefit
of Bank and may be waived in whole or part by Bank:
Page 17-RESTATED AND AMENDED LOAN AGREEMENT
a. The proceeds of the initial Advance may be used
solely to pay the purchase price for P&C, pursuant to the Stock Purchase
Agreement, up to a maximum of Six Million Dollars ($6,000,000).
b. Remaining Advances may be used by Borrower for
working capital.
7.4. REPRESENTATION AND WARRANTY. Each request by Borrower
for an Advance shall be deemed to be Borrower's representation and warranty that
no Event of Default, or event which, with notice or lapse of time, or both,
would be an Event of Default, has occurred or will occur as a result of making
the Advance.
7.5. BRIDGE NOTE. The Bridge Loan shall be subject to all of
the terms and conditions of the Bridge Note and this Agreement.
7.6. PRIME AND/OR LIBOR BORROWING RATES.
a. LIBOR BORROWING RATE. Borrower may elect from
time to time to have portions of the Principal Balance of the Bridge Loan accrue
interest at a LIBOR Borrowing Rate on the terms and conditions of Paragraph 9.
b. PRIME BORROWING RATE. Except for portions of
the Principal Balance of the Bridge Loan that are accruing interest at a LIBOR
Borrowing Rate, Borrower shall pay interest on the Principal Balance of the
Bridge Loan at a variable interest rate equal to the Prime Rate plus one-half of
one percent (0.5%). The interest rate shall be adjusted without notice
effective on each day the Prime Rate changes.
c. DEFAULT INTEREST RATE. Notwithstanding anything
in this Agreement to the contrary, upon the occurrence of an Event of Default,
the Prime Borrowing Rate Amount of the Bridge Loan shall thereafter accrue
interest at a variable interest rate equal to the Prime Rate plus five and
one-half percent (5.5%), and each outstanding LIBOR Borrowing Rate Amount shall
accrue interest at a LIBOR Borrowing Rate equal to the LIBOR Rate previously
determined by Bank for the LIBOR Borrowing Rate Amount plus seven percent (7%).
d. PAYMENT OF INTEREST. Borrower shall pay accrued
interest on the fifteenth (15th) day of the first calendar month following the
closing of the Bridge Loan and on the fifteenth (15th) day of every calendar
month thereafter prior to Maturity, and at Maturity. In addition, with respect
to all LIBOR Borrowing Rate Amounts, accrued interest shall be paid on the last
day of the applicable LIBOR Interest Period.
e. COMPUTATION OF INTEREST. All interest will be
computed at the applicable rate based on a three hundred sixty (360) day year
and applied to the actual number of days lapsed.
Page 18-RESTATED AND AMENDED LOAN AGREEMENT
7.7. PAYMENT OF PRINCIPAL. The Principal Balance of the
Bridge Loan shall be due and payable on demand, or if no demand, upon closing of
the Secondary Offering or August 31, 1999, whichever is earlier.
7.8. PREPAYMENT. Subject to Paragraph 7.9, prepayment may be
made in whole or in part at any time. All prepayments shall be applied first to
the Prime Borrowing Rate Amount and then to any LIBOR Borrowing Rate Amounts (in
such order as Bank may determine in Bank's absolute discretion), and then to
accrued interest.
7.9. PREPAYMENT PREMIUM. Upon payment of all or any portion
of the Bridge Loan on a date other than the regularly scheduled due date for
payment, including, without limitation, voluntary prepayment or repayment upon
acceleration following an Event of Default, Borrower shall pay to Bank on
demand, with respect to all LIBOR Borrowing Rate Amounts, a yield maintenance
charge calculated in accordance with Exhibit A.
7.10. FEE. Contemporaneously with the execution of this
Agreement, Borrower shall pay to Bank a fee for the Bridge Loan in the amount of
Thirty-Five Thousand Dollars ($35,000).
8. TERM LOAN B.
8.1. SECONDARY OFFERING. With respect to the Secondary
Offering, Borrower represents and warrants to Bank that:
a. Borrower currently intends, and will exercise
its best efforts, to pursue and complete a Secondary Offering by August 31,
1999.
b. Borrower's best estimate of the net proceeds
(after payment of all associated costs and expenses) that will be raised by
Borrower through the Secondary Offering is Thirteen Million Dollars
($13,000,000).
c. If Borrower completes the Secondary Offering by
August 31, 1999, Borrower shall apply all net proceeds of the Secondary Offering
to the Bridge Loan, until that Loan is paid in full.
8.2. MAXIMUM AMOUNT. If the Secondary Offering is not
completed by August 31, 1999 or if the net proceeds of the Secondary Offering is
insufficient to pay the Bridge Loan in full, then, subject to the terms and
conditions of this Agreement, Bank shall make Term Loan B to Borrower in a
principal amount specified by Borrower, subject to a maximum equal to the lesser
of (i) Seven Million Dollars ($7,000,000) or (ii) the unpaid balance of the
Bridge Loan, principal and interest, immediately following application of all
net proceeds of any Secondary Offering.
Page 19-RESTATED AND AMENDED LOAN AGREEMENT
8.3. SPECIAL CONDITIONS. Bank's obligation to close Term
Loan B is subject to the following special conditions, which are for the benefit
of Bank and may be waived in whole or in part by Bank:
a. Term Loan B shall be closed not later than
September 1, 1999.
b. The Bridge Loan shall be paid in full, principal
and interest, at closing.
c. All representations and warranties of Borrower
contained in this Agreement shall continue to be true and complete as of the
closing date.
d. As of the closing date, no Event of Default
shall have occurred or be continuing, and no event shall have occurred or be
continuing that, with notice or passage of time, or both, would be an Event of
Default.
e. No material adverse change shall have occurred
in Borrower's financial condition since the date of this Agreement.
8.4. TERM NOTE B. At closing, Borrower shall execute and
deliver to Bank Term Note B in the principal amount of Term Loan B, and in a
form satisfactory to Bank. Term Loan B shall be subject to all of the terms and
conditions of Term Note B and this Agreement.
8.5. INTEREST RATE ELECTION. At the time of closing of Term
Loan B, Borrower may elect to have Term Loan B bear interest at a fixed rate
pursuant to Paragraph 8.6., or at Prime and/or LIBOR Borrowing Rates pursuant to
Paragraph 8.7. Borrower may not alter Borrower's election after closing.
8.6. FIXED RATE. If Borrower elects to have Term Loan B bear
interest at a fixed rate, then:
a. INITIAL FIXED RATE. During the first five (5)
years of the term of Term Loan B, the Principal Balance of Term Loan B shall
bear interest at a fixed rate of two and one-half percent (2.5%) above the most
current weekly rate for Five-Year Treasury Constant Maturities (as reported in
Federal Reserve Statistical Release H.15 or any successor publication reasonably
selected by Bank), calculated as of closing date (the Initial Fixed Rate).
b. ADJUSTED FIXED RATE. On the due date of the
sixtieth (60th) monthly installment under Term Loan B, the interest rate shall
be adjusted to a fixed rate of two and one-half percent (2.5%) above the most
current weekly rate for Two-Year Treasury Constant Maturities (as reported in
Federal Reserve Statistical Release H.15 or any successor publication reasonably
selected by Bank), calculated as of the date of the adjustment (the Adjusted
Fixed Rate).
Page 20-RESTATED AND AMENDED LOAN AGREEMENT
c. DEFAULT INTEREST RATE. Notwithstanding anything
in this Agreement to the contrary, upon the occurrence of an Event of Default,
the Principal Balance of Term Loan B shall thereafter accrue interest at a fixed
rate equal to the rate in effect immediately prior to the Event of Default plus
five percent (5%).
d. PAYMENT OF PRINCIPAL AND INTEREST. Term Loan B
shall be due and payable in eighty-four (84) monthly installments of principal
and interest; provided that the unpaid balance of Term Loan B, principal and
interest, shall be paid in full not later than August 31, 2006. The first
monthly installment shall be due and payable on the fifteenth (15th) day of the
first calendar month following the closing of Term Loan B, and an additional
monthly installment shall be due and payable on the fifteenth (15th) day of each
calendar month thereafter. The first sixty (60) monthly installments shall be
in the amount necessary to amortize the initial Principal Balance of Term
Loan B, together with interest at the Initial Fixed Rate, over a term of
eighty-four (84) months. The final twenty-four (24) monthly installments shall
be in the amount necessary to amortize the greater of (i) the Principal Balance
of Term Loan B immediately following the sixtieth (60th) monthly installment or
(ii) the Principal Balance of Term Loan B that would exist immediately following
the sixtieth (60th) monthly installment if all payments were made precisely when
due, together with interest at the Adjusted Fixed Rate, over a term of
twenty-four (24) months.
e. PREPAYMENT. Subject to Paragraph 8.9,
prepayment may be made in whole or in part at any time. All prepayments shall
be applied first to accrued interest and then to the Principal Balance.
Prepayments shall discharge Borrower's obligation to pay monthly installments of
principal and interest until such time as those monthly installments must
recommence in order for Borrower to pay the Loan in full not later than August
31, 2006, assuming all payments are made precisely when due.
8.7. PRIME AND/OR LIBOR BORROWING RATES. If Borrower elects
to have Term Loan B bear interest at Prime and/or LIBOR Borrowing Rates, then:
a. LIBOR BORROWING RATE. Borrower may elect from
time to time to have portions of the Principal Balance of Term Loan B accrue
interest at a LIBOR Borrowing Rate on the terms and conditions of Paragraph 9.
b. PRIME BORROWING RATE. Except for portions of
the Principal Balance of Term Loan B that are accruing interest at a LIBOR
Borrowing Rate, Borrower shall pay interest on the Principal Balance of Term
Loan B at a variable interest rate equal to the Prime Rate plus one-half of one
percent (0.5%). The interest rate shall be adjusted without notice effective on
each day the Prime Rate changes.
c. DEFAULT INTEREST RATE. Notwithstanding anything
in this Agreement to the contrary, upon the occurrence of an Event of Default,
the Prime Borrowing Rate Amount of Term Loan B shall thereafter accrue interest
at a variable interest rate equal to the Prime Rate plus five and one-half
percent (5.5%), and each outstanding LIBOR Borrowing Rate
Page 21-RESTATED AND AMENDED LOAN AGREEMENT
Amount shall accrue interest at a LIBOR Borrowing Rate equal to the LIBOR Rate
previously determined by Bank for the IBOR Borrowing Rate Amount plus seven
percent (7%).
d. PAYMENT OF INTEREST. Borrower shall pay accrued
interest on the fifteenth (15th) day of the first calendar month following the
closing of Term Loan B, and on the fifteenth (15th) day of every calendar month
thereafter prior to Maturity, and at Maturity. In addition, with respect to all
LIBOR Borrowing Rate Amounts, accrued interest shall be paid on the last day of
the applicable LIBOR Interest Period.
e. PAYMENT OF PRINCIPAL. The Principal Balance of
Term Loan B shall be paid in eighty-four equal (84) monthly installments of one
eighty-fourth (1/84th) of the Principal Balance of Term Loan B; provided that
the unpaid balance of Term Loan B, principal and interest, shall be paid in full
not later than August 31, 2006. The first monthly installment shall be due and
payable on the fifteenth (15th) day of the first calendar month following the
closing of Term Loan B, and additional monthly installment shall be due and
payable on the fifteenth (15th) day of every calendar month thereafter.
f. PREPAYMENT. Subject to Paragraph 8.9.,
prepayment may be made in whole or in part at any time. All prepayments shall
be applied first to the Prime Borrowing Rate Amount and then to any LIBOR
Borrowing Rate Amounts (in such order as Bank may determine in Bank's absolute
discretion), and then to accrued interest. Prepayments of principal shall be
applied to the remaining installments of principal in the order of their
maturity.
8.8. COMPUTATION OF INTEREST. All interest will be computed
at the applicable rate based on a three hundred sixty (360) day year and applied
to the actual number of days elapsed.
8.9. PREPAYMENT PREMIUM. Upon payment of all or any portion
of Term Loan B on a date other than the regularly scheduled due date for
payment, including, without limitation, voluntary prepayment or repayment upon
acceleration following an Event of Default, Borrower shall pay to Bank on
demand:
a. If Term Loan B is bearing interest at a fixed
rate, a yield maintenance charge calculated in accordance with Exhibit B.
b. If Term Loan B is bearing interest at Prime
and/or LIBOR Borrowing Rates, then with respect to all LIBOR Borrowing Rate
Amounts, a yield maintenance charge calculated in accordance with Exhibit A.
8.10. REVOLVING TERM LOAN.
a. MAXIMUM AMOUNT. Term Loan B is a reducing,
revolving term loan. At any time, the maximum Principal Balance of Term Loan B
shall equal the Principal Balance that would then exist if all payments had been
made precisely when due.
Page 22-RESTATED AND AMENDED LOAN AGREEMENT
b. FUTURE ADVANCES. If Borrower prepays all or any
portion of Term Loan B, then Borrower may request future Advances under Term
Loan B. Whenever Borrower desires to request an Advance, Borrower shall give
Bank notice thereof in accordance with Term Note B. Following the Advance, the
Principal Balance of Term Loan B shall not exceed the maximum Principal Balance
of Term Loan B.
c. REPRESENTATION AND WARRANTY. Each request by
Borrower for an Advance shall be deemed to be Borrower's representation and
warranty that no Event of Default, or event which, with notice or lapse of time,
or both, would be an Event of Default, has occurred or will occur as a result of
making the Advance.
d. MONTHLY PAYMENTS. To the extent Borrower's
obligation to pay monthly installments has been discharged as a result of
prepayments pursuant to paragraph 8.6.e. or 8.7.f., future Advances under Term
Loan B shall reinstate the obligation to pay those installments in the inverse
order of their maturity. Accordingly, Borrower's obligation to pay monthly
installments shall not recommence until such time as those monthly installments
must recommence in order for Borrower to pay Term Loan B in full not later than
August 31, 2006, assuming all payments are made precisely when due.
8.11. FEE. At the time of closing of Term Loan B, Borrower
shall pay Bank a loan fee in the amount of one percent (1%) of the principal
amount of Term Loan B, less Thirty-Five Thousand Dollars ($35,000), but in no
event less than zero (-0).
9. LIBOR BORROWING RATE.
9.1. ELECTION BY BORROWER. Borrower may obtain LIBOR
Borrowing Rate quotes from Bank between 8:00 a.m. and 10:00 a.m. (Portland,
Oregon, time) on any Business Day. Borrower may request a new Advance as a
LIBOR Borrowing Rate Amount, or conversion of a portion of a Prime Borrowing
Rate Amount to a LIBOR Borrowing Rate Amount, or a new LIBOR Interest Period for
a LIBOR Borrowing Rate Amount whose LIBOR Interest Period is expiring, only by
giving Bank notice in accordance with Paragraph 9.2. not later than 10:00 a.m.
on such date.
9.2. NOTICE TO BANK. Whenever Borrower desires to use the
LIBOR Borrowing Rate option, Borrower shall give Bank irrevocable notice (either
in writing or orally) between 8:00 a.m. and 10:00 a.m. (Portland, Oregon, time)
two (2) Business Days in advance of the desired effective date of such rate.
Any oral notice shall be given by, and any written notice or confirmation of an
oral notice shall be signed by, a Person authorized to execute and delivery
promissory notes to Bank on behalf of Borrower, and shall specify the requested
effective date of the rate, the LIBOR Interest Period, and whether Borrower is
requesting a new Advance as a LIBOR Borrowing Rate Amount, conversion of a
portion of a Prime Borrowing Rate Amount to a LIBOR Borrowing Rate Amount, or a
new LIBOR Interest Period for a LIBOR Borrowing Rate Amount whose LIBOR Interest
Period is expiring. Bank may, but need not, require that all oral notices be
confirmed in writing. Notwithstanding any other term of the Loan Agreement,
Page 23-RESTATED AND AMENDED LOAN AGREEMENT
Borrower may elect a LIBOR Borrowing Rate Amount only in the minimum principal
amount of Five Hundred Thousand Dollars ($500,000) and in larger integral
multiples of One Hundred Thousand Dollars ($100,000). Except as provided in
Paragraph 9.3., the LIBOR Borrowing Rate for each LIBOR Borrowing Rate Amount
shall remain fixed for the applicable LIBOR Interest Period.
9.3. TERMINATION. If at any time Bank's LIBOR Rate is
unascertainable or unavailable to Bank or if LIBOR Rate loans become unlawful,
the option to select the LIBOR Borrowing Rate shall terminate immediately. If
any LIBOR Borrowing Rates are then in effect, (i) each shall terminate
automatically with respect to the applicable LIBOR Borrowing Rate Amount (a) on
the last day of the applicable LIBOR Interest Period, if Bank may lawfully
continue to maintain such loans, or (b) immediately if Bank may not lawfully
continue to maintain such loans through such day, and (ii) the Prime Borrowing
Rate automatically shall become effective as to such amounts upon termination.
9.4. ADDITIONAL COMPENSATION TO BANK. If at any time after
the date of this amendment (i) any revision in or adoption of any applicable
law, rule or regulation or in the interpretation or administration thereof (a)
shall subject Bank or its Eurodollar lending office to any tax, duty or other
charge, or change the basis of taxation of payments to Bank with respect to any
loans bearing interest based on Bank's LIBOR Rate or (b) shall impose or modify
any reserve, insurance, special deposit or similar requirements against assets
of, deposits with or for the account of, or credit extended by Bank or its
Eurodollar lending office, or impose on Bank or its Eurodollar lending office
any other condition affecting any such loans, and (ii) the result of the
foregoing is (x) to increase the cost to Bank of making or maintaining any such
loans or (y) to reduce the amount of any sum receivable under the Loan Agreement
by Bank or its Eurodollar lending office, Borrower shall pay Bank within fifteen
(15) days after demand by Bank such additional amount as will compensate Bank
for such increased cost or reduction. The determination hereunder by Bank of
such additional amounts shall be conclusive in the absence of manifest error.
If Bank demands compensation under this paragraph, Borrower may, upon three (3)
Business Days' notice to Bank, pay the accrued interest on all LIBOR Borrowing
Rate Amounts as may be affected, together with any additional amounts payable
under Paragraph 9.5. Upon Borrower's paying such accrued interest and
additional costs, the Prime Borrowing Rate immediately shall be effective with
respect to the unpaid principal balance of such LIBOR Borrowing Rate Amounts.
9.5. YIELD MAINTENANCE CHARGE. Upon any termination of any
LIBOR Borrowing Rate (including, but not limited to, conversion to another rate)
or payment of all or any portion of any LIBOR Borrowing Rate Amount on a date
other than the last day of the then applicable LIBOR Interest Period, as the
case may be, including, without limitation, (i) voluntary prepayment, (ii)
acceleration following an Event of Default, or (iii) repayment in response to a
notice under Paragraph 9.4., Borrower shall pay to Bank on demand a yield
maintenance charge calculated in accordance with Exhibit A.
Page 24-RESTATED AND AMENDED LOAN AGREEMENT
9.6. PAYMENT OF INTEREST. If Borrower selects the LIBOR
Borrowing Rate, Borrower shall pay interest based on such rate, plus any other
applicable taxes or charges hereunder, even though Bank may have obtained the
funds loaned to Borrower from sources other than the applicable London interbank
market. Bank's determination of the LIBOR Borrowing Rate and any such taxes or
charges shall be conclusive in the absence of manifest error.
9.7. DEFAULT. Notwithstanding any other term of the Loan
Agreement, Borrower may not select the LIBOR Borrowing Rate if an event has
occurred that constitutes an Event of Default or which, with notice or lapse of
time, or both, would be an Event of Default.
10. NOTES; SECURITY.
10.1. NOTES. Contemporaneously with the execution of this
Agreement, Borrower shall execute and deliver to Bank a new Revolving Note, a
new Term Note A, a new 1998/1999 Construction Note and a Bridge Note, in form
and substance satisfactory to Bank. However, the execution and delivery of
these Notes shall not be deemed to pay or otherwise discharge any other Notes
evidencing the Loans. Contemporaneously with any closing of Term Loan B,
Borrower shall execute and deliver to Bank Term Note B in form and substance
satisfactory to Bank.
10.2. SECURITY.
a. THE COLLATERAL. All obligations of Borrower to
Bank under this Agreement and the Notes shall be secured by a first priority
security interest in:
(1) All of Borrower's now owned and
hereafter acquired inventory, accounts, equipment, fixtures, chattel paper,
documents, instruments, investment property, contract rights and general
intangibles; and all products and proceeds of the foregoing.
(2) All stock in P&C.
Bank does not intend to perfect its security interests in the Billboards and
Billboard Site Leases at the time of execution of this Agreement, but Bank
reserves the right to perfect those interests at any time and for any reason.
b. THE COLLATERAL DOCUMENTS. Contemporaneously
with the execution of this Agreement, Borrower shall execute and deliver or
cause to be executed and delivered to Bank such security agreements, Uniform
Commercial Code financing statements, deeds of trust, mortgages and other
security instruments covering the Collateral as Bank may require, each in a form
and substance satisfactory to Bank.
c. ADDITIONAL ACTS. At Bank's request, Borrower
from time to time shall execute and/or deliver to Bank such additional deeds of
trust, security agreements, Uniform Commercial Code financing statements and any
other documents and instruments
Page 25-RESTATED AND AMENDED LOAN AGREEMENT
(endorsed or assigned to Bank as Bank may request), which may be required under
applicable law or which Bank may request to effectuate the transactions
contemplated under this Agreement and to grant, preserve, protect and perfect
the validity and first priority of the security interests intended to be created
by the Collateral Documents.
d. TITLE INSURANCE AND TITLE REPORTS. At Bank's
request, Borrower from time to time shall deliver to Bank (i) a lender's title
insurance policy, naming Bank as the insured, acceptable to Bank as to amount,
insurer, form, coverage and exceptions, and showing the lien of Bank securing
the Loan as a first lien upon each Billboard and Billboard Site Lease worth
Fifty Thousand Dollars ($50,000) or more, and (ii) Status of Title or Lot Book
Reports, acceptable to Bank as to title company, form, coverage and exceptions,
and showing the Lien of Bank securing the Loan as a first lien upon each
Billboard and Billboard Site Lease worth less than Fifty Thousand Dollars
($50,000). Solely for purposes of this paragraph, the worth of a Billboard and
its associated Billboard Site Lease will be determined by Bank in its reasonable
discretion.
10.3. PARTIAL RELEASE OF P&C STOCK. Bank shall release from
the Collateral all stock in P&C upon the following conditions, which are for the
benefit of Bank and which may be waived in whole or in part by Bank:
a. The Bridge Loan shall be paid in full.
b. Term Loan B shall be paid in full, and all
rights of Borrower to future Advances under Term Loan B shall have terminated.
c. At the time of release, all representations and
warranties of Borrower contained in this Agreement shall continue to be true and
complete.
d. At the time of release, no Event of Default
shall have occurred or be continuing, and no event shall have occurred or be
continuing that, with the giving of notice or the passage of time or both, would
be an Event of Default.
e. No material adverse change shall have occurred
in the financial condition of Borrower since the date of this Agreement.
11. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Agreement is subject to satisfaction of each of the following conditions
precedent:
11.1. Bank shall have received this Agreement, the new
Revolving Note, the new Term Note A, the new 1998/1999 Construction Note, the
Bridge Note, the Collateral Documents and each other Loan Document to which
Borrower is a party, each executed and delivered by a duly authorized
representative of the applicable parties thereto.
Page 26-RESTATED AND AMENDED LOAN AGREEMENT
11.2. Bank shall have received all documents and information
Bank may request relating to the authority for and validity of this Agreement
and the other Loan Documents, and to any other related matters, each in a form
and substance satisfactory to Bank.
11.3. Bank shall have received a written opinion of Xxxxxx
Xxxx LLP, counsel for Xxxx and P&C, and a written opinion of Xxxx-Xxxx, counsel
for Obie BC, each dated as of the date of this Agreement and addressed to Bank,
in a form and substance satisfactory to Bank.
11.4. Bank shall have received the fees referred to in
Paragraphs 2.9.a. and 7.10.
12. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants:
12.1. EXISTENCE AND POWER. Borrower is a duly organized and
validly existing corporation in its jurisdiction of incorporation and is duly
qualified and in good standing in each jurisdiction where the conduct of its
business or the ownership of its properties requires such qualification, and has
full power, authority and legal right to carry on its business as presently
conducted, to own and operate its properties and assets, and to execute, deliver
and perform the Loan Documents and all other documents to be executed and
delivered by it.
12.2. AUTHORIZATION. The execution, delivery and performance
by Borrower of the Loan Documents and all other documents to be executed,
delivered or performed by it and any borrowing in connection therewith have been
duly authorized by all necessary action, do not contravene any Law binding on it
or its organizational documents, and do not contravene the provisions of or
constitute a default under any agreement or instrument to which it is a party or
by which it may be bound or affected.
12.3. SUBSIDIARIES. Each of Obie BC and P&C is a wholly owned
subsidiary of Xxxx. Xxxx has no other subsidiaries or divisions, except OB
Walls, Inc., a fifty percent (50%) owned subsidiary, nor is Xxxx engaged in any
joint venture or partnership with any other Person. Neither Obie BC nor P&C has
any subsidiaries or divisions, and neither is engaged in any joint venture or
partnership with any other Person.
12.4. ADVERTISING BUSINESS. Borrower is the sole owner of all
of the billboard and mass transit advertising businesses currently conducted by
it. Specifically, but without limitation, Borrower is the sole owner of all
Billboards, Billboard Site Leases, advertising contracts with mass transit
districts, contracts for the sale of advertising design services, and contracts
for advertising space on Billboards and mass transit vehicles.
12.5. LITIGATION. There are no actions, proceedings,
investigations or claims pending against Borrower, or, to its knowledge,
threatened against or affecting Borrower, before any court, arbitrator,
governmental body or agency which would be likely to result in a judgment or
order against Borrower in excess of Twenty-five Thousand Dollars ($25,000).
Page 27-RESTATED AND AMENDED LOAN AGREEMENT
12.6. FINANCIAL CONDITION. All Financial Statements furnished
to Bank prior to the full execution of this Agreement by Borrower have been
prepared in accordance with GAAP, except as noted therein; and all such
Financial Statements fully and fairly represent the financial condition
presented at the dates thereof and the income and loss for the periods covered
thereby, and there have been no material adverse changes in Borrower's financial
condition or business from the date thereof to the date of this Agreement.
12.7. TAXES. Borrower has filed all tax returns and reports
required of it, and has paid all taxes payable by it which have become due
pursuant to such tax returns and all other taxes and assessments payable by
Borrower.
12.8. OTHER AGREEMENTS. Borrower is not in breach of or in
default under any agreement to which it is a party or which is binding on it or
any of its assets, which breach or default would have a material adverse effect
on Borrower's financial condition or operations.
12.9. GOOD TITLE. Borrower is the true and lawful owner of
and has good title to all Collateral and it will have good title to all such
Collateral acquired hereafter, free of any security interests, liens or
encumbrances, except in favor of Bank.
12.10. FIRST PRIORITY SECURITY INTEREST. Except as provided in
paragraph 17, the liens created or to be created in favor of Bank under the
Collateral Documents do and will at all times on and after the effective date of
this Agreement, constitute first priority security interests in the Collateral
as security for the Borrower's obligations under the Loan Documents.
12.11. COMPLIANCE WITH LAWS. Borrower is in compliance with
all applicable Laws. Without limiting the foregoing, Borrower represents and
warrants that (a) to the best of Borrower's actual knowledge, all conditions at
all present and former business premises of Borrower and its Affiliates, and all
activities at those business premises, have at all times conformed to all
applicable Environmental Laws, (b) to the best of Borrower's actual knowledge,
no Hazardous Substance has been released or discharged from any of those
premises or is otherwise present in the soil or water of, or stored at, any of
those premises, and (c) Borrower and its Affiliates are otherwise in compliance
with all environmental permits and all Environmental Laws applicable to their
properties or operations.
12.12. ENFORCEABILITY. This Agreement constitutes, and each
other Loan Document to which Borrower is a party, when executed and delivered to
Bank, will constitute, its legal, valid and binding obligation, enforceable in
accordance with its terms.
12.13. P&C PURCHASE AGREEMENT. Each of the representations and
warranties made by Xxxx in the Stock Purchase Agreement is true and correct,
and, to the best of their knowledge, each of the representations and warranties
made by P&C in the Stock Purchase Agreement is true and correct.
Page 28-RESTATED AND AMENDED LOAN AGREEMENT
12.14. ACCURACY OF REPRESENTATIONS AND WARRANTIES. No
representation or warranty contained in this Agreement contains any untrue
statement of material fact or omits to state a material fact necessary to make
such representations or warranties not misleading.
13. AFFIRMATIVE COVENANTS. Until payment in full of all payment
obligations, and performance of all other obligations, of Borrower under the
Loan Documents, Borrower agrees that:
13.1. INSPECTION RIGHTS. At any reasonable time, and from
time to time, Borrower will permit Bank to examine and make copies of and
abstracts from its Records and books of account, to inspect the Collateral, to
visit its properties and to discuss its affairs, finances and accounts with any
of its owners, managers or representatives.
13.2. COLLATERAL AUDITS. Without limiting the provisions of
Paragraph 13.1., Borrower will permit Bank, by or through any of Bank's
representatives, attorneys or accountants, and at Borrower's expense, to conduct
periodic audits of and to verify the Collateral.
13.3. KEEPING OF BOOKS AND RECORDS. Borrower will keep
adequate records and books of account in which complete entries will be made, in
accordance with GAAP, reflecting all material financial transactions.
13.4. CONDUCT OF BUSINESS. Borrower shall preserve and
maintain its corporate existence and that of its Affiliates, and all of its
rights, privileges and franchises necessary or desirable in the normal conduct
of its business, and conduct its business in an orderly and efficient manner
consistent with good business practices.
13.5. OTHER OBLIGATIONS. Borrower will pay and discharge when
due all indebtedness, taxes and other obligations for which it is liable or to
which its income or property is subject and all claims for labor or materials
which, if unpaid, might become by law a lien upon its assets, unless it is
contesting the indebtedness, taxes, or other obligations in good faith and
provision has been made to the reasonable satisfaction of Bank for the payment
thereof in the event any such contest is determined adversely to it.
Specifically, but without limitation, Borrower will pay and perform when due all
obligations of the tenant under all Billboard Site Leases, whether now existing
or hereafter arising.
13.6. INSURANCE. Borrower will provide, maintain and deliver
to Bank policies of hazard, liability, key man life and other insurance with
respect to all of the Collateral owned by it, and with respect to its properties
and operations, carried with companies acceptable to Bank and in such amounts
and covering all such risks as Bank may require, with loss payable to Bank.
Specifically, but without limitation, Xxxx, as the owner, shall at all times
maintain key man life insurance on Xxxxx Xxxx, as the insured, that will pay
Xxxx net death benefits (after any offsets or deductions) of not less than Two
Million Dollars ($2,000,000); shall keep that policy
Page 29-RESTATED AND AMENDED LOAN AGREEMENT
free of all liens and encumbrances; and shall not terminate, surrender, borrow
against or otherwise modify or amend that policy without the prior written
consent of Bank.
13.7. FINANCIAL INFORMATION.
a. As soon as available and in any event within
ninety (90) days after the end of its fiscal year, Borrower shall deliver to
Bank its CPA audited (i) consolidated balance sheet as of the end of that fiscal
year, (ii) related consolidated statements of income and retained earnings and
statement of changes in financial position for that year; and (iii) report, if
any, to management by the accountant that prepared the financial statements, in
each case audited by Xxxxxx Xxxxxxxx LLP or another certified public accountant
acceptable to Bank and prepared in accordance with GAAP. No document or report
shall contain a disclaimer of opinion or adverse opinion except such as Bank in
its sole discretion may determine to be immaterial.
b. As soon as available and in any event within
forty-five (45) days after the end of each fiscal quarter, Borrower will furnish
to Bank its company-prepared balance sheet and statement of income as at the end
of such fiscal quarter, in each case prepared on a consolidated basis in
accordance with GAAP.
c. As soon as available and in any event within
thirty (30) days after filing, but in no event more than six (6) months after
the end of each tax year, Borrower and each of its Affiliates shall furnish to
Bank their federal income tax returns for that tax year.
d. As soon as available and in any event by noon on
the fifth (5th) Business Day of each month, Borrower shall furnish to Bank an
aging of accounts, and a borrower's certificate summarizing the status of the
Borrowing Base and the Loan, each prepared as of the close of business on the
last day of the preceding month and in a form reasonably acceptable to Bank.
e. As soon as available and in any event by noon on
the fifth (5th) Business Day of each month, Borrower shall furnish to Bank a
certificate prepared as of the first day of that month and in a form reasonably
acceptable to Bank, and executed by the president or chief financial officer of
Borrower, that (i) identifies all new Billboard Site Leases that arose during
the preceding month, (ii) identifies all Billboard Site Leases that expired or
otherwise terminated during the preceding month, (iii) represents that, except
as otherwise disclosed to Bank in writing, all Billboard Site Leases are in full
force and effect and that Borrower is not in any respect in default thereunder
(or specifying any events of default), and (iv) sets forth such other
information as Bank may request concerning the Billboards and Billboard Site
Leases.
f. As soon as available, one copy of each financial
statement, report, notice or proxy statement sent by Borrower to stockholders
generally and of each regular or periodic report, registration statement or
prospectus filed by Borrower with any securities exchange or governmental
authority.
Page 30-RESTATED AND AMENDED LOAN AGREEMENT
g. From time to time, Borrower shall furnish to
Bank all other statements, reports, tax returns and other information as Bank
may reasonably request concerning the financial condition and business affairs
of Borrower.
13.8. COMPLIANCE WITH LAWS. Borrower shall comply in all
material respects with all Laws (including but not limited to all securities and
Environmental Laws) and promptly provide written notice to Bank (1) of the
receipt of any notice of violation thereof from any Person which violation,
alone or together with any other such violations, could reasonably be expected
to have a material adverse effect on Borrower's business, assets, operations or
condition, financial or otherwise, and (2) upon becoming aware that any facility
at any time owned or operated by Borrower is being, or has been, subject to a
release of any Hazardous Substance. Without limiting the generality of the
foregoing, Borrower agrees that it will at all times comply with applicable laws
relating to disabled access, including, but not limited to, all applicable
titles of the Americans with Disabilities Act of 1990, as amended.
13.9. LANDLORD CONSENTS. Borrower shall exercise Borrower's
best efforts to include the following language in all future Billboard Site
Leases:
"Upon Lessee's request, Lessor agrees to execute, acknowledge
before a notary public, and permit Lessee to record a memorandum
of this Lease. Lessee may sell, assign or encumber its interest
in this Lease and any signs and improvements placed on the site
by Lessee. Any claim Lessor ever has to any such sign or
improvement is subject to the interest of a secured lender to
Lessee, and the lender may at any time remove the sign or
improvement. Upon written notice to Lessor of the name and
address of a secured lender to Lessee, Lessor agrees not to
terminate this Lease until the lender has been given written
notice of any default and the default has not been cured within
thirty (30) days after receipt of the notice. Lessor agrees to
promptly copy such lender on any other notices or correspondence
to Lessee. Lessor agrees to execute any documents or consents
necessary to allow such lender to file and perfect its secured
interest."
13.10. NOTIFICATION. Promptly after learning thereof, Borrower
will notify Bank of:
a. The occurrence of any Event of Default or other
event which, with notice or lapse of time, or both, would be an Event of
Default, and if such Event of Default or such other event is then continuing, a
certificate of its chief financial officer or other authorized representative
setting forth the details thereof and the action which it is taking or proposes
to take with respect thereto; and
Page 31-RESTATED AND AMENDED LOAN AGREEMENT
b. The details of any lien, litigation,
administrative proceeding or judgment involving Twenty-five Thousand Dollars
($25,000) or more (including but not limited to any arising from or related to
any Hazardous Substance or securities or Environmental Laws) arising after the
date hereof and affecting Borrower or any assets of Borrower.
13.11. CASH FLOW COVERAGE RATIO. Borrower shall maintain a
ratio of Cash Flow to Cash Requirements, on a consolidated basis, of:
a. Not less than 1.10 to 1 for the twelve (12)
month period ending on the last day of each fiscal quarter of Borrower, through
the fiscal quarter ending November 30, 1999.
b. Thereafter, not less than 1.25 to 1 for the
twelve (12) month period ending on the last day of each fiscal quarter of
Borrower.
c. For purposes of this paragraph:
(1) "Cash Flow" means, for the applicable
period, (i) Borrower's net income after taxes; plus (ii) amortization,
depreciation and other non-cash expenses deducted in calculating that net
income; minus (iii) any amounts paid by Borrower for the purchase or capital
lease of tangible or intangible assets that are not funded by long-term debt
(but not less than zero); all as reasonably determined by Bank on a consolidated
basis in accordance with GAAP.
(2) "Cash Requirements" means, for the
applicable period, (i) the regularly scheduled payments of principal by Borrower
upon long-term debt (including the Loans); plus (ii) any prepayments of
principal by Borrower upon long-term debt (excluding the Loans); plus (c) any
dividends or other distributions paid by Borrower to its shareholders; all as
reasonably determined by Bank on a consolidated basis in accordance with GAAP.
13.12. CASH FLOW LEVERAGE RATIO. Borrower shall maintain a
ratio of Interest-Bearing Debt to EBITDA, on a consolidated basis, of not more
than 4 to 1 for the twelve (12) month period ending on the last day of each
fiscal quarter of Borrower. For purposes of this paragraph:
a. "Interest-Bearing Debt" means Borrower's
aggregate interest-bearing debt as of the last day of the applicable period, as
reasonably determined by Bank on a consolidated basis in accordance with GAAP.
Interest-Bearing Debt specifically includes, without limitation, all Loans, all
loans from third Persons, all purchase money indebtedness and all capital leases
of Borrower. Interest Bearing Debt does not include Letters of Credit, but does
include any payment made by Bank on account of a Letter of Credit.
Page 32-RESTATED AND AMENDED LOAN AGREEMENT
b. "EBITDA" means, for the applicable period,
Borrower's net income after taxes, plus interest expense, income tax expense,
depreciation and amortization, as reasonably determined by Bank on a
consolidated basis in accordance with GAAP.
14. NEGATIVE COVENANTS. Until payment in full of all payment
obligations, and performance of all other obligations, of Borrower under the
Loan Documents, Borrower agrees that:
14.1. LIQUIDATION, MERGER OR SALE OF ASSETS. Borrower shall
not liquidate, dissolve or enter into any merger, consolidation or other
combination, nor sell, lease or dispose of any portion of its business or assets
except in the ordinary course of its business, without the Bank's prior written
consent, which shall not be unreasonably withheld.
14.2. GUARANTIES, LOANS AND INVESTMENTS.
a. Borrower shall not assume, guarantee, endorse or
otherwise become directly or contingently liable for, nor obligated to purchase,
pay or provide funds for payment of, any obligation or indebtedness of any other
Person.
b. Borrower shall not make or contract to make any
loan to any Person or purchase or otherwise acquire the capital stock of, or any
interest in, any Person; provided, however, that Borrower may acquire marketable
securities that are regularly traded in a nationally recognized United States
securities market, and provided that Borrower may make loans in an aggregate
principal amount not to exceed at any one time outstanding the amount of Fifty
Thousand Dollars ($50,000).
14.3. LIENS. Borrower shall not, at any time, grant a
security interest or other encumbrance on all or any of its presently owned or
hereafter acquired Collateral, except to Bank; provided, however, that Borrower
may grant purchase money security interests to secure purchase money
indebtedness that does not exceed Sixty Thousand Dollars ($60,000) in the
aggregate in any fiscal year of Borrower.
14.4. TYPE OF BUSINESS. Borrower shall not make any material
change in the character of its business.
15. CASH COLLATERAL ACCOUNT. Notwithstanding the provisions of any
other Loan Documents, except at such times as the unpaid balance, principal and
interest, of the Revolving Loan is zero ($0.00), Borrower hereby agrees to hold
all proceeds of collections on its accounts and of any other Collateral in trust
for Bank and to deliver such proceeds to Bank daily in the exact form in which
they are received, together with a collection report in form satisfactory to
Bank. Cash proceeds (including checks) of all such Collateral shall be
deposited in an account maintained with and under the sole control of Bank.
Provided no Event of Default, or event which, with notice or lapse of time, or
both, would be an Event of Default, has occurred, Bank may maintain sole control
over cash proceeds for one (1) full Business Day following the date of
Page 33-RESTATED AND AMENDED LOAN AGREEMENT
deposit, and thereafter shall apply those proceeds (a) first, to the unpaid
balance of the Revolving Loan, (b) second, Bank may, at its option, apply any or
all remaining proceeds to payment of any of Borrower's obligations to Bank that
are then due, and (c) third, Bank shall release any remaining proceeds to
Borrower. If any Event of Default, or any event which, with notice or lapse of
time, or both, would be an Event of Default, has occurred, Bank, in its
discretion, may apply any or all cash proceeds to payment of any of Borrower's
obligations to Bank, whether or not then due, or may release any such proceeds
or any portion thereof to Borrower.
16. DEFAULT.
16.1. EVENTS OF DEFAULT. The occurrence of any of the
following shall constitute an Event of Default under this Agreement:
a. Any failure to pay any portion of any principal,
interest or fees within ten (10) days after the due date thereof under this
Agreement, any Note or any other Loan Document;
b. Any failure (other than as specified in
Paragraph 16.1.a) by Borrower to perform or comply with any term of this
Agreement, any other Loan Document or any other agreement between Bank and
Borrower within twenty (20) days after written notice by Bank to Borrower
specifying the nature of the nonperformance with reasonable particularity;
c. Any indebtedness of Borrower under any note,
indenture, agreement, undertaking or obligation of any kind to any Person,
including Bank, becomes due by acceleration or otherwise and is not paid;
provided, however, that if Borrower objects in good faith to the validity or the
amount of any such indebtedness (except for indebtedness to Bank), then
Borrower, at its expense, may contest the validity or amount of that
indebtedness provided that, upon Bank's request, Borrower promptly provides a
bond, cash deposit or other security reasonably satisfactory to Bank to protect
Bank should the contest be unsuccessful;
d. Any security interest or lien created or
purported to be created by any Collateral Document shall cease to be, or shall
be asserted by any Person not to be, a valid, first priority security interest
or lien;
e. Any warranty, representation or statement made
or furnished to Bank by or on behalf of Borrower proves to have been false or
misleading in any material respect when made or furnished;
f. The commencement of any proceeding under any
bankruptcy or insolvency laws by or against, appointment of a receiver for any
part of the property of, insolvency or business failure of, or any attachment,
seizure or levy on any property of, Borrower;
Page 34-RESTATED AND AMENDED LOAN AGREEMENT
g. Any judgment or similar process in an amount in
excess of Twenty-Five Thousand Dollars ($25,000) individually or in the
aggregate shall be entered or filed against Borrower and remains unpaid,
unvacated, unbonded or unstayed for a period of thirty (30) days or more;
h. Borrower ceases to be an Affiliate of Xxxxx
Xxxx, except upon Xxxxx Xxxx'x death.
16.2. CONSEQUENCES OF DEFAULT; BANK'S RIGHTS AND REMEDIES.
Time is of the essence of this Agreement. Upon the occurrence of any Event of
Default and at any time thereafter Bank may, at its sole option, do any one or
more of the following:
a. Without notice to Borrower, declare the entire
outstanding balance of principal and interest of the Loans immediately due and
payable, whereupon the same shall become immediately due and payable without
presentment, demand, protest or other requirements of any kind, all of which are
expressly waived by Borrower; and
b. Exercise any and all other rights and remedies
provided in the Loan Documents and in any related agreements and documents, and
as otherwise provided by Law.
Bank's rights under Paragraph 16.2.a. shall not be deemed to restrict any right
of Bank to demand payment in full of any Loan.
17. OUTSTANDING P&C LETTERS OF CREDIT.
17.1. REPRESENTATIONS AND WARRANTIES. At the time of
execution of this Agreement, First Union National Bank (First Union) has
financing statements of record against P&C (but not Xxxx or Xxxx XX) with
priority superior to that of Bank's lien. Borrower represents and warrants to
Bank that:
a. P&C's only outstanding obligations to First
Union relate to a $150,000 Letter of Credit issued by First Union in which
Broward County is the beneficiary, a $150,000 Letter of Credit issued by First
Union in which International Fidelity Insurance Co. is the beneficiary, a
$100,000 Letter of Credit issued by First Union in which Southwest Ohio Regional
Transit Authority is the beneficiary, and an $8,750 Letter of Credit issued by
First Union in which Southwest Ohio Regional Transit Authority is the
beneficiary (collectively, the P&C Letters of Credit).
b. No amount has been drawn against any P&C Letter
of Credit, and no event has occurred that could be grounds for drawing against
any P&C Letter of Credit.
17.2. FIRST UNION CERTIFICATE. Upon execution of this
Agreement, Borrower shall deliver to Bank the written certificates of First
Union confirming that:
Page 35-RESTATED AND AMENDED LOAN AGREEMENT
a. The representations in paragraph 17.1. are true.
b. Promptly upon termination of the P&C Letters of
Credit, First Union will terminate or otherwise satisfy all liens it may have
against P&C.
17.3. TERMINATION OF P&C LETTERS OF CREDIT. Promptly following
execution of this Agreement, Borrower shall cause the P&C Letters of Credit to
be terminated by substituting Letters of Credit issued by Bank pursuant to
paragraph 2.2., and shall cause First Union to terminate or otherwise satisfy
all liens it may have against P&C.
18. MISCELLANEOUS.
18.1. ARBITRATION. Bank and Borrower agree that all disputes,
claims and controversies between them, whether individual, joint, or class in
nature, relating in any way to this Agreement, the other Loan Documents or the
Loan, including without limitation contract and tort disputes, shall be
arbitrated pursuant to the Rules of the American Arbitration Association, upon
request of either party. No act to take or dispose of any Collateral shall
constitute a waiver of this arbitration provision or be prohibited by this
arbitration provision. This includes, without limitation, obtaining injunctive
relief or a temporary restraining order; foreclosing by notice and sale under
any deed of trust or mortgage; obtaining a writ of attachment or imposition of a
receiver; or exercising any rights relating to personal property, including
taking or disposing of such property with or without judicial process pursuant
to Article 9 of the Uniform Commercial Code. Any disputes, claims, or
controversies concerning the lawfulness or reasonableness or any act, or
exercise of any right, concerning any Collateral, including any claim to
rescind, reform, or otherwise modify any agreement relating to the Collateral,
shall also be arbitrated, provided, however, that no arbitrator shall have the
right or other power to enjoin or restrain any act of any party. Judgment upon
any award rendered by any arbitrator may be entered in any court having
jurisdiction. Nothing herein shall preclude any party from seeking equitable
relief from a court of competent jurisdiction. The statute of limitations,
estoppel, waiver, laches, and similar doctrines which would otherwise be
applicable in any action brought by a party shall be applicable in any
arbitration proceeding, and the commencement of any arbitration proceeding shall
be deemed the commencement of any action for these purposes. The Federal
Arbitration Act shall apply to the construction, interpretation, and enforcement
of this arbitration provision.
18.2. OUT-OF-POCKET COSTS. Borrower agrees to pay Bank on
demand an amount equal to all out-of-pocket costs incurred by Bank in connection
with the preparation of this Agreement and the other Loan Documents and the
administration of the Loans (including, without limitation, title policy
premiums, recording and filing fees, inside and outside attorney fees,
environmental assessments).
18.3. COLLECTION COSTS AND ATTORNEY FEES. Whether or not
litigation or arbitration is commenced, Borrower promises to pay all costs of
collecting any amounts which may become due to Bank under this Agreement, any
Note, any Collateral Document or any other Loan Document. Without limiting the
foregoing, if litigation or
Page 36-RESTATED AND AMENDED LOAN AGREEMENT
arbitration is commenced to enforce or construe any term of this Agreement, the
prevailing party shall be entitled to recover from the other party all costs
thereof, including, but not limited to, such sums as the court or arbitrator(s)
may adjudge reasonable as attorney fees at trial, in any appellate proceeding
and in any proceeding under the Bankruptcy Code or receivership.
18.4. INTEGRATION; AMENDMENTS; CONFLICTING TERMS. This
Agreement, together with the other Loan Documents, comprises the entire
agreement of the parties on the subject matter hereof and supersedes and
replaces all prior agreements, oral and written, on that subject matter. No
alteration or amendment to this Agreement or any of the other Loan Documents
shall be effective unless given in writing and signed by the party or parties
sought to be bound by the alteration or amendment. If any term of any other
Loan Document expressly conflicts with the provisions of this Agreement, the
provisions of this Agreement shall control; provided, however, that the
inclusion of supplemental rights and remedies of Bank in any other Loan Document
shall not be deemed a conflict with this Agreement.
18.5. ENFORCEMENT AND WAIVER BY BANK. Bank shall have the
right at all times to enforce the provisions of this Agreement, the Notes and
all other Loan Documents in strict accordance with the terms of those documents,
notwithstanding any conduct or custom on the part Bank in refraining from so
doing at any time. The failure of Bank at any time to strictly enforce its
rights under such provisions shall not be construed as having created a custom
in any way contrary to the specific provisions of this Agreement or as having in
any way modified or waived the same. All rights and remedies of Bank are
cumulative and concurrent, and the exercise of any one right or remedy shall not
be deemed a waiver or release of any other right or remedy. Xxxx, Xxxx BC and
P&C, as Borrower, are jointly and severally liable for payment and performance
of Borrower's obligations under this Agreement.
18.6. BINDING EFFECT; ASSIGNMENT. This Agreement shall inure
to the benefit of, and shall be binding upon, the parties' respective successors
and permitted assigns. However, Borrower has no right to assign any of its
rights or obligations under this Agreement or any other Loan Document without
Bank's prior written consent.
18.7. COUNSEL. Each party acknowledges that each party has
been represented by counsel in connection with the preparation and execution of
this Agreement and the other Loan Documents, and that each party has thoroughly
reviewed those documents with that party's counsel. The rule of construction
that a written agreement is construed against the party preparing or drafting
the agreement shall specifically not apply to the interpretation of this
Agreement or the other Loan Documents.
18.8. NOTICES. Any notices required or permitted to be given
under the terms of this Agreement or any other Loan Documents shall be in
writing and may be given by personal delivery; first-class mail; certified mail,
return receipt requested; or nationally recognized overnight courier; directed
to the parties at the following addresses, or such other address as any party
may designate in writing prior to the time of the giving of such notice, or in
any other manner authorized by law:
Page 37-RESTATED AND AMENDED LOAN AGREEMENT
Borrower: 0000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxx
Bank: Oregon Corporate Banking
000 X.X. Xxx
XX-0 Corporate Loan Servicing Center
Xxxxxxxx, XX 00000
With a copy to: Attn: Xxxxx Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
Any notice given shall be effective when actually received; or if given by
certified mail, then forty-eight (48) hours after deposit of such notice in the
United States mail with postage prepaid; or if given by overnight courier, then
twenty-four (24) hours after the deposit of such notice with the overnight
courier with delivery charges prepaid.
18.9. SEVERABILITY. If a court of competent jurisdiction
finds any provision of this Agreement to be invalid or unenforceable as to any
person or circumstance, such finding shall not render that provision invalid or
unenforceable as to any other persons or circumstances. If feasible, any such
offending provision shall be deemed to be modified to be within the limits of
enforceability or validity; however, if the offending provision cannot be so
modified, it shall be stricken and all other provisions of this Agreement in all
other respects shall remain valid and enforceable.
18.10. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Oregon
without regard to conflicts of law principles.
18.11. COUNTERPARTS; EXECUTION BY FACSIMILE. This Agreement
may be executed in several counterparts, each of which will be deemed to be an
original and all of which together constitute one and the same agreement.
Delivery of an executed copy of this Agreement by telecopy, telex or other means
of electronic communication producing a printed copy will be deemed to be an
execution and delivery of this Agreement on the date of such communication by
the parties so delivering such a copy. The party so delivering such a copy via
electronic communication shall deliver an executed original of this Agreement to
the other party within two (2) days of the date of delivery of the copy sent via
electronic communication.
18.12. STATUTORY DISCLOSURE. By Oregon statute (ORS 41.580),
the following disclosure shall be made:
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE
BY BANK AFTER OCTOBER 3, 1989
Page 38-RESTATED AND AMENDED LOAN AGREEMENT
CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL,
FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE MUST BE INWRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK
TO BE ENFORCEABLE.
DATED as of September 1, 1998.
XXXX MEDIA CORPORATION U.S. BANK NATIONAL ASSOCIATION, formerly
known as United States National Bank Of
Oregon
By /s/ Xxxxx Xxxx By /s/ Xxxxx Xxxxxxx
--------------------------- ----------------------------------
Xxxxx Xxxx, President Xxxxx Xxxxxxx, Vice President
XXXX MEDIA LTD.
By /s/ Xxxxx Xxxx
---------------------------
Xxxxx Xxxx, Treasurer
XXXXXXX & XXXXX, INC.
By /s/ Xxxxx X. Xxxxx
---------------------------
Xxxxx X. Xxxxx, President
Page 39-RESTATED AND AMENDED LOAN AGREEMENT
YIELD MAINTENANCE - LIBOR
Subject to the terms of the Note* of which this exhibit is a part, Borrower
may prepay the principal balance in whole or in part on any payment due date
by paying, in addition to the principal payment, accrued interest and any
other sums due Lender at the time of prepayment, a yield maintenance charge
("YMC") as determined by the following formula and if YMC is greater than
zero:
YMC = p x (i - y) x f
Where:
p = the prepaid principal amount
i = the current interest rate on the Note
y = the most current yield rate ("Yield Rate") on Lender's LIBOR Base Rate*
as defined in the Note for the LIBOR Period* most closely matching the
term from the date of prepayment to the end of the Yield Maintenance
Period.
n = a fraction wherein the numerator is the number of days from the date of
prepayment to the end of the Yield Maintenance Period and the denominator
is 360.
-n
f = present value factor = 1 - (1 + y)
-----------
y
"Yield Maintenance Period" means the time period from the date of prepayment
to the earlier of the next scheduled interest rate adjustment date as defined
in the Note or the maturity date of the Note.
If Borrower shall submit a payment amount in excess of the principal,
interest and other amounts due Lender, the allocation of principal and YMC
shall be calculated based on the following formula:
a= p + YMC
Where:
a = the excess amount to be applied
p = the prepaid principal amount = a
---------------
f x (i - y) + 1
YMC = a - p
f, i and y have the same meaning as stated above.
Except as provided in the next sentence, any partial prepayment of the
outstanding balance shall not extend the due date of any subsequent monthly
installments or change the amount of such installments, unless Lender shall
otherwise agree in writing. Upon any partial prepayment, Lender shall have
the option, in its sold and absolute discretion, to recalculate the monthly
installments due under the Note so that the amortization period remains the
same.
Borrower shall pay the YMC due under this exhibit whether the prepayment is
voluntary or involuntary (in connection with Lender's acceleration of the
unpaid principal balance of the Note) or Lender's deed of trust securing the
Note is satisfied or released by foreclosure (whether by power of sale or
judicial proceeding), deed in lieu of foreclosure or by any other means.
Notwithstanding any other provision herein to the contrary, Borrower shall
not be required to pay any YMC in connection with any prepayment occurring as
a result of the application of insurance proceeds or condemnation awards
under Lender's deed of Trust.
Should the LIBOR Base Rate not be available or discontinued, Lender shall
choose a comparable index in its sold and absolute discretion.
Lender's determination of the Yield Rate, LIBOR Base Rate, Yield Maintenance
Period and calculation of the formulas contained herein shall be conclusive
absent manifest error.
*For purposes of this exhibit, "Note" means "Agreement"; "LIBOR Base Rate"
means "LIBOR Rate"; and "LIBOR Period" means "LIBOR Interest Period."
Yield Maintenance - LIBOR EXHIBIT A
YIELD MAINTENANCE - U.S. TREASURY SECURITY
Subject to the terms of the Note* of which this addendum is a part, Borrower
may prepay the principal balance in whole or in part on any payment due date
by paying, in addition to the principal payment, accrued interest and any
other sums due Lender at the time of prepayment, a yield maintenance charge
("YMC") as determined by the following formula and if YMC is greater than
zero:
YMC = p x (i - y) x f
p = the prepaid principal amount
i = the current interest rate on the Note
y = the most current yield rate ("Yield Rate") on the U.S. Treasury Security
with a term most closely matching the remaining term from the date of
the prepayment to the end of the Yield Maintenance Period, as reported
under the heading "Week Ending" ("Auction Average" for 3 or 6 month
Treasury Bills) in the most currently available Federal Reserve
statistical release H.15 (519) of the Board of Governors of the Federal
Reserve System.
n = the number of years, and any fraction thereof remaining between the
prepayment date and the end of the Yield Maintenance Period.
-n
f = present value factor = 1 - (1 + y)
-----------
y
"Yield Maintenance Period" means the time period from the date of prepayment
to the earlier of the next scheduled interest rate adjustment date as defined
in the Note or the maturity date of the Note.
If Borrower shall submit a payment amount in excess of the principal,
interest and other amounts due Lender, the allocation of the principal and YMC
shall be calculated based on the following formula:
a= p + YMC
Where:
a = the excess amount to be applied
p = the prepaid principal amount = a
---------------
f x (i - y) + 1
YMC = a - p
f, i and y have the same meaning as stated above.
Except as provided in the next sentence, any partial prepayment of the
outstanding balance shall not extend the due date of any subsequent monthly
installments or change the amount of such installments, unless Lender shall
otherwise agree in writing. Upon any partial prepayment, Lender shall have
the option, in its sole discretion, to recalculate the monthly installments
due under the Note so that the amortization period remains the same.
Borrower shall pay the YMC due under this addendum whether the prepayment is
voluntary or involuntary (in connection with Lender's acceleration of the
unpaid balance of the Note) or Lender's deed of trust securing the Note is
satisfied or released by foreclosure (whether by power of sale or judicial
proceeding), deed in lieu of foreclosure or by any other means.
Notwithstanding any other provision herein to the contrary, Borrower shall
not be required to pay any YMC in connection with any prepayments occurring
as a result of the application of insurance proceeds or condemnation awards
under Lender's deed to Trust.
Should the Federal Reserve statistical release H.15 (519) not be available or
discontinued, Lender shall choose another source or comparable data in its
sold and absolute discretion.
Lender's determination of the Yield Rate, date of H.15 report, Yield
Maintenance Period and calculation of the formulas contained herein shall be
conclusive absent manifest error.
For purposes of this exhibit, "Note" means "Agreement."
EXHIBIT B
PROMISSORY NOTE
(Revolving Note)
$4,000,000 Eugene, Oregon September 1, 1998
PARTIES:
XXXX MEDIA CORPORATION, an Oregon corporation (Xxxx)
XXXX MEDIA LTD., a British Columbia corporation (Obie BC)
XXXXXXX & XXXXX, INC., a New York corporation (P&C)
(Xxxx, Xxxx BC and P&C, individually and jointly, are referred to in this
note as Borrower)
U.S. BANK NATIONAL ASSOCIATION, formerly known as United States National
Bank of Oregon (Bank)
AGREEMENTS:
1. PROMISE TO PAY. Upon demand, for value received, Borrower promises to
pay to Bank, or its order, the principal amount of Four Million United States
Dollars ($4,000,000), or so much as may be outstanding, together with interest
on the unpaid principal balance of each advance at the rate specified in this
note. Interest shall be calculated from the date of each advance until
repayment of each advance.
2. PAYMENT OF PRINCIPAL. Borrower shall pay the Principal Balance of
this note upon demand.
3. INTEREST RATE AND PAYMENT OF INTEREST.
3.1. DEFINITIONS. As used in this note, the following terms have
the following meanings:
a. "Prime Borrowing Rate" means a variable interest rate equal
to the Prime Rate.
b. "Prime Rate" means the rate identified and publicly
announced by Bank from time to time as its prime rate and does not necessarily
mean, for example, the lowest rate of interest which Bank collects for any
borrower or group of borrowers.
Page 1-PROMISSORY NOTE
c. "Principal Balance" means, at any time, the unpaid principal
balance of this note.
d. "Related Documents" means, without limitation, all loan
agreements, mortgages, deeds of trust, security agreements, guaranties and all
other instruments, agreements and documents, whether now or hereafter existing,
relating to the indebtedness evidenced by this note.
3.2. PRIME BORROWING RATE. Borrower shall pay interest on the
Principal Balance at the Prime Borrowing Rate. The Prime Borrowing Rate shall
be adjusted without notice effective on each day the Prime Rate changes.
3.3. DEFAULT INTEREST RATE. Notwithstanding anything in this note to
the contrary, upon the occurrence of an Event of Default, the Principal Balance
shall thereafter accrue interest at a variable interest rate equal to the Prime
Rate plus five percent (5%).
3.4. PAYMENT OF INTEREST. Borrower shall pay accrued interest on the
fifteenth (15th) day of September, 1998, and on the fifteenth (15th) day of
every calendar month thereafter, and upon demand.
3.5. COMPUTATION OF INTEREST. All interest will be computed at the
applicable rate based on a three hundred sixty (360) day year and applied to the
actual number of days elapsed.
3.6. USURY. Notwithstanding anything in this note to the contrary, at
no time shall the Prime Borrowing Rate exceed the maximum rate permitted by
applicable law.
4. PREPAYMENT. Prepayment may be made in whole or in part at any time.
All prepayments shall be applied first to the Principal Balance and then to
accrued interest.
5. LINE OF CREDIT. This note evidences a revolving line of credit.
Advances under this note may be requested orally by Borrower or by an authorized
person. Bank may, but need not, require that all oral requests be confirmed in
writing. All communications, instructions or directions by telephone or
otherwise to Bank are to be directed to the Xxxxxx office of Bank's Corporate
Banking Division. Borrower agrees to be liable for all sums either (a) advanced
in accordance with the instructions of an authorized person or (b) credited to
any of Borrower's accounts with Bank, regardless of the fact that persons other
than those authorized to borrow have authority to draw against the accounts.
The Principal Balance may be evidenced by endorsements on this note or by Bank's
internal records, including daily computer printouts. Bank will have no
obligation to advance funds under this note if an Event of Default, or an event
which, with notice or lapse of time, or both, would be an Event of Default, has
occurred or will occur as a result of
Page 2-PROMISSORY NOTE
making such advance, or if Bank has demanded payment of the Principal Balance
and accrued interest.
6. DEFAULT. Each of the following shall constitute an Event of Default
under this note:
6.1. Borrower fails to make any payment within ten (10) days after it
is due.
6.2. Any default under any Related Document or under any other
agreement between Bank and Borrower.
7. LATE CHARGE. If a payment is nineteen (19) days or more past due,
Borrower will be charged a late charge of five percent (5%) of the delinquent
payment. This right is in addition to Bank's other rights, including, without
limitation, Bank's acceleration rights.
8. NOTICES. Any notices required or permitted to be given under the
terms of this note shall be in writing and may be given by personal delivery;
first-class mail; certified mail, return receipt requested; or nationally
recognized overnight courier; directed to the parties at the following
addresses, or such other address as any party may designate in writing prior to
the time of the giving of such notice, or in any other manner authorized by law:
Borrower: 0000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxx
Bank: Oregon Corporate Banking
000 X.X. Xxx
XX-0 Corporate Loan Servicing Center
Xxxxxxxx, Xxxxxx 00000
With a copy to: Attn: Xxxxx Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxxx 00000
Any notice given shall be effective when actually received; or if given by
certified mail, then forty-eight (48) hours after deposit of such notice in the
United States mail with postage prepaid; or if given by overnight courier, then
twenty-four (24) hours after the deposit of such notice with the overnight
courier with delivery charges prepaid.
9. ARBITRATION. Bank and Borrower agree that all disputes, claims and
controversies between them, whether individual, joint, or class in nature,
relating in any way to this note or the Related Documents, including without
limitation contract and tort disputes, shall be arbitrated pursuant to the Rules
of the American Arbitration Association, upon request of either
Page 3-PROMISSORY NOTE
party. No act to take or dispose of any collateral shall constitute a waiver of
this arbitration provision or be prohibited by this arbitration provision. This
includes, without limitation, obtaining injunctive relief or a temporary
restraining order; foreclosing by notice and sale under any deed of trust or
mortgage; obtaining a writ of attachment or imposition of a receiver; or
exercising any rights relating to personal property, including taking or
disposing of such property with or without judicial process pursuant to Article
9 of the Uniform Commercial Code. Any disputes, claims, or controversies
concerning the lawfulness or reasonableness or any act, or exercise of any
right, concerning any collateral, including any claim to rescind, reform, or
otherwise modify any agreement relating to the collateral, shall also be
arbitrated, provided, however, that no arbitrator shall have the right or other
power to enjoin or restrain any act of any party. Judgment upon any award
rendered by any arbitrator may be entered in any court having jurisdiction.
Nothing herein shall preclude any party from seeking equitable relief from a
court of competent jurisdiction. The statute of limitations, estoppel, waiver,
laches, and similar doctrines which would otherwise be applicable in any action
brought by a party shall be applicable in any arbitration proceeding, and the
commencement of any arbitration proceeding shall be deemed the commencement of
any action for these purposes. The Federal Arbitration Act shall apply to the
construction, interpretation, and enforcement of this arbitration provision.
10. COLLECTION COSTS AND ATTORNEY FEES. Borrower agrees to pay upon
demand all of Bank's reasonable costs and expenses, including attorneys' fees
and Bank's legal expenses, incurred in connection with the enforcement of this
note. Costs and expenses include Bank's attorneys' fees and legal expenses
whether or not there is a lawsuit, including attorneys' fees and legal expenses
for bankruptcy proceedings (and including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post-judgment
collection services. Borrower also shall pay all court costs and such
additional fees as may be directed by the court.
11. WAIVERS. Each maker, co-maker, endorser or guarantor of this note,
waives diligence, demand, presentment for payment, notice of non-payment,
protest and notice of protest and consents to all extensions of time and
renewals hereof, whether or not the extensions or renewals are longer than the
original period of the note, to any exchange or release of any security for the
indebtedness evidenced by this note, and to any release of any party liable on
this note or any Related Document.
12. GENERAL PROVISIONS. Time is of the essence of this note. All
obligations of any maker, co-maker, endorser or guarantor of this note are joint
and several. This note shall be governed by and construed and enforced in
accordance with the laws of the State of Oregon without regard to conflicts of
law principles. Bank's rights and remedies under this note and under any
Related Documents are cumulative.
13. EXECUTION BY FACSIMILE; COUNTERPARTS. This note may be executed in
several counterparts, each of which will be deemed to be an original and all of
which together constitute one and the same instrument. Delivery of an executed
copy of this note by telecopy, telex or other means of electronic communication
producing a printed copy will be deemed to be
Page 4-PROMISSORY NOTE
an execution and delivery of this note on the date of such communication by the
parties so delivering such a copy. The party so delivering such a copy via
electronic communication shall deliver an executed original of this note to the
other party within one week of the date of delivery of the copy sent via
electronic communication.
14. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY
BANK AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH
ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE
BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY
BANK TO BE ENFORCEABLE.
XXXX MEDIA CORPORATION
By: /s/ Xxxxx Xxxx
------------------------------------
Xxxxx Xxxx, President
XXXX MEDIA LTD.
By: /s/ Xxxxx Xxxx
------------------------------------
Xxxxx Xxxx, Treasurer
XXXXXXX & COINE, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, President
U.S. BANK NATIONAL ASSOCIATION, formerly
known as United States National Bank of Oregon
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx, Vice President
Page 5-PROMISSORY NOTE
PROMISSORY NOTE
(Term Note A)
$5,760,000 Eugene, Oregon September 1, 1998
PARTIES:
XXXX MEDIA CORPORATION, an Oregon corporation (Xxxx)
XXXX MEDIA LTD., a British Columbia corporation (Obie BC)
XXXXXXX & XXXXX, INC., a New York corporation (P&C)
(Xxxx, Xxxx BC and P&C, individually and jointly, are referred to in this
note as Borrower)
U.S. BANK NATIONAL ASSOCIATION, formerly known as United States National
Bank of Oregon (Bank)
AGREEMENTS:
1. PROMISE TO PAY. For value received, Borrower promises to pay to Bank,
or its order, the principal amount of Five Million Seven Hundred Sixty Thousand
Dollars ($5,760,000), together with interest thereon at the rates specified in
this note.
2. MAXIMUM PRINCIPAL BALANCE. The maximum unpaid Principal Balance
outstanding on this note, from time to time, shall be the Principal Balance that
would be outstanding if an original Principal Balance of Five Million Seven
Hundred Sixty Thousand Dollars ($5,760,000) were repaid in four (64)
consecutively monthly installments, on the fifteenth (15th) day of each calendar
month commencing September 15, 1998, as follows: Four monthly installments of
Sixty-Five Thousand Dollars ($65,000) each; followed by fifty-nine (59) monthly
installments of Ninety-one Thousand Six Hundred Sixty-Seven Dollars ($91,667)
each; followed by final monthly installment of Ninety-one Thousand Six Hundred
Forty-Seven Dollars ($91,647).
3. PAYMENT OF PRINCIPAL. The Principal Balance of this note shall be
paid in sixty-four (64) monthly installments. The first monthly installment
shall be due and payable on September 15, 1998, and an additional monthly
installment shall be due and payable on the fifteenth (15th) day of every
calendar month thereafter, to and including December 15, 2003, when the unpaid
balance of this note, principal and interest, shall be paid in full. The first
four (4) monthly installments shall be in the amount of Sixty-Five Thousand
Dollars ($65,000) each. The next fifty-nine (59) monthly installments shall be
in the amount of Ninety-one Thousand Six
Page 1-PROMISSORY NOTE
Hundred Sixty-Seven Dollars ($91,667) each. The final monthly installment shall
be in the amount of Ninety-one Thousand Six Hundred Forty-seven Dollars
($91,647). All regularly scheduled payments of principal shall be applied:
3.1. First to any Prime Rate Borrowing Amounts, in such order as
Borrower may designate, or in the absence of such designation, in such order as
Bank may determine in Bank's absolute discretion; and
3.2. Second, to any LIBOR Borrowing Rate Amounts, in such order
as Borrower may designate, or in the absence of such designation, in such order
as Bank may determine in Bank's absolute discretion.
4. INTEREST RATE AND PAYMENT OF INTEREST.
4.1. DEFINITIONS. As used in this note, the following terms have
the following meanings:
a. "Business Day" means any day other than a Saturday,
Sunday or other day that commercial banks in Portland, Oregon, Minneapolis,
Minnesota, or New York, New York, are authorized or required by law to close.
b. "LIBOR Borrowing Rate" means the LIBOR Rate plus two
percent (2%). The LIBOR Borrowing Rate for each LIBOR Borrowing Rate Amount
shall be determined pursuant to Paragraph 4.3., as of the beginning of the
applicable LIBOR Interest Period, based on the then current LIBOR Rate, and,
except as provided in Paragraph 4.4., shall remain fixed during that LIBOR
Interest Period.
c. "LIBOR Borrowing Rate Amount(s)" means those portions
of the Principal Balance that, at any time, are accruing interest at a LIBOR
Borrowing Rate.
d. "LIBOR Interest Period" means, as to any LIBOR
Borrowing Rate Amount, a period of one, two, three or six months commencing on
the date the LIBOR Borrowing Rate becomes applicable; provided, however, that
(1) the first day of such LIBOR Interest Period must be a Business Day; (2) no
LIBOR Interest Period shall be selected which would extend beyond Maturity; (3)
no LIBOR Interest Period shall extend beyond the date of any principal payment
required under this note, unless the sum of the following amounts for this note
equals or exceeds the amount of such principal payment: (i) the Prime Borrowing
Rate Amount for this note, plus (ii) LIBOR Borrowing Rate Amounts for this note
with LIBOR Interest Periods ending on or before the scheduled date of that
principal payment; (4) any LIBOR Interest Period which would otherwise expire on
a day which is not a Business Day, shall be extended to the next succeeding
Business Day, unless the results of such extension would be to extend such LIBOR
Interest Period into another calendar month, in which event the LIBOR Interest
Period shall end on the immediately preceding Business Day; and (5) any LIBOR
Interest Period that begins on the last Business Day of a calendar month (or a
day for which there is no numerically corresponding
Page 2-PROMISSORY NOTE
day in the calendar month at the end of such LIBOR Interest Period) shall end on
the last Business Day of a calendar month.
e. "LIBOR Rate" means, for any LIBOR Interest Period, the
rate per annum (computed on the basis of a 360 day year and the actual number of
days elapsed and rounded upward to the nearest 1/16 of 1%) established by Bank
as its LIBOR Rate, based on Bank's determination, on the basis of such factors
as Bank deems relevant, of the rate of interest at which U.S. dollar deposits
would be offered to Bank in the London interbank market at approximately 11:00
a.m. London time on the date which is two (2) Business Days prior to the first
day of such LIBOR Interest Period for delivery on the first (1st) day of such
LIBOR interest period for the number of months therein; provided, however, that
Bank's LIBOR Rate shall be adjusted to take into account the maximum reserves
required to be maintained for Eurocurrency liabilities by banks during each such
LIBOR Interest Period as specified in Regulation D of the Board of Governors of
the Federal Reserve System or any successor regulation, and the maximum
assessment rate required to be paid by Bank to the Federal Deposit Insurance
Corporation insuring U.S. dollar deposits made at offices of Bank.
f. "Maturity" means the time when the entire unpaid
Principal Balance becomes due and payable, whether by agreement, acceleration or
otherwise.
g. "Prime Borrowing Rate" means the Prime Rate plus
one-half of one percent (0.5%). The Prime Borrowing Rate shall be adjusted
without notice effective on each day the Prime Rate changes.
h. "Prime Rate" means the rate identified and publicly
announced by Bank from time to time as its prime rate and does not necessarily
mean, for example, the lowest rate of interest which Bank collects for any
borrower or group of borrowers.
i. "Prime Borrowing Rate Amount" means that portion of the
Principal Balance that, at any time, is accruing interest at the Prime Borrowing
Rate.
j. "Principal Balance" means, at any time, the unpaid
principal balance of this note.
k. "Related Documents" means, without limitation, all loan
agreements, mortgages, deeds of trust, security agreements, guaranties and all
other instruments, agreements and documents, whether now or hereafter existing,
relating to the indebtedness evidenced by this note.
4.2. PRIME BORROWING RATE. Except for portions of the Principal
Balance that are accruing interest at a LIBOR Borrowing Rate, Borrower shall pay
interest on the Principal Balance at the Prime Borrowing Rate. The Prime
Borrowing Rate shall be adjusted without notice effective on each day the Prime
Rate changes.
Page 3-PROMISSORY NOTE
4.3. LIBOR BORROWING RATE.
a. Borrower may obtain LIBOR Borrowing Rate quotes from
Bank between 8:00 a.m. and 10:00 a.m. (Portland, Oregon, time) on any Business
Day. Borrower may request a new Advance as a LIBOR Borrowing Rate Amount, or
conversion of a portion of the Prime Borrowing Rate Amount to a LIBOR Borrowing
Rate Amount, or a new LIBOR Interest Period for a LIBOR Borrowing Rate Amount
whose LIBOR Interest Period is expiring, only by giving Bank notice in
accordance with Paragraph 4.3.b. not later than 10:00 a.m. on such date.
b. Whenever Borrower desires to use the LIBOR Borrowing
Rate option, Borrower shall give Bank irrevocable notice (either in writing or
orally) between 8:00 a.m. and 10:00 a.m. (Portland, Oregon, time) two (2)
Business Days in advance of the desired effective date of such rate. Any oral
notice shall be given by, and any written notice or confirmation of an oral
notice shall be signed by, a person authorized to execute and deliver promissory
notes to Bank on behalf of Borrower, and shall specify the requested effective
date of the rate, the LIBOR Interest Period, and whether Borrower is requesting
a new Advance as a LIBOR Borrowing Rate Amount, conversion of a portion of the
Prime Borrowing Rate Amount to a LIBOR Borrowing Rate Amount, or a new LIBOR
Interest Period for a LIBOR Borrowing Rate Amount whose LIBOR Interest Period is
expiring. Bank may, but need not, require that all oral notices be confirmed in
writing. Notwithstanding any other term of this note, Borrower may elect a
LIBOR Borrowing Rate Amount only in the minimum principal amount of Five Hundred
Thousand Dollars ($500,000) and in larger integral multiples of One Hundred
Thousand Dollars ($100,000). Except as provided in Paragraph 4.4., the LIBOR
Borrowing Rate for each LIBOR Borrowing Rate Amount shall remain fixed for the
applicable LIBOR Interest Period.
c. If at any time Bank's LIBOR Rate is unascertainable or
unavailable to Bank or if LIBOR Rate loans become unlawful, the option to select
the LIBOR Borrowing Rate shall terminate immediately. If any LIBOR Borrowing
Rates are then in effect (i) each shall terminate automatically with respect to
the applicable LIBOR Borrowing Rate Amount (a) on the last day of the applicable
LIBOR Interest Period, if Bank may lawfully continue to maintain such loans, or
(b) immediately if Bank may not lawfully continue to maintain such loans through
such day, and (ii) the Prime Borrowing Rate automatically shall become effective
as to such amounts upon termination.
d. If at any time after the date of this note (i) any
revision in or adoption of any applicable law, rule or regulation or in the
interpretation or administration thereof (a) shall subject Bank or its
Eurodollar lending office to any tax, duty or other charge, or change the basis
of taxation of payments to Bank with respect to any loans bearing interest based
on Bank's LIBOR Rate or (b) shall impose or modify any reserve, insurance,
special deposit or similar requirements against assets of, deposits with or for
the account of, or credit extended by Bank or its Eurodollar lending office, or
impose on Bank or its Eurodollar lending office any other condition affecting
any such loans, and (ii) the result of the foregoing is (x) to increase the cost
to Bank of making or maintaining any such loans or (y) to reduce the amount of
any sum receivable under this note by Bank or its Eurodollar lending office,
Borrower shall pay Bank
Page 4-PROMISSORY NOTE
within fifteen (15) days after demand by Bank such additional amount as will
compensate Bank for such increased cost or reduction. The determination
hereunder by Bank of such additional amounts shall be conclusive in the absence
of manifest error. If Bank demands compensation under this paragraph, Borrower
may, upon three (3) Business Days' notice to Bank, pay the accrued interest on
all LIBOR Borrowing Rate Amounts as may be affected, together with any
additional amounts payable under Paragraph 4.3.(e). Upon Borrower's paying such
accrued interest and additional costs, the Prime Borrowing Rate immediately
shall be effective with respect to the unpaid principal balance of such LIBOR
Borrowing Rate Amounts.
e. Upon any termination of any LIBOR Borrowing Rate
(including, but not limited to, conversion to another rate) or payment of all or
any portion of any LIBOR Borrowing Rate Amount on a date other than the last day
of the then applicable LIBOR Interest Period, as the case may be, including,
without limitation, (i) voluntary prepayment, (ii) acceleration following an
Event of Default, or (iii) repayment in response to a notice under Paragraph
4.3.d., Borrower shall pay to Bank on demand a yield maintenance charge
calculated pursuant to the attached Exhibit A.
f. If Borrower chooses the LIBOR Borrowing Rate, Borrower
shall pay interest based on such rate, plus any other applicable taxes or
charges hereunder, even though Bank may have obtained the funds loaned to
Borrower from sources other than the applicable London interbank market. Bank's
determination of the LIBOR Borrowing Rate and any such taxes or charges shall be
conclusive in the absence of manifest error.
g. Notwithstanding any other term of this note, Borrower
may not select the LIBOR Borrowing Rate if an event has occurred that
constitutes an Event of Default or which, with notice or lapse of time, or both,
would be an Event of Default.
4.4. DEFAULT INTEREST RATE. Notwithstanding anything in this
note to the contrary, upon the occurrence of an Event of Default, the Prime
Borrowing Rate Amount shall thereafter accrue interest at a Prime Borrowing Rate
equal to the Prime Rate plus five and one-half percent (5.5%), and each
outstanding LIBOR Borrowing Rate Amount shall accrue interest at a LIBOR
Borrowing Rate equal to the LIBOR Rate previously determined by Bank for that
LIBOR Borrowing Rate Amount plus seven percent (7%).
4.5. PAYMENT OF INTEREST. Borrower shall pay accrued interest on
the fifteenth (15th) day of September, 1998 and on the fifteenth (15th) day of
every calendar month thereafter. In addition, with respect to all LIBOR
Borrowing Rate Amounts, accrued interest shall be paid on the last day of the
applicable LIBOR Interest Period.
4.6. COMPUTATION OF INTEREST. All interest will be computed at
the applicable rate based on a three hundred sixty (360) day year and applied to
the actual number of days elapsed.
Page 5-PROMISSORY NOTE
4.7. USURY. Notwithstanding anything in this note to the
contrary, at no time shall the Prime Borrowing Rate or any LIBOR Borrowing Rate
exceed the maximum rate permitted by applicable law.
5. PREPAYMENT. Prepayment may be made in whole or in part at any time.
All prepayments shall be applied:
5.1. First to any Prime Rate Borrowing Amounts, in such order as
Borrower may designate, or in the absence of such designation, in such order as
Bank may determine in Bank's absolute discretion;
5.2. Second, to any LIBOR Borrowing Rate Amounts, in such order
as Borrower may designate, or in the absence of such designation, in such order
as Bank may determine in Bank's absolute discretion; and
5.3. Then to accrued interest.
Prepayments of principal shall be applied to the remaining installments of
principal in the order of their maturity.
6. LINE OF CREDIT. This note evidences a reducing revolving line of
credit. Advances under this note may be requested orally by Borrower or by an
authorized person. Bank may, but need not, require that all oral requests be
confirmed in writing. All communications, instructions or directions by
telephone or otherwise to Bank are to be directed to the Eugene office of Bank's
Corporate Banking Division. Borrower agrees to be liable for all sums either
(a) advanced in accordance with the instructions of an authorized person or (b)
credited to any of Borrower's accounts with Bank, regardless of the fact that
persons other than those authorized to borrow have authority to draw against the
accounts. The Principal Balance may be evidenced by endorsements on this note
or by Bank's internal records, including daily computer printouts. To the
extent Borrower's obligation to pay monthly installments of principal has been
discharged as a result of prepayments pursuant to Paragraph 5., future advances
under this note shall reinstate the obligation to pay those installments in the
inverse order of their maturity. Accordingly, Borrower's obligation to pay
monthly installments of principal shall not recommence until such time as those
monthly installments must recommence in order for Borrower to pay this note in
full not later than December 15, 2003, assuming all payments are made precisely
when due. Bank will have no obligation to advance funds under this note if an
Event of Default, or an event which, with notice or lapse of time, or both,
would be an Event of Default, has occurred or will occur as a result of making
such advance.
7. LATE CHARGE. If a payment is nineteen (19) or more days past due,
Borrower will pay a late charge of five percent (5%) of the delinquent payment,
but not more than the maximum amount authorized by law.
Page 6-PROMISSORY NOTE
8. DEFAULT. Each of the following shall constitute an Event of Default
under this note:
8.1. Borrower fails to make any payment within ten (10) days
after it is due.
8.2. Any default under any Related Document or under any other
agreement between Bank and Borrower.
9. ACCELERATION. Upon any Event of Default, Bank may, without notice,
declare the entire Principal Balance and all accrued interest immediately due
and payable.
10. NOTICES. Any notices required or permitted to be given under the
terms of this note shall be in writing and may be given by personal delivery;
first-class mail; certified mail, return receipt requested; or nationally
recognized overnight courier; directed to the parties at the following
addresses, or such other address as any party may designate in writing prior to
the time of the giving of such notice, or in any other manner authorized by law:
Borrower: 0000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxx
Bank: Oregon Corporate Banking
000 X.X. Xxx
XX-0 Corporate Loan Servicing Center
Xxxxxxxx, XX 00000
With a copy to: Attn: Xxxxx Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
Any notice given shall be effective when actually received; or if given by
certified mail, then forty-eight (48) hours after deposit of such notice in the
United States mail with postage prepaid; or if given by overnight courier, then
twenty-four (24) hours after the deposit of such notice with the overnight
courier with delivery charges prepaid.
11. ARBITRATION. Bank and Borrower agree that all disputes, claims and
controversies between them, whether individual, joint, or class in nature,
relating in any way to this note or the Related Documents, including without
limitation contract and tort disputes, shall be arbitrated pursuant to the Rules
of the American Arbitration Association, upon request of either party. No act
to take or dispose of any collateral shall constitute a waiver of this
arbitration provision or be prohibited by this arbitration provision. This
includes, without limitation, obtaining injunctive relief or a temporary
restraining order; foreclosing by notice and sale under any deed of trust or
mortgage; obtaining a writ of attachment or imposition of a receiver; or
exercising any rights relating to personal property, including taking or
disposing of such property
Page 7-PROMISSORY NOTE
with or without judicial process pursuant to Article 9 of the Uniform Commercial
Code. Any disputes, claims, or controversies concerning the lawfulness or
reasonableness or any act, or exercise of any right, concerning any collateral,
including any claim to rescind, reform, or otherwise modify any agreement
relating to the collateral, shall also be arbitrated, provided, however, that no
arbitrator shall have the right or other power to enjoin or restrain any act of
any party. Judgment upon any award rendered by any arbitrator may be entered in
any court having jurisdiction. Nothing herein shall preclude any party from
seeking equitable relief from a court of competent jurisdiction. The statute of
limitations, estoppel, waiver, laches, and similar doctrines which would
otherwise be applicable in any action brought by a party shall be applicable in
any arbitration proceeding, and the commencement of any arbitration proceeding
shall be deemed the commencement of any action for these purposes. The Federal
Arbitration Act shall apply to the construction, interpretation, and enforcement
of this arbitration provision.
12. COLLECTION COSTS AND ATTORNEY FEES. Borrower agrees to pay upon
demand all of Bank's reasonable costs and expenses, including attorneys' fees
and Bank's legal expenses, incurred in connection with the enforcement of this
note. Costs and expenses include Bank's attorneys' fees and legal expenses
whether or not there is a lawsuit, including attorneys' fees and legal expenses
for bankruptcy proceedings (and including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post-judgment
collection services. Borrower also shall pay all court costs and such
additional fees as may be directed by the court.
13. WAIVERS. Each maker, co-maker, endorser or guarantor of this note,
waives diligence, demand, presentment for payment, notice of non-payment,
protest and notice of protest and consents to all extensions of time and
renewals hereof, whether or not the extensions or renewals are longer than the
original period of the note, to any exchange or release of any security for the
indebtedness evidenced by this note, and to any release of any party liable on
this note or any Related Document.
14. GENERAL PROVISIONS. Time is of the essence of this note. All
obligations of any maker, co-maker, endorser or guarantor of this note are joint
and several. This note shall be governed by and construed and enforced in
accordance with the laws of the State of Oregon without regard to conflicts of
law principles. Bank's rights and remedies under this note and under any
Related Documents are cumulative.
15. EXECUTION BY FACSIMILE; COUNTERPARTS. This note may be executed in
several counterparts, each of which will be deemed to be an original and all
of which together constitute one and the same instrument. Delivery of an
executed copy of this note by telecopy, telex or other means of electronic
communication producing a printed copy will be deemed to be an execution and
delivery of this note on the date of such communication by the parties so
delivering such a copy. The party so delivering such a copy via electronic
communication shall deliver an executed original of this note to the other
party within one week of the date of delivery of the copy sent via electronic
communication.
Page 8-PROMISSORY NOTE
16. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY
BANK AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH
ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE
BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY
BANK TO BE ENFORCEABLE.
XXXX MEDIA CORPORATION
By: /s/ Xxxxx Xxxx
----------------------------------
Xxxxx Xxxx, President
XXXX MEDIA LTD.
By: /s/ Xxxxx Xxxx
----------------------------------
Xxxxx Xxxx, Treasurer
XXXXXXX & XXXXX, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx, President
U.S. BANK NATIONAL ASSOCIATION, formerly known as
United States National Bank of Oregon
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Xxxxx Xxxxxxx, Vice President
Page 9-PROMISSORY NOTE
YIELD MAINTENANCE - LIBOR
Subject to the terms of the Note of which this exhibit is a part, Borrower may
prepay the principal balance in whole or in part on any payment due date by
paying, in addition to the principal payment, accrued interest and any other
sums due Lender at the time of prepayment, a yield maintenance charge ("YMC") as
determined by the following formula and if YMC is greater than zero:
YMC = p x (i - y) x f
Where:
p = the prepaid principal amount
i = the current interest rate on the Note
y = the most current yield rate ("Yield Rate") on Lender's LIBOR Base Rate*
as defined in the Note for the LIBOR Period* most closely matching the
term from the date of prepayment to the end of the Yield Maintenance
Period.
n = a fraction wherein the numerator is the number of days from the date of
prepayment to the end of the Yield Maintenance Period and the
denominator is 360.
-n
1 - (1 + y)
f = present value factor = ------------
y
"Yield Maintenance Period" means the time period from the date of prepayment to
the earlier of the next scheduled interest rate adjustment date as defined in
the Note or the maturity date of the Note.
If Borrower shall submit a payment amount in excess of the principal, interest
and other amounts due Lender, the allocation of principal and YMC shall be
calculated based on the following formula:
a = p + YMC
Where:
a = the excess amount to be applied
a
p = the prepaid principal amount = ----------------
f x (i - y) + 1
YMC = a - p
f, i and y have the same meaning as stated above.
Except as provided in the next sentence, any partial prepayment of the
outstanding balance shall not extend the due date of any subsequent monthly
installments or change the amount of such installments, unless Lender shall
otherwise agree in writing. Upon any partial prepayment, Lender shall have the
option, in its sole and absolute discretion, to recalculate the monthly
installments due under the Note so that the amortization period remains the
same.
Borrower shall pay the YMC due under this exhibit whether the prepayment is
voluntary or involuntary (in connection with Lender's acceleration of the unpaid
principal balance of the Note) or Lender's deed of trust securing the Note is
satisfied or released by foreclosure (whether by power of sale or judicial
proceeding), deed in lieu of foreclosure or by any other means. Notwithstanding
any other provision herein to the contrary, Borrower shall not be required to
pay any YMC in connection with any prepayment occurring as a result of the
application of insurance proceeds or condemnation awards under Lender's deed of
Trust.
Should the LIBOR Base Rate not be available or discontinued, Lender shall choose
a comparable index in its sole and absolute discretion.
Lender's determination of the Yield Rate, LIBOR Base Rate, Yield Maintenance
Period and calculation of the formulas contained herein shall be conclusive
absent manifest error.
* For purposes of this exhibit, "LIBOR Base Rate" means "LIBOR Rate"; and "LIBOR
Period" means "LIBOR Interest Period."
Yield Maintenance - LIBOR EXHIBIT A
PROMISSORY NOTE
(1998/1999 Construction Note)
$302,000 Eugene, Oregon September 1, 1998
PARTIES:
XXXX MEDIA CORPORATION, an Oregon corporation (Xxxx)
XXXX MEDIA LTD., a British Columbia corporation (Obie BC)
XXXXXXX & XXXXX, INC., a New York corporation (P&C)
(Xxxx, Xxxx BC and P&C, individually and jointly, are referred to in this
note as Borrower)
U.S. BANK NATIONAL ASSOCIATION, formerly known as United States National
Bank of Oregon (Bank)
AGREEMENTS:
1. PROMISE TO PAY. Upon demand, for value received, Borrower promises to
pay to Bank, or its order, the principal amount of Three Hundred Two Thousand
United States Dollars ($302,000), or so much as may be outstanding, together
with interest on the unpaid principal balance of each advance at the rate
specified in this note. Interest shall be calculated from the date of each
advance until repayment of each advance.
2. PAYMENT OF PRINCIPAL. Borrower shall pay the Principal Balance of
this note upon demand.
3. INTEREST RATE AND PAYMENT OF INTEREST.
3.1. DEFINITIONS. As used in this note, the following terms have the
following meanings:
a. "Prime Borrowing Rate" means a variable interest rate equal
to the Prime Rate plus one-half of one percent (0.5%).
b. "Prime Rate" means the rate identified and publicly
announced by Bank from time to time as its prime rate and does not necessarily
mean, for example, the lowest rate of interest which Bank collects for any
borrower or group of borrowers.
Page 1-PROMISSORY NOTE
c. "Principal Balance" means, at any time, the unpaid principal
balance of this note.
d. "Related Documents" means, without limitation, all loan
agreements, mortgages, deeds of trust, security agreements, guaranties and all
other instruments, agreements and documents, whether now or hereafter existing,
relating to the indebtedness evidenced by this note.
3.2. PRIME BORROWING RATE. Borrower shall pay interest on the
Principal Balance at the Prime Borrowing Rate. The Prime Borrowing Rate shall
be adjusted without notice effective on each day the Prime Rate changes.
3.3. DEFAULT INTEREST RATE. Notwithstanding anything in this note to
the contrary, upon the occurrence of an Event of Default, the Principal Balance
shall thereafter accrue interest at a variable interest rate equal to the Prime
Rate plus five and one-half percent (5.5%).
3.4. PAYMENT OF INTEREST. Borrower shall pay accrued interest on the
fifteenth (15th) day of September, 1998, and on the fifteenth (15th) day of
every calendar month thereafter, and upon demand.
3.5. COMPUTATION OF INTEREST. All interest will be computed at the
applicable rate based on a three hundred sixty (360) day year and applied to the
actual number of days elapsed.
3.6. USURY. Notwithstanding anything in this note to the contrary, at
no time shall the Prime Borrowing Rate exceed the maximum rate permitted by
applicable law.
4. PREPAYMENT. Prepayment may be made in whole or in part at any time.
All prepayments shall be applied first to the Principal Balance and then to
accrued interest.
5. LINE OF CREDIT. This note evidences a non-revolving construction line
of credit. Advances under this note may be requested orally by Borrower or by
an authorized person. Bank may, but need not, require that all oral requests be
confirmed in writing. All communications, instructions or directions by
telephone or otherwise to Bank are to be directed to the Xxxxxx office of Bank's
Corporate Banking Division. Borrower agrees to be liable for all sums either
(a) advanced in accordance with the instructions of an authorized person or
(b) credited to any of Borrower's accounts with Bank, regardless of the fact
that persons other than those authorized to borrow have authority to draw
against the accounts. The Principal Balance may be evidenced by endorsements on
this note or by Bank's internal records, including daily computer printouts.
Bank will have no obligation to advance funds under this note if an Event of
Default, or an event which, with notice or lapse of time, or both, would be an
Event of Default, has occurred or will occur as a result of making the advance,
or if Bank has demanded payment of the Principal Balance and accrued interest.
Page 2-PROMISSORY NOTE
6. DEFAULT. Each of the following shall constitute an Event of Default
under this note:
6.1. Borrower fails to make any payment within ten (10) days after it
is due.
6.2. Any default under any Related Document or under any other
agreement between Bank and Borrower.
7. LATE CHARGE. If a payment is nineteen (19) days or more past due,
Borrower will be charged a late charge of five percent (5.0%) of the delinquent
payment. This right is in addition to Bank's other rights, including, without
limitation, Bank's acceleration rights.
8. NOTICES. Any notices required or permitted to be given under the
terms of this note shall be in writing and may be given by personal delivery;
first-class mail; certified mail, return receipt requested; or nationally
recognized overnight courier; directed to the parties at the following
addresses, or such other address as any party may designate in writing prior to
the time of the giving of such notice, or in any other manner authorized by law:
Borrower: 0000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxxx 00000
Attention: Xx. Xxxxx Xxxx
Bank: Oregon Corporate Banking
000 X.X. Xxx
XX-0 Corporate Loan Servicing Center
Xxxxxxxx, Xxxxxx 00000
With a copy to: Attention: Xxxxx Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxxx 00000
Any notice given shall be effective when actually received; or if given by
certified mail, then forty-eight (48) hours after deposit of such notice in the
United States mail with postage prepaid; or if given by overnight courier, then
twenty-four (24) hours after the deposit of such notice with the overnight
courier with delivery charges prepaid.
9. ARBITRATION. Bank and Borrower agree that all disputes, claims and
controversies between them, whether individual, joint, or class in nature,
relating in any way to this note or the Related Documents, including without
limitation contract and tort disputes, shall be arbitrated pursuant to the Rules
of the American Arbitration Association, upon request of either party. No act
to take or dispose of any collateral shall constitute a waiver of this
arbitration provision or be prohibited by this arbitration provision. This
includes, without limitation,
Page 3-PROMISSORY NOTE
obtaining injunctive relief or a temporary restraining order; foreclosing by
notice and sale under any deed of trust or mortgage; obtaining a writ of
attachment or imposition of a receiver; or exercising any rights relating to
personal property, including taking or disposing of such property with or
without judicial process pursuant to Article 9 of the Uniform Commercial Code.
Any disputes, claims, or controversies concerning the lawfulness or
reasonableness or any act, or exercise of any right, concerning any collateral,
including any claim to rescind, reform, or otherwise modify any agreement
relating to the collateral, shall also be arbitrated, provided, however, that no
arbitrator shall have the right or other power to enjoin or restrain any act of
any party. Judgment upon any award rendered by any arbitrator may be entered in
any court having jurisdiction. Nothing herein shall preclude any party from
seeking equitable relief from a court of competent jurisdiction. The statute of
limitations, estoppel, waiver, laches, and similar doctrines which would
otherwise be applicable in any action brought by a party shall be applicable in
any arbitration proceeding, and the commencement of any arbitration proceeding
shall be deemed the commencement of any action for these purposes. The Federal
Arbitration Act shall apply to the construction, interpretation, and enforcement
of this arbitration provision.
10. COLLECTION COSTS AND ATTORNEY FEES. Borrower agrees to pay upon
demand all of Bank's reasonable costs and expenses, including attorneys' fees
and Bank's legal expenses, incurred in connection with the enforcement of this
note. Costs and expenses include Bank's attorneys' fees and legal expenses
whether or not there is a lawsuit, including attorneys' fees and legal expenses
for bankruptcy proceedings (and including efforts to modify or vacate any
automatic stay or injunction), appeals and any anticipated post-judgment
collection services. Borrower also shall pay all court costs and such
additional fees as may be directed by the court.
11. WAIVERS. Each maker, co-maker, endorser or guarantor of this note
waives diligence, demand, presentment for payment, notice of non-payment,
protest and notice of protest and consents to all extensions of time and
renewals hereof, whether or not the extensions or renewals are longer than the
original period of the note, to any exchange or release of any security for the
indebtedness evidenced by this note, and to any release of any party liable on
this note or any Related Document.
12. GENERAL PROVISIONS. Time is of the essence of this note. All
obligations of any maker, co-maker, endorser or guarantor of this note are joint
and several. This note shall be governed by and construed and enforced in
accordance with the laws of the State of Oregon without regard to conflicts of
law principles. Bank's rights and remedies under this note and under any
Related Documents are cumulative.
13. EXECUTION BY FACSIMILE; COUNTERPARTS. This note may be executed in
several counterparts, each of which will be deemed to be an original and all of
which together constitute one and the same instrument. Delivery of an executed
copy of this note by telecopy, telex or other means of electronic communication
producing a printed copy will be deemed to be an execution and delivery of this
note on the date of such communication by the parties so delivering such a copy.
The party so delivering such a copy via electronic communication shall
Page 4-PROMISSORY NOTE
deliver an executed original of this note to the other party within one week of
the date of delivery of the copy sent via electronic communication.
14. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY
BANK AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH
ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE
BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY
BANK TO BE ENFORCEABLE.
XXXX MEDIA CORPORATION
By: /s/ Xxxxx Xxxx
---------------------------------------
Xxxxx Xxxx, President
XXXX MEDIA LTD.
By: /s/ Xxxxx Xxxx
---------------------------------------
Xxxxx Xxxx, Treasurer
XXXXXXX & COINE, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxx, President
U.S. BANK NATIONAL ASSOCIATION, formerly known as
United States National Bank of Oregon
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx, Vice President
Page 5-PROMISSORY NOTE
PROMISSORY NOTE
(MO Partners Note)
$689,690.48 Eugene, Oregon September 1, 1998
PARTIES:
XXXX MEDIA CORPORATION, an Oregon corporation (Xxxx)
XXXX MEDIA LTD., a British Columbia corporation (Obie BC)
XXXXXXX & XXXXX, INC., a New York corporation (P&C)
(Xxxx, Xxxx BC and P&C, individually and jointly, are referred to in this
note as Borrower)
U.S. BANK NATIONAL ASSOCIATION, formerly known as United States National
Bank of Oregon (Bank)
AGREEMENTS:
1. PROMISE TO PAY. For value received, Borrower promises to pay to Bank,
or its order, the principal amount of Six Hundred Eighty-nine Thousand Six
Hundred Ninety Dollars and Forty-eight Cents in United States Dollars
($689,690.48), together with interest thereon at the rates specified in this
note.
2. PAYMENT OF PRINCIPAL. The Principal Balance of this note shall be
paid in eighty-three (83) monthly installments. The first eighty-two (82)
monthly installments shall be in the amount of Eight Thousand Three Hundred Nine
Dollars and Fifty-two Cents ($8,309.52) each. The final monthly installment
shall be in the amount of Eight Thousand Three Hundred Nine Dollars and
Eighty-four Cents ($8,309.84). The first (1st) monthly installment shall be due
and payable on September 15, 1998, and an additional monthly installment shall
be due and payable on the fifteenth (15th) day of every calendar month
thereafter, to and including July 15, 2005, when the unpaid balance of this
note, principal and interest, shall be paid in full. All regularly scheduled
payments of principal shall be applied:
2.1. First to any Prime Rate Borrowing Amounts, in such order as
Borrower may designate, or in the absence of such designation, in such order as
Bank may determine in Bank's absolute discretion; and
2.2. Second, to any LIBOR Borrowing Rate Amounts, in such order as
Borrower may designate, or in the absence of such designation, in such order as
Bank may determine in Bank's absolute discretion.
Page 1-PROMISSORY NOTE
3. INTEREST RATE AND PAYMENT OF INTEREST.
3.1. DEFINITIONS. As used in this note, the following terms have
the following meanings:
a. "Business Day" means any day other than a Saturday,
Sunday or other day that commercial banks in Portland, Oregon, Minneapolis,
Minnesota, or New York, New York, are authorized or required by law to close.
b. "LIBOR Borrowing Rate" means the LIBOR Rate plus two
percent (2%). The LIBOR Borrowing Rate for each LIBOR Borrowing Rate Amount
shall be determined pursuant to Paragraph 3.3., as of the beginning of the
applicable LIBOR Interest Period, based on the then current LIBOR Rate, and,
except as provided in Paragraph 3.4., shall remain fixed during that LIBOR
Interest Period.
c. "LIBOR Borrowing Rate Amount(s)" means those portions of
the Principal Balance that, at any time, are accruing interest at a LIBOR
Borrowing Rate.
d. "LIBOR Interest Period" means, as to any LIBOR Borrowing
Rate Amount, a period of one, two, three or six months commencing on the date
the LIBOR Borrowing Rate becomes applicable; provided, however, that (1) the
first day of such LIBOR Interest Period must be a Business Day; (2) no LIBOR
Interest Period shall be selected which would extend beyond Maturity; (3) no
LIBOR Interest Period shall extend beyond the date of any principal payment
required under this note, unless the sum of the following amounts for this note
equals or exceeds the amount of such principal payment: (i) the Prime Borrowing
Rate Amount for this note, plus (ii) LIBOR Borrowing Rate Amounts for this note
with LIBOR Interest Periods ending on or before the scheduled date of that
principal payment; (4) any LIBOR Interest Period which would otherwise expire on
a day which is not a Business Day, shall be extended to the next succeeding
Business Day, unless the results of such extension would be to extend such LIBOR
Interest Period into another calendar month, in which event the LIBOR Interest
Period shall end on the immediately preceding Business Day; and (5) any LIBOR
Interest Period that begins on the last Business Day of a calendar month (or a
day for which there is no numerically corresponding day in the calendar month at
the end of such LIBOR Interest Period) shall end on the last Business Day of a
calendar month.
e. "LIBOR Rate" means, for any LIBOR Interest Period, the
rate per annum (computed on the basis of a 360 day year and the actual number of
days elapsed and rounded upward to the nearest 1/16 of 1%) established by Bank
as its LIBOR Rate, based on Bank's determination, on the basis of such factors
as Bank deems relevant, of the rate of interest at which U.S. dollar deposits
would be offered to Bank in the London interbank market at approximately 11:00
a.m. London time on the date which is two (2) Business Days prior to the first
day of such LIBOR Interest Period for delivery on the first (1st) day of such
LIBOR interest period for the number of months therein; provided, however, that
Bank's LIBOR Rate shall be adjusted to take into account the maximum reserves
required to be maintained for Eurocurrency liabilities by banks during each such
LIBOR Interest Period as specified in Regulation D of the Board of Governors of
Page 2-PROMISSORY NOTE
the Federal Reserve System or any successor regulation, and the maximum
assessment rate required to be paid by Bank to the Federal Deposit Insurance
Corporation insuring U.S. dollar deposits made at offices of Bank.
f. "Maturity" means the time when the entire unpaid
Principal Balance becomes due and payable, whether by agreement, acceleration or
otherwise.
g. "Prime Borrowing Rate" means the Prime Rate plus one-half
of one percent (0.5%). The Prime Borrowing Rate shall be adjusted without
notice effective on each day the Prime Rate changes.
h. "Prime Rate" means the rate identified and publicly
announced by Bank from time to time as its prime rate and does not necessarily
mean, for example, the lowest rate of interest which Bank collects for any
borrower or group of borrowers.
i. "Prime Borrowing Rate Amount" means that portion of the
Principal Balance that, at any time, is accruing interest at the Prime Borrowing
Rate.
j. "Principal Balance" means, at any time, the unpaid
principal balance of this note.
k. "Related Documents" means, without limitation, all loan
agreements, mortgages, deeds of trust, security agreements, guaranties and all
other instruments, agreements and documents, whether now or hereafter existing,
relating to the indebtedness evidenced by this note.
3.2. PRIME BORROWING RATE. Except for portions of the Principal
Balance that are accruing interest at a LIBOR Borrowing Rate, Borrower shall pay
interest on the Principal Balance at the Prime Borrowing Rate. The Prime
Borrowing Rate shall be adjusted without notice effective on each day the Prime
Rate changes.
3.3. LIBOR BORROWING RATE.
a. Borrower may obtain LIBOR Borrowing Rate quotes from Bank
between 8:00 a.m. and 10:00 a.m. (Portland, Oregon, time) on any Business Day.
Borrower may request a new Advance as a LIBOR Borrowing Rate Amount, or
conversion of a portion of the Prime Borrowing Rate Amount to a LIBOR Borrowing
Rate Amount, or a new LIBOR Interest Period for a LIBOR Borrowing Rate Amount
whose LIBOR Interest Period is expiring, only by giving Bank notice in
accordance with Paragraph 3.3.b. not later than 10:00 a.m. on such date.
b. Whenever Borrower desires to use the LIBOR Borrowing Rate
option, Borrower shall give Bank irrevocable notice (either in writing or
orally) between 8:00 a.m. and 10:00 a.m. (Portland, Oregon, time) two (2)
Business Days in advance of the desired effective date of such rate. Any oral
notice shall be given by, and any written notice or confirmation of an oral
notice shall be signed by, a person authorized to execute and deliver promissory
notes to Bank on behalf of Borrower, and shall specify the requested effective
date of the rate, the LIBOR Interest Period, and
Page 3-PROMISORRY NOTE
whether Borrower is requesting a new Advance as a LIBOR Borrowing Rate Amount,
conversion of a portion of the Prime Borrowing Rate Amount to a LIBOR Borrowing
Rate Amount, or a new LIBOR Interest Period for a LIBOR Borrowing Rate Amount
whose LIBOR Interest Period is expiring. Bank may, but need not, require that
all oral notices be confirmed in writing. Notwithstanding any other term of
this note, Borrower may elect a LIBOR Borrowing Rate Amount only in the minimum
principal amount of Five Hundred Thousand Dollars ($500,000) and in larger
integral multiples of One Hundred Thousand Dollars ($100,000). Except as
provided in Paragraph 3.4., the LIBOR Borrowing Rate for each LIBOR Borrowing
Rate Amount shall remain fixed for the applicable LIBOR Interest Period.
c. If at any time Bank's LIBOR Rate is unascertainable or
unavailable to Bank or if LIBOR Rate loans become unlawful, the option to select
the LIBOR Borrowing Rate shall terminate immediately. If any LIBOR Borrowing
Rates are then in effect (i) each shall terminate automatically with respect to
the applicable LIBOR Borrowing Rate Amount (a) on the last day of the applicable
LIBOR Interest Period, if Bank may lawfully continue to maintain such loans, or
(b) immediately if Bank may not lawfully continue to maintain such loans through
such day, and (ii) the Prime Borrowing Rate automatically shall become effective
as to such amounts upon termination.
d. If at any time after the date of this note (i) any
revision in or adoption of any applicable law, rule or regulation or in the
interpretation or administration thereof (a) shall subject Bank or its
Eurodollar lending office to any tax, duty or other charge, or change the basis
of taxation of payments to Bank with respect to any loans bearing interest based
on Bank's LIBOR Rate or (b) shall impose or modify any reserve, insurance,
special deposit or similar requirements against assets of, deposits with or for
the account of, or credit extended by Bank or its Eurodollar lending office, or
impose on Bank or its Eurodollar lending office any other condition affecting
any such loans, and (ii) the result of the foregoing is (x) to increase the cost
to Bank of making or maintaining any such loans or (y) to reduce the amount of
any sum receivable under this note by Bank or its Eurodollar lending office,
Borrower shall pay Bank within fifteen (15) days after demand by Bank such
additional amount as will compensate Bank for such increased cost or reduction.
The determination hereunder by Bank of such additional amounts shall be
conclusive in the absence of manifest error. If Bank demands compensation under
this paragraph, Borrower may, upon three (3) Business Days' notice to Bank, pay
the accrued interest on all LIBOR Borrowing Rate Amounts as may be affected,
together with any additional amounts payable under Paragraph 3.3.e. Upon
Borrower's paying such accrued interest and additional costs, the Prime
Borrowing Rate immediately shall be effective with respect to the unpaid
principal balance of such LIBOR Borrowing Rate Amounts.
e. Upon any termination of any LIBOR Borrowing Rate
(including, but not limited to, conversion to another rate) or payment of all or
any portion of any LIBOR Borrowing Rate Amount on a date other than the last day
of the then applicable LIBOR Interest Period, as the case may be, including,
without limitation, (i) voluntary prepayment, (ii) acceleration following an
Event of Default, or (iii) repayment in response to a notice under Paragraph
3.3.d., Borrower shall pay to Bank on demand a yield maintenance charge
calculated pursuant to the attached Exhibit A.
Page 4-PROMISSORY NOTE
f. If Borrower chooses the LIBOR Borrowing Rate, Borrower
shall pay interest based on such rate, plus any other applicable taxes or
charges hereunder, even though Bank may have obtained the funds loaned to
Borrower from sources other than the applicable London interbank market. Bank's
determination of the LIBOR Borrowing Rate and any such taxes or charges shall be
conclusive in the absence of manifest error.
g. Notwithstanding any other term of this note, Borrower may
not select the LIBOR Borrowing Rate if an event has occurred that constitutes an
Event of Default or which, with notice or lapse of time, or both, would be an
Event of Default.
3.4. DEFAULT INTEREST RATE. Notwithstanding anything in this note
to the contrary, upon the occurrence of an Event of Default, the Prime Borrowing
Rate Amount shall thereafter accrue interest at a Prime Borrowing Rate equal to
the Prime Rate plus five and one-half percent (5.5%), and each outstanding LIBOR
Borrowing Rate Amount shall accrue interest at a LIBOR Borrowing Rate equal to
the LIBOR Rate previously determined by Bank for that LIBOR Borrowing Rate
Amount plus seven percent (7%).
3.5. PAYMENT OF INTEREST. Borrower shall pay accrued interest on
the fifteenth (15th) day of September, 1998, and on the fifteenth (15th) day of
every calendar month thereafter. In addition, with respect to all LIBOR
Borrowing Rate Amounts, accrued interest shall be paid on the last day of the
applicable LIBOR Interest Period.
3.6. COMPUTATION OF INTEREST. All interest will be computed at the
applicable rate based on a three hundred sixty (360) day year and applied to the
actual number of days elapsed.
3.7. USURY. Notwithstanding anything in this note to the contrary,
at no time shall the Prime Borrowing Rate or any LIBOR Borrowing Rate exceed the
maximum rate permitted by applicable law.
4. PREPAYMENT. Prepayment may be made in whole or in part at any time.
All prepayments shall be applied:
4.1. First to any Prime Rate Borrowing Amounts, in such order as
Borrower may designate, or in the absence of such designation, in such order as
Bank may determine in Bank's absolute discretion;
4.2. Second, to any LIBOR Borrowing Rate Amounts, in such order as
Borrower may designate, or in the absence of such designation, in such order as
Bank may determine in Bank's absolute discretion; and
4.3. Then to accrued interest.
Prepayments of principal shall be applied to the remaining installments of
principal in the inverse order of maturity.
Page 5-PROMISSORY NOTE
5. LATE CHARGE. If a payment is nineteen (19) or more days past due,
Borrower will pay a late charge of five percent (5%) of the delinquent payment,
but not more than the maximum amount authorized by law.
6. DEFAULT. Each of the following shall constitute an Event of Default
under this note:
6.1. Borrower fails to make any payment within ten (10) days after
it is due.
6.2. Any default under any Related Document or under any other
agreement between Bank and Borrower.
7. ACCELERATION. Upon any Event of Default, Bank may, without notice,
declare the entire Principal Balance and all accrued interest immediately due
and payable.
8. NOTICES. Any notices required or permitted to be given under the
terms of this note shall be in writing and may be given by personal delivery;
first-class mail; certified mail, return receipt requested; or nationally
recognized overnight courier; directed to the parties at the following
addresses, or such other address as any party may designate in writing prior to
the time of the giving of such notice, or in any other manner authorized by law:
Borrower: 0000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxx
Bank: Oregon Corporate Banking
000 X.X. Xxx
XX-0 Corporate Loan Servicing Center
Xxxxxxxx, XX 00000
With a copy to: Attention: Xxxxx Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
Any notice given shall be effective when actually received; or if given by
certified mail, then forty-eight (48) hours after deposit of such notice in the
United States mail with postage prepaid; or if given by overnight courier, then
twenty-four (24) hours after the deposit of such notice with the overnight
courier with delivery charges prepaid.
9. ARBITRATION. Bank and Borrower agree that all disputes, claims and
controversies between them, whether individual, joint, or class in nature,
relating in any way to this note or the Related Documents, including without
limitation contract and tort disputes, shall be arbitrated pursuant to the Rules
of the American Arbitration Association, upon request of either party. No act
to take or dispose of any collateral shall constitute a waiver of this
arbitration provision or be prohibited by this arbitration provision. This
includes, without limitation, obtaining injunctive relief or a temporary
restraining order; foreclosing by notice and sale under any deed of trust or
Page 6-PROMISSORY NOTE
mortgage; obtaining a writ of attachment or imposition of a receiver; or
exercising any rights relating to personal property, including taking or
disposing of such property with or without judicial process pursuant to Article
9 of the Uniform Commercial Code. Any disputes, claims, or controversies
concerning the lawfulness or reasonableness or any act, or exercise of any
right, concerning any collateral, including any claim to rescind, reform, or
otherwise modify any agreement relating to the collateral, shall also be
arbitrated, provided, however, that no arbitrator shall have the right or other
power to enjoin or restrain any act of any party. Judgment upon any award
rendered by any arbitrator may be entered in any court having jurisdiction.
Nothing herein shall preclude any party from seeking equitable relief from a
court of competent jurisdiction. The statute of limitations, estoppel, waiver,
laches, and similar doctrines which would otherwise be applicable in any action
brought by a party shall be applicable in any arbitration proceeding, and the
commencement of any arbitration proceeding shall be deemed the commencement of
any action for these purposes. The Federal Arbitration Act shall apply to the
construction, interpretation, and enforcement of this arbitration provision.
10. COLLECTION COSTS AND ATTORNEY FEES. Borrower agrees to pay upon
demand all of Bank's reasonable costs and expenses, including attorneys' fees
and Bank's legal expenses, incurred in connection with the enforcement of this
note. Costs and expenses include Bank's attorneys' fees and legal expenses
whether or not there is a lawsuit, including attorneys' fees and legal expenses
for bankruptcy proceedings (and including efforts to modify or vacate any
automatic stay or injunction), appeals and any anticipated post-judgment
collection services. Borrower also shall pay all court costs and such
additional fees as may be directed by the court.
11. WAIVERS. Each maker, co-maker, endorser or guarantor of this note
waives diligence, demand, presentment for payment, notice of non-payment,
protest and notice of protest and consents to all extensions of time and
renewals hereof, whether or not the extensions or renewals are longer than the
original period of the note, to any exchange or release of any security for the
indebtedness evidenced by this note, and to any release of any party liable on
this note or any Related Document.
12. GENERAL PROVISIONS. Time is of the essence of this note. All
obligations of any maker, co-maker, endorser or guarantor of this note are joint
and several. This note shall be governed by and construed and enforced in
accordance with the laws of the State of Oregon without regard to conflicts of
law principles. Bank's rights and remedies under this note and under any
Related Documents are cumulative.
13. EXECUTION BY FACSIMILE; COUNTERPARTS. This note may be executed in
several counterparts, each of which will be deemed to be an original and all
of which together constitute one and the same instrument. Delivery of an
executed copy of this note by telecopy, telex or other means of electronic
communication producing a printed copy will be deemed to be an execution and
delivery of this note on the date of such communication by the parties so
delivering such a copy. The party so delivering such a copy via electronic
communication shall deliver an executed original of this note to the other
party within one week of the date of delivery of the copy sent via electronic
communication.
14. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY
BANK AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER
Page 7-PROMISSORY NOTE
CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR
SECURED SOLELY BY THE BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS
CONSIDERATION AND BE SIGNED BY BANK TO BE ENFORCEABLE.
XXXX MEDIA CORPORATION
By: /s/ Xxxxx Xxxx
------------------------------------
Xxxxx Xxxx, President
XXXX MEDIA LTD.
By: /s/ Xxxxx Xxxx
------------------------------------
Xxxxx Xxxx, Treasurer
XXXXXXX & XXXXX, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, President
U.S. BANK NATIONAL ASSOCIATION, formerly known as
United States National Bank of Oregon
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx, Vice President
Page 8-PROMISSORY NOTE
YIELD MAINTENANCE - LIBOR
Subject to the terms of the Note of which this exhibit is a part, Borrower may
prepay the principal balance in whole or in part on any payment due date by
paying, in addition to the principal payment, accrued interest and any other
sums due Lender at the time of prepayment, a yield maintenance charge ("YMC") as
determined by the following formula and if YMC is greater than zero:
YMC = p x (i - y) x f
Where:
p = the prepaid principal amount
i = the current interest rate on the Note
y = the most current yield rate ("Yield Rate") on Lender's LIBOR Base Rate*
as defined in the Note for the LIBOR Period* most closely matching the
term from the date of prepayment to the end of the Yield Maintenance
Period.
n = a fraction wherein the numerator is the number of days from the date of
prepayment to the end of the Yield Maintenance Period and the
denominator is 360.
-n
1 - (1 + y)
f = present value factor = ------------
y
"Yield Maintenance Period" means the time period from the date of prepayment to
the earlier of the next scheduled interest rate adjustment date as defined in
the Note or the maturity date of the Note.
If Borrower shall submit a payment amount in excess of the principal, interest
and other amounts due Lender, the allocation of principal and YMC shall be
calculated based on the following formula:
a = p + YMC
Where:
a = the excess amount to be applied
a
p = the prepaid principal amount = ----------------
f x (i - y) + 1
YMC = a - p
f, i and y have the same meaning as stated above.
Except as provided in the next sentence, any partial prepayment of the
outstanding balance shall not extend the due date of any subsequent monthly
installments or change the amount of such installments, unless Lender shall
otherwise agree in writing. Upon any partial prepayment, Lender shall have the
option, in its sole and absolute discretion, to recalculate the monthly
installments due under the Note so that the amortization period remains the
same.
Borrower shall pay the YMC due under this exhibit whether the prepayment is
voluntary or involuntary (in connection with Lender's acceleration of the unpaid
principal balance of the Note) or Lender's deed of trust securing the Note is
satisfied or released by foreclosure (whether by power of sale or judicial
proceeding), deed in lieu of foreclosure or by any other means. Notwithstanding
any other provision herein to the contrary, Borrower shall not be required to
pay any YMC in connection with any prepayment occurring as a result of the
application of insurance proceeds or condemnation awards under Lender's deed of
Trust.
Should the LIBOR Base Rate not be available or discontinued, Lender shall choose
a comparable index in its sole and absolute discretion.
Lender's determination of the Yield Rate, LIBOR Base Rate, Yield Maintenance
Period and calculation of the formulas contained herein shall be conclusive
absent manifest error.
* For purposes of this exhibit, "LIBOR Base Rate" means "LIBOR Rate"; and "LIBOR
Period" means "LIBOR Interest Period."
Yield Maintenance - LIBOR EXHIBIT A
PROMISSORY NOTE
(Bridge Note)
$7,000,000 Eugene, Oregon September 1, 1998
PARTIES:
XXXX MEDIA CORPORATION, an Oregon corporation (Xxxx)
XXXX MEDIA LTD., a British Columbia corporation (Obie BC)
XXXXXXX & XXXXX, INC., a New York corporation (P&C)
(Xxxx, Xxxx BC and P&C, individually and jointly, are referred to in this
note as Borrower)
U.S. BANK NATIONAL ASSOCIATION, formerly known as United States National
Bank of Oregon (Bank)
AGREEMENTS:
1. PROMISE TO PAY. For value received, Borrower promises to pay to Bank,
or its order, the principal amount of Seven Million United States Dollars
($7,000,000), or so much as may be outstanding, together with interest on the
unpaid principal balance of each advance at the rate specified in this note.
Interest shall be calculated from the date of each advance until repayment of
each advance.
2. PAYMENT OF PRINCIPAL. Borrower shall pay the Principal Balance of
this note upon demand, or if no demand, upon the earlier of: (a) closing of the
Secondary Offering or (b) August 31, 1999.
3. INTEREST RATE AND PAYMENT OF INTEREST.
3.1. DEFINITIONS. As used in this note, the following terms have
the following meanings:
a. "Business Day" means any day other than a Saturday,
Sunday or other day that commercial banks in Portland, Oregon, Minneapolis,
Minnesota, or New York, New York, are authorized or required by law to close.
b. "LIBOR Borrowing Rate" means the LIBOR Rate plus two
percent (2%). The LIBOR Borrowing Rate for each LIBOR Borrowing Rate Amount
shall be determined
Page 1-PROMISSORY NOTE
pursuant to Paragraph 3.3., as of the beginning of the applicable LIBOR Interest
Period, based on the then current LIBOR Rate, and, except as provided in
Paragraph 3.4., shall remain fixed during that LIBOR Interest Period.
c. "LIBOR Borrowing Rate Amount(s)" means those portions
of the Principal Balance that, at any time, are accruing interest at a LIBOR
Borrowing Rate.
d. "LIBOR Interest Period" means, as to any LIBOR
Borrowing Rate Amount, a period of one, two, three or six months commencing on
the date the LIBOR Borrowing Rate becomes applicable; provided, however, that
(1) the first day of such LIBOR Interest Period must be a Business Day; (2) no
LIBOR Interest Period shall be selected which would extend beyond Maturity; (3)
no LIBOR Interest Period shall extend beyond the date of any principal payment
required under this note, unless the sum of the following amounts for this note
equals or exceeds the amount of such principal payment: (i) the Prime Borrowing
Rate Amount for this note, plus (ii) LIBOR Borrowing Rate Amounts for this note
with LIBOR Interest Periods ending on or before the scheduled date of that
principal payment; (4) any LIBOR Interest Period which would otherwise expire on
a day which is not a Business Day, shall be extended to the next succeeding
Business Day, unless the results of such extension would be to extend such LIBOR
Interest Period into another calendar month, in which event the LIBOR Interest
Period shall end on the immediately preceding Business Day; and (5) any LIBOR
Interest Period that begins on the last Business Day of a calendar month (or a
day for which there is no numerically corresponding day in the calendar month at
the end of such LIBOR Interest Period) shall end on the last Business Day of a
calendar month.
e. "LIBOR Rate" means, for any LIBOR Interest Period, the
rate per annum (computed on the basis of a 360 day year and the actual number of
days elapsed and rounded upward to the nearest 1/16 of 1%) established by Bank
as its LIBOR Rate, based on Bank's determination, on the basis of such factors
as Bank deems relevant, of the rate of interest at which U.S. dollar deposits
would be offered to Bank in the London interbank market at approximately 11:00
a.m. London time on the date which is two (2) Business Days prior to the first
day of such LIBOR Interest Period for delivery on the first (1st) day of such
LIBOR interest period for the number of months therein; provided, however, that
Bank's LIBOR Rate shall be adjusted to take into account the maximum reserves
required to be maintained for Eurocurrency liabilities by banks during each such
LIBOR Interest Period as specified in Regulation D of the Board of Governors of
the Federal Reserve System or any successor regulation, and the maximum
assessment rate required to be paid by Bank to the Federal Deposit Insurance
Corporation insuring U.S. dollar deposits made at offices of Bank.
f. "Maturity" means the time when the entire unpaid
Principal Balance becomes due and payable, whether by agreement, acceleration or
otherwise.
g. "Prime Borrowing Rate" means the Prime Rate plus
one-half of one percent (0.5%). The Prime Borrowing Rate shall be adjusted
without notice effective on each day the Prime Rate changes.
Page 2-PROMISSORY NOTE
h. "Prime Rate" means the rate identified and publicly
announced by Bank from time to time as its prime rate and does not necessarily
mean, for example, the lowest rate of interest which Bank collects for any
borrower or group of borrowers.
i. "Prime Borrowing Rate Amount" means that portion of the
Principal Balance that, at any time, is accruing interest at the Prime Borrowing
Rate.
j. "Principal Balance" means, at any time, the unpaid
principal balance of this note.
k. "Related Documents" means, without limitation, all loan
agreements, mortgages, deeds of trust, security agreements, guaranties and all
other instruments, agreements and documents, whether now or hereafter existing,
relating to the indebtedness evidenced by this note.
l. "Secondary Offering" means a secondary offering by Xxxx
of shares of its common stock for sale to the public for the purpose of raising
the money required to pay this note in full.
3.2. PRIME BORROWING RATE. Except for portions of the Principal
Balance that are accruing interest at a LIBOR Borrowing Rate, Borrower shall pay
interest on the Principal Balance at the Prime Borrowing Rate. The Prime
Borrowing Rate shall be adjusted without notice effective on each day the Prime
Rate changes.
3.3. LIBOR BORROWING RATE.
a. Borrower may obtain LIBOR Borrowing Rate quotes from
Bank between 8:00 a.m. and 10:00 a.m. (Portland, Oregon, time) on any Business
Day. Borrower may request a new Advance as a LIBOR Borrowing Rate Amount, or
conversion of a portion of the Prime Borrowing Rate Amount to a LIBOR Borrowing
Rate Amount, or a new LIBOR Interest Period for a LIBOR Borrowing Rate Amount
whose LIBOR Interest Period is expiring, only by giving Bank notice in
accordance with Paragraph 3.3.b. not later than 10:00 a.m. on such date.
b. Whenever Borrower desires to use the LIBOR Borrowing
Rate option, Borrower shall give Bank irrevocable notice (either in writing or
orally) between 8:00 a.m. and 10:00 a.m. (Portland, Oregon, time) two (2)
Business Days in advance of the desired effective date of such rate. Any oral
notice shall be given by, and any written notice or confirmation of an oral
notice shall be signed by, a person authorized to execute and deliver promissory
notes to Bank on behalf of Borrower, and shall specify the requested effective
date of the rate, the LIBOR Interest Period, and whether Borrower is requesting
a new Advance as a LIBOR Borrowing Rate Amount, conversion of a portion of the
Prime Borrowing Rate Amount to a LIBOR Borrowing Rate Amount, or a new LIBOR
Interest Period for a LIBOR Borrowing Rate Amount whose LIBOR Interest Period is
expiring. Bank may, but need not, require that all
Page 3-PROMISSORY NOTE
oral notices be confirmed in writing. Notwithstanding any other term of this
note, Borrower may elect a LIBOR Borrowing Rate Amount only in the minimum
principal amount of Five Hundred Thousand Dollars ($500,000) and in larger
integral multiples of One Hundred Thousand Dollars ($100,000). Except as
provided in Paragraph 3.4., the LIBOR Borrowing Rate for each LIBOR Borrowing
Rate Amount shall remain fixed for the applicable LIBOR Interest Period.
c. If at any time Bank's LIBOR Rate is unascertainable or
unavailable to Bank or if LIBOR Rate loans become unlawful, the option to select
the LIBOR Borrowing Rate shall terminate immediately. If any LIBOR Borrowing
Rates are then in effect (i) each shall terminate automatically with respect to
the applicable LIBOR Borrowing Rate Amount (a) on the last day of the applicable
LIBOR Interest Period, if Bank may lawfully continue to maintain such loans, or
(b) immediately if Bank may not lawfully continue to maintain such loans through
such day, and (ii) the Prime Borrowing Rate automatically shall become effective
as to such amounts upon termination.
d. If at any time after the date of this note (i) any
revision in or adoption of any applicable law, rule or regulation or in the
interpretation or administration thereof (a) shall subject Bank or its
Eurodollar lending office to any tax, duty or other charge, or change the basis
of taxation of payments to Bank with respect to any loans bearing interest based
on Bank's LIBOR Rate or (b) shall impose or modify any reserve, insurance,
special deposit or similar requirements against assets of, deposits with or for
the account of, or credit extended by Bank or its Eurodollar lending office, or
impose on Bank or its Eurodollar lending office any other condition affecting
any such loans, and (ii) the result of the foregoing is (x) to increase the cost
to Bank of making or maintaining any such loans or (y) to reduce the amount of
any sum receivable under this note by Bank or its Eurodollar lending office,
Borrower shall pay Bank within fifteen (15) days after demand by Bank such
additional amount as will compensate Bank for such increased cost or reduction.
The determination hereunder by Bank of such additional amounts shall be
conclusive in the absence of manifest error. If Bank demands compensation under
this paragraph, Borrower may, upon three (3) Business Days' notice to Bank, pay
the accrued interest on all LIBOR Borrowing Rate Amounts as may be affected,
together with any additional amounts payable under Paragraph 3.3.e. Upon
Borrower's paying such accrued interest and additional costs, the Prime
Borrowing Rate immediately shall be effective with respect to the unpaid
principal balance of such LIBOR Borrowing Rate Amounts.
e. Upon any termination of any LIBOR Borrowing Rate
(including, but not limited to, conversion to another rate) or payment of all or
any portion of any LIBOR Borrowing Rate Amount on a date other than the last day
of the then applicable LIBOR Interest Period, as the case may be, including,
without limitation, (i) voluntary prepayment, (ii) acceleration following an
Event of Default, or (iii) repayment in response to a notice under Paragraph
3.3.d., Borrower shall pay to Bank on demand a yield maintenance charge
calculated pursuant to the attached Exhibit A.
f. If Borrower chooses the LIBOR Borrowing Rate, Borrower
shall pay interest based on such rate, plus any other applicable taxes or
charges hereunder, even though
Page 4-PROMISSORY NOTE
Bank may have obtained the funds loaned to Borrower from sources other than the
applicable London interbank market. Bank's determination of the LIBOR Borrowing
Rate and any such taxes or charges shall be conclusive in the absence of
manifest error.
g. Notwithstanding any other term of this note, Borrower
may not select the LIBOR Borrowing Rate if an event has occurred that
constitutes an Event of Default or which, with notice or lapse of time, or both,
would be an Event of Default.
3.4. DEFAULT INTEREST RATE. Notwithstanding anything in this note
to the contrary, upon the occurrence of an Event of Default, the Prime Borrowing
Rate Amount shall thereafter accrue interest at a Prime Borrowing Rate equal to
the Prime Rate plus five and one-half percent (5.5%), and each outstanding LIBOR
Borrowing Rate Amount shall accrue interest at a LIBOR Borrowing Rate equal to
the LIBOR Rate previously determined by Bank for that LIBOR Borrowing Rate
Amount plus seven percent (7%).
3.5. PAYMENT OF INTEREST. Borrower shall pay accrued interest on
the fifteenth (15th) day of September, 1998, and on the fifteenth (15th) day of
every calendar month thereafter, and upon demand. In addition, with respect to
all LIBOR Borrowing Rate Amounts, accrued interest shall be paid on the last day
of the applicable LIBOR Interest Period.
3.6. COMPUTATION OF INTEREST. All interest will be computed at the
applicable rate based on a three hundred sixty (360) day year and applied to the
actual number of days elapsed.
3.7. USURY. Notwithstanding anything in this note to the contrary,
at no time shall the Prime Borrowing Rate or any LIBOR Borrowing Rate exceed the
maximum rate permitted by applicable law.
4. PREPAYMENT. Prepayment may be made in whole or in part at any time.
All prepayments shall be applied:
4.1. First to any Prime Rate Borrowing Amounts, in such order as
Borrower may designate, or in the absence of such designation, in such order as
Bank may determine in Bank's absolute discretion;
4.2. Second, to any LIBOR Borrowing Rate Amounts, in such order as
Borrower may designate, or in the absence of such designation, in such order as
Bank may determine in Bank's absolute discretion; and
4.3. Then to accrued interest.
5. LINE OF CREDIT. This note evidences a non-revolving line of credit.
Advances under this note may be requested orally by Borrower or by an authorized
person. Bank may, but need not, require that all oral requests be confirmed in
writing. All communications, instructions
Page 5-PROMISSORY NOTE
or directions by telephone or otherwise to Bank are to be directed to the Eugene
office of Bank's Corporate Banking Division. Borrower agrees to be liable for
all sums either (a) advanced in accordance with the instructions of an
authorized person or (b) credited to any of Borrower's accounts with Bank,
regardless of the fact that persons other than those authorized to borrow have
authority to draw against the accounts. The Principal Balance may be evidenced
by endorsements on this note or by Bank's internal records, including daily
computer printouts. Bank will have no obligation to advance funds under this
note if an Event of Default, or an event which, with notice or lapse of time, or
both, would be an Event of Default, has occurred or will occur as a result of
making the advance, or if Bank has demanded payment of the Principal Balance and
accrued interest.
6. DEFAULT. Each of the following shall constitute an Event of Default
under this note:
6.1. Borrower fails to make any payment within ten (10) days after
it is due.
6.2. Any default under any Related Document or under any other
agreement between Bank and Borrower.
7. LATE CHARGE. If a payment is nineteen (19) or more days past due,
Borrower will pay a late charge of five percent (5%) of the delinquent payment,
but not more than the maximum amount authorized by law.
8. NOTICES. Any notices required or permitted to be given under the
terms of this note shall be in writing and may be given by personal delivery;
first-class mail; certified mail, return receipt requested; or nationally
recognized overnight courier; directed to the parties at the following
addresses, or such other address as any party may designate in writing prior to
the time of the giving of such notice, or in any other manner authorized by law:
Borrower: 0000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxxx 00000
Attention: Xx. Xxxxx Xxxx
Bank: Oregon Corporate Banking
000 X.X. Xxx
XX-0 Corporate Loan Servicing Center
Xxxxxxxx, Xxxxxx 00000
With a copy to: Attention: Xxxxx Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxxxx 00000
Any notice given shall be effective when actually received; or if given by
certified mail, then forty-eight (48) hours after deposit of such notice in the
United States mail with postage prepaid;
Page 6-PROMISSORY NOTE
or if given by overnight courier, then twenty-four (24) hours after the deposit
of such notice with the overnight courier with delivery charges prepaid.
9. ARBITRATION. Bank and Borrower agree that all disputes, claims and
controversies between them, whether individual, joint, or class in nature,
relating in any way to this note or the Related Documents, including without
limitation contract and tort disputes, shall be arbitrated pursuant to the Rules
of the American Arbitration Association, upon request of either party. No act
to take or dispose of any collateral shall constitute a waiver of this
arbitration provision or be prohibited by this arbitration provision. This
includes, without limitation, obtaining injunctive relief or a temporary
restraining order; foreclosing by notice and sale under any deed of trust or
mortgage; obtaining a writ of attachment or imposition of a receiver; or
exercising any rights relating to personal property, including taking or
disposing of such property with or without judicial process pursuant to Article
9 of the Uniform Commercial Code. Any disputes, claims, or controversies
concerning the lawfulness or reasonableness or any act, or exercise of any
right, concerning any collateral, including any claim to rescind, reform, or
otherwise modify any agreement relating to the collateral, shall also be
arbitrated, provided, however, that no arbitrator shall have the right or other
power to enjoin or restrain any act of any party. Judgment upon any award
rendered by any arbitrator may be entered in any court having jurisdiction.
Nothing herein shall preclude any party from seeking equitable relief from a
court of competent jurisdiction. The statute of limitations, estoppel, waiver,
laches, and similar doctrines which would otherwise be applicable in any action
brought by a party shall be applicable in any arbitration proceeding, and the
commencement of any arbitration proceeding shall be deemed the commencement of
any action for these purposes. The Federal Arbitration Act shall apply to the
construction, interpretation, and enforcement of this arbitration provision.
10. COLLECTION COSTS AND ATTORNEY FEES. Borrower agrees to pay upon
demand all of Bank's reasonable costs and expenses, including attorneys' fees
and Bank's legal expenses, incurred in connection with the enforcement of this
note. Costs and expenses include Bank's attorneys' fees and legal expenses
whether or not there is a lawsuit, including attorneys' fees and legal expenses
for bankruptcy proceedings (and including efforts to modify or vacate any
automatic stay or injunction), appeals and any anticipated post-judgment
collection services. Borrower also shall pay all court costs and such
additional fees as may be directed by the court.
11. WAIVERS. Each maker, co-maker, endorser or guarantor of this note
waives diligence, demand, presentment for payment, notice of non-payment,
protest and notice of protest and consents to all extensions of time and
renewals hereof, whether or not the extensions or renewals are longer than the
original period of the note, to any exchange or release of any security for the
indebtedness evidenced by this note, and to any release of any party liable on
this note or any Related Document.
12. GENERAL PROVISIONS. Time is of the essence of this note. All
obligations of any maker, co-maker, endorser or guarantor of this note are joint
and several. This note shall be governed by and construed and enforced in
accordance with the laws of the State of Oregon
Page 7-PROMISSORY NOTE
without regard to conflicts of law principles. Bank's rights and remedies under
this note and under any Related Documents are cumulative.
13. EXECUTION BY FACSIMILE; COUNTERPARTS. This note may be executed in
several counterparts, each of which will be deemed to be an original and all of
which together constitute one and the same instrument. Delivery of an executed
copy of this note by telecopy, telex or other means of electronic communication
producing a printed copy will be deemed to be an execution and delivery of this
note on the date of such communication by the parties so delivering such a copy.
The party so delivering such a copy via electronic communication shall deliver
an executed original of this note to the other party within one week of the date
of delivery of the copy sent via electronic communication.
14. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY
BANK AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH
ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE
BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY
BANK TO BE ENFORCEABLE.
XXXX MEDIA CORPORATION
By: /s/ Xxxxx Xxxx
---------------------------------------
Xxxxx Xxxx, President
XXXX MEDIA LTD.
By: /s/ Xxxxx Xxxx
---------------------------------------
Xxxxx Xxxx, Treasurer
XXXXXXX & XXXXX, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxx, President
U.S. BANK NATIONAL ASSOCIATION, formerly
known as United States National Bank of
Oregon
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx, Vice President
Page 8-PROMISSORY NOTE
YIELD MAINTENANCE-LIBOR
Subject to the terms of the Note of which this exhibit is a part, Borrower
may prepay the principal balance in whole or in part on any payment due date
by paying, in addition to the principal payment, accrued interest and any
other sums due Lender at the time of prepayment, a yield maintenance change
("YMC") as determined by the following formula and if YMC is greater than
zero:
YMC = p x (i - y)x f
Where:
p = the prepaid principal amount
i = the current interest rate on the Note
y = the most current yield rate ("Yield Rate") on Lender's LIBOR Base Rate*
as defined in the Note for the LIBOR Period* most closely matching the
term from the date of prepayment to the end of the Yield Maintenance
Period.
n = a fraction wherein the numerator is the number of days from the date of
prepayment to the end of the Yield Maintenance Period and the
denominator is 360.
-n
f = present value factor = 1 -(1 + y)
-------------
y
"Yield Maintenance Period" means the time period from the date of prepayment
to the earlier of the next scheduled interest rate adjustment date as
defined in the Note or the maturity date of the Note.
If Borrower shall submit a payment amount in excess of the principal,
interest and other amounts due Lender, the allocation of principal and YMC
shall be calculated based on the following formula:
a = p + YMC
Where:
a = the excess amount to be applied
p = the prepaid principal amount = a
--------------
f x(i - y) + 1
YMC = a - p
f, i and y have the same meaning as stated above.
Except as provided in the next sentence, any partial prepayment of the
outstanding balance shall not extend the due date of any subsequent monthly
installments or change the amount of such installments, unless Lender shall
otherwise agree in writing. Upon any partial prepayment, Lender shall have
the option, in its sole and absolute discretion, to recalculate the monthly
installments due under the Note so that the amortization period remains the
same.
Borrower shall pay the YMC due under this exhibit whether the prepayment is
voluntary or involuntary (in connection with Lender's acceleration of the
unpaid principal balance of the Note) or Lender's deed of trust securing the
Note is satisfied or released by foreclosure (whether by power of sale or
judicial proceeding), deed in lieu of foreclosure or by any other means.
Notwithstanding any other provision herein to the contrary, Borrower shall
not be required to pay any YMC in connection with any prepayment occurring as
a result of the application of insurance proceeds or condemnation awards
under Lender's deed of Trust.
Should the LIBOR Base Rate not be available or discontinued. Lender shall
choose a comparable index in its sole and absolute discretion.
Lender's determination of the Yield Rate, LIBOR Base Rate, Yield Maintenance
Period and calculation of the formulas contained herein shall be conclusive
absent manifest error.
*For purposes of this exhibit, "LIBOR Base Rate" means "LIBOR Rate"; and
"LIBOR Period" means "LIBOR Interest Period."
Yield Maintenance - LIBOR EXHIBIT A
COMMERCIAL SECURITY AGREEMENT
PARTIES:
XXXX MEDIA CORPORATION, an Oregon corporation (Obie)
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
XXXX MEDIA LTD., a British Columbia corporation (Obie BC)
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
XXXXXXX & XXXXX, INC., a New York corporation (P&C)
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
(Xxxx, Xxxx BC and P&C, individually and jointly, are referred to in this
Agreement as Grantor)
U. S. BANK NATIONAL ASSOCIATION, formerly known as United States National
Bank of Oregon (Lender)
Address: Oregon Corporate Banking
000 X.X. Xxx
XX-0 Corporate Loan Servicing Center
Xxxxxxxx, XX 00000
AGREEMENTS:
1. DEFINITIONS. The following words shall have the following meanings
when used in this Agreement. Terms not otherwise defined in this Agreement
shall have the meanings attributed to such terms in the Uniform Commercial Code.
1.1. "Advertising Contracts" means (a) all contracts relating to
the purchase, lease or license of advertising sites or advertising space on
billboards, buildings, benches or other public or private property, (b) all
contracts with transit authorities or transit companies relating to the
placement of advertising on mass transit vehicles, (c) all contracts relating to
the sale, lease or license of advertising space on mass transit vehicles,
billboards, buildings, benches or other
Page 1-COMMERCIAL SECURITY AGREEMENT
public or private property, and (d) all contracts relating to the purchase or
sale of advertising or advertising services; whether now existing or hereafter
arising.
1.2. "Agreement" means this Commercial Security Agreement, as this
Commercial Security Agreement may be amended or modified from time to time,
together with all exhibits and schedules attached to this Commercial Security
Agreement from time to time.
1.3. "Collateral" means the following described property of
Grantor, whether now owned or hereafter acquired, whether now existing or
hereafter arising, and wherever located:
a. All inventory, equipment and fixtures.
b. All rights to payment, specifically including, but not
limited to, all accounts, all rights to payment evidenced by an instrument or
chattel paper, and all rights to payment evidenced by a contract or other
general intangible; together with all guaranties of such rights to payment and
the security therefor and all interest of Grantor in the goods, services or
other property that gave rise to or that secures such rights to payment.
c. All contract rights, specifically including, but not
limited to, all Advertising Contracts.
d. All other goods, instruments, documents, chattel paper,
investment property and general intangibles.
In addition, the word "Collateral" includes all the following, whether now owned
or hereafter acquired, whether now existing or hereafter arising, and wherever
located:
a. All attachments, accessions, accessories, tools, parts,
supplies, increases, and additions to and all replacements of and substitutions
for any property described in this Collateral section.
b. All products and produce of any of the property
described in this Collateral section.
c. All accounts, contract rights, general intangibles,
instruments, rents, monies, payments, and all other rights, arising out of a
sale, lease, or other disposition of any of the property described in this
Collateral section.
d. All proceeds (including insurance proceeds) from the
sale, destruction, loss, or other disposition of any of the property described
in this Collateral section.
Page 2-COMMERCIAL SECURITY AGREEMENT
e. All records and data relating to any of the property
described in this Collateral section, whether in the form of a writing,
photograph, microfilm, microfiche, or electronic media, together with all of
Grantor's right, title, and interest in and to all computer software required to
utilize, create, maintain, and process any such records or data on electronic
media.
1.4. "Environmental Laws" means all local, state and federal laws,
rules, regulations and ordinances pertaining to human health or the environment,
including, without limitation, the federal statutes commonly known as CERCLA and
RCRA and any other federal or state environmental cleanup statutes now or at any
time hereafter in effect.
1.5. "Event of Default" means any of the Events of Default set
forth below in the section titled "Events of Default."
1.6. "Grantor" means Xxxx, Xxxx BC and P&C, individually and
jointly. All references to Grantor in this Agreement mean each and all of Xxxx,
Xxxx BC and P&C.
1.7. "Guarantor" means each and all of the guarantors, sureties,
and accommodation parties in connection with the Indebtedness.
1.8. "Hazardous Substances" means any materials that, because of
their quantity, concentration or physical, chemical or infectious
characteristics, may cause or pose a present or potential hazard to human health
or the environment, and specifically includes, but is not limited to, any and
all hazardous, toxic or infectious substances, materials or wastes as defined or
listed under any Environmental Laws.
1.9. "Indebtedness" means the indebtedness evidenced by the Note,
including all principal and interest, together with all other indebtedness and
costs and expenses for which Grantor is responsible under this Agreement or
under any of the Related Documents. In addition, the word "Indebtedness"
includes all other obligations, debts and liabilities, plus interest thereon, of
Grantor to Lender, as well as all claims by Lender against Grantor whether
existing now or later; whether they are voluntary or involuntary, due or not
due, direct or indirect, absolute or contingent, liquidated or unliquidated;
whether Grantor may be liable individually or jointly with others; whether
Grantor may be obligated as guarantor, surety, accommodation party or otherwise;
whether recovery upon such indebtedness may be or hereafter may become barred by
any statute of limitations; and whether such indebtedness may be or hereafter
may become unenforceable as a result of bankruptcy, any statute of limitations
or any similar reason.
1.10. "Loan Agreement" means that certain Loan Agreement being
executed contemporaneously herewith, between Grantor and Lender, as that Loan
Agreement may be amended or modified from time to time.
Page 3-COMMERCIAL SECURITY AGREEMENT
1.11. "Note" means one or more of (a) the Bridge Note, the MO
Partners Note, the Revolving Note, Term Note A, Term Note B and the 1998/1999
Construction Note (as those terms are defined in the Loan Agreement), (b) any
other promissory note now or hereafter delivered to Lender in connection with
the Indebtedness, (c) any promissory note substituted for one or more of them,
and (d) any document evidencing a renewal, extension or modification of one or
more of them.
1.12. "Related Documents" means, without limitation, all promissory
notes, loan agreements, guaranties, security agreements, mortgages, deeds of
trust, and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the Indebtedness.
2. GRANT OF SECURITY INTEREST. Grantor grants to Lender a security
interest in the Collateral to secure the Indebtedness and agrees that Lender
shall have the rights stated in this Agreement with respect to the Collateral,
in addition to all other rights which Lender may have by law.
3. RIGHT OF SETOFF. Grantor hereby grants Lender a contractual
possessory security interest in and hereby assigns, conveys, delivers, pledges
and transfers, as security, all of Grantor's right, title and interest in and to
Grantor's accounts with Lender (whether checking, savings, or some other
account), including all accounts held jointly with someone else and all accounts
Grantor may open in the future, excluding, however, all XXX, Xxxxx, and trust
accounts. Upon any Event of Default, or any event which with notice or lapse of
time or both would constitute an Event of Default, Grantor authorizes Lender, to
the extent permitted by applicable law, to charge or setoff all Indebtedness
against any and all such accounts.
4. OBLIGATIONS OF GRANTOR. Grantor warrants and covenants to Lender as
follows:
4.1. PERFECTION OF SECURITY INTEREST. Grantor agrees to execute
such financing statements and to take whatever other actions are requested by
Lender to perfect and continue Lender's security interest in the Collateral.
Upon request of Lender, Grantor will deliver to Lender any and all of the
documents evidencing or constituting the Collateral, and Grantor will note
Lender's interest upon any and all chattel paper if not delivered to Lender for
possession by Lender. Grantor hereby appoints Lender as its irrevocable
attorney-in-fact for the purpose of executing any documents necessary to perfect
or to continue the security interest granted in this Agreement. Lender may at
any time, and without further authorization from Grantor, file a carbon,
photographic or other reproduction of any financing statement or of this
Agreement for use as a financing statement. Grantor will reimburse Lender for
all expenses for the perfection and the continuation of the perfection of
Lender's security interest in the Collateral. Grantor promptly will notify
Lender before any change in Grantor's name including any change to the assumed
business names of Grantor. This is a continuing Security Agreement and xxxx
Xxxx 4-COMMERCIAL SECURITY AGREEMENT
continue in effect even though all or any part of the Indebtedness is paid in
full and even though for a period of time Grantor may not be indebted to Lender.
4.2. NO VIOLATION. The execution and delivery of this Agreement
will not violate any law or agreement governing Grantor or to which Grantor is a
party, and its articles of organization and operating agreement do not prohibit
any term or condition of this Agreement.
4.3. ENFORCEABILITY OF COLLATERAL. To the extent the Collateral
consists of accounts, contract rights, instruments, chattel paper, or general
intangibles, the Collateral is enforceable in accordance with its terms, is
genuine, and complies with applicable laws concerning form, content and manner
of preparation and execution, and all persons appearing to be obligated on the
Collateral have authority and capacity to contract and are in fact obligated as
they appear to be on the Collateral.
4.4. LOCATION OF THE COLLATERAL. Grantor, upon request of Lender,
will deliver to Lender in form satisfactory to Lender a schedule of real
properties and Collateral locations relating to Grantor's operations, including
without limitation the following: (a) all real property owned or being
purchased by Grantor; (b) all real property being rented or leased by Grantor;
(c) all storage facilities owned, rented, leased, or being used by Grantor; and
(d) all other properties where Collateral is or may be located. Except in the
ordinary course of its business, Grantor shall not remove the Collateral from
its existing locations without the prior written consent of Lender.
4.5. REMOVAL OF COLLATERAL. Grantor shall keep the Collateral (or
to the extent the Collateral consists of intangible property such as accounts,
the records concerning the Collateral) at Grantor's address shown above, or at
such other locations as are acceptable to Lender. Except in the ordinary course
of its business, including the sales of inventory, Grantor shall not remove the
Collateral from its existing locations without the prior written consent of
Lender. To the extent that the Collateral consists of vehicles, or other titled
property, Grantor shall not take or permit any action which would require
application for certificates of title for the vehicles outside the State of
Oregon, without the prior written consent of Lender.
4.6. TRANSACTIONS INVOLVING COLLATERAL. Except for inventory sold
and accounts and general intangibles collected in the ordinary course of
Grantor's business, Grantor shall not sell, offer to sell, or otherwise transfer
or dispose of the Collateral. While Grantor is not in default under this
Agreement, Grantor may sell inventory, but only in the ordinary course of its
business and only to buyers who qualify as a buyer in the ordinary course of
business. A sale in the ordinary course of Grantor's business does not include
a transfer in partial or total satisfaction of a debt or any bulk sale. Grantor
shall not pledge, mortgage, encumber or otherwise permit the Collateral to be
subject to any lien, security interest, encumbrance, or charge, other than the
security interest provided for in this Agreement, without the prior written
consent of Lender. This includes security interests even if junior in right to
the security interests granted under this Agreement. All proceeds from any
disposition of the
Page 5-COMMERCIAL SECURITY AGREEMENT
Collateral (for whatever reason) shall be held in trust for Lender and shall not
be commingled with any other funds; provided however, this requirement shall not
constitute consent by Lender to any sale or other disposition. Upon receipt,
Grantor shall immediately deliver any such proceeds to Lender.
4.7. TITLE. Grantor represents and warrants to Lender that it
holds good and marketable title to the Collateral, free and clear of all liens
and encumbrances except for the lien of this Agreement, and except for liens and
encumbrances to which Lender has specifically consented. No financing statement
covering any of the Collateral is on file in any public office other than those
which reflect the security interest created by this Agreement or to which Lender
has specifically consented. Grantor shall defend Lender's right in the
Collateral against the claims and demands of all other persons.
4.8. COLLATERAL SCHEDULES AND LOCATIONS. As often as Lender shall
require, and insofar as the Collateral consists of accounts, contract rights and
general intangibles, Grantor shall deliver to Lender schedules of such
Collateral, including such information as Lender may require, including without
limitation names and addresses of account debtors and agings of accounts,
contracts and general intangibles. Insofar as the Collateral consists of
inventory and equipment, Grantor shall deliver to Lender, as often as Lender
shall require, such lists, descriptions, and designations of such Collateral as
Lender may require to identify the nature, extent, and location of such
Collateral. Such information shall be submitted for Grantor and each of its
subsidiaries or related companies.
4.9. MAINTENANCE AND INSPECTION OF COLLATERAL. Grantor shall
maintain all tangible Collateral in good condition and repair. Grantor will not
commit or permit damage to or destruction of the Collateral or any part of the
Collateral. Lender and its designated representatives and agents shall have the
right at all reasonable times to examine, inspect, and audit the Collateral
wherever located. Grantor shall immediately notify Lender of all cases
involving the return, rejection, repossession, loss or damage of or to any
Collateral with a fair market value in excess of $25,000 individually or in the
aggregate; of any request for credit or adjustment or of any other dispute
arising with respect to the Collateral with a fair market value in excess of
$25,000 individually or in the aggregate; and generally of all happenings and
events materially affecting the Collateral or the value or the amount of the
Collateral.
4.10. TAXES, ASSESSMENTS AND LIENS. Grantor will pay when due all
taxes, assessments, liens, security interests, encumbrances and other claims
upon the Collateral, its use or operation, upon this Agreement, upon any Notes,
or upon any of the other Related Documents. Grantor may withhold any such
payment or may elect to contest any lien if Grantor is in good faith conducting
an appropriate proceeding to contest the obligation to pay and so long as
Lender's interest in the Collateral is not jeopardized in Lender's reasonable
opinion. If the Collateral is subjected to a lien which is not discharged
within 15 days, Grantor shall deposit with Lender cash, a sufficient corporate
surety bond or other security satisfactory to Lender in an amount adequate to
provide for the discharge of the lien plus any interest, costs, attorneys' fees
Page 6-COMMERCIAL SECURITY AGREEMENT
and other charges that could accrue as a result of foreclosure or sale of the
Collateral. In any contest Grantor shall defend itself and Lender and shall
satisfy any final adverse judgment before enforcement against the Collateral.
Grantor shall name Lender as an additional obligee under any surety bond
furnished in the contest proceedings.
4.11. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Grantor shall
comply promptly with all laws, ordinances and regulations of all governmental
authorities applicable to the production, disposition, or use of the Collateral.
Grantor may contest in good faith any such law, ordinance or regulation and
withhold compliance during any proceeding, including appropriate appeals, so
long as Lender's interest in the Collateral, in Lender's reasonable opinion, is
not jeopardized.
4.12. HAZARDOUS SUBSTANCES. Grantor represents and warrants that,
to the best of Grantor's knowledge, the Collateral never has been, and never
will be so long as this Agreement remains a lien on the Collateral, used for the
generation, manufacture, storage, transportation, treatment, disposal, release
or threatened release of any Hazardous Substance. The representations and
warranties contained herein are based on Grantor's due diligence in
investigating the Collateral for Hazardous Substances. Grantor hereby (a)
releases and waives any future claims against Lender for indemnity or
contribution in the event Grantor becomes liable for cleanup or other costs
under any Environmental Laws, and (b) agrees to indemnify and hold harmless
Lender against any and all claims and losses resulting from a breach of this
provision of this Agreement, or as a result of a violation of any Environmental
Laws. Grantor's obligation to indemnify shall survive the payment of the
Indebtedness and the satisfaction of this Agreement.
4.13. MAINTENANCE OF CASUALTY INSURANCE. Grantor shall procure and
maintain all risks insurance, including without limitation fire, theft and
liability coverage together with such other insurance as Lender may reasonably
require with respect to the Collateral, in form, amounts, coverages and basis
reasonably acceptable to Lender and issued by a company or companies reasonably
acceptable to Lender. Grantor, upon request of Lender, will deliver to Lender
from time to time the policies or certificates of insurance in form satisfactory
to Lender, including stipulations that coverages will not be cancelled or
diminished without at least ten days prior written notice to Lender and not
including any disclaimer of the insurer's liability for failure to give such a
notice. In connection with all policies covering assets in which Lender holds
or is offered a security interest, Grantor will provide Lender with such loss
payable or other endorsements as Lender may require. If Grantor at any time
fails to obtain or maintain any insurance as required under this Agreement,
Lender may (but shall not be obligated to) obtain such insurance as Lender deems
appropriate, including if it so chooses "single interest insurance," which will
cover only Lender's interest in the Collateral.
4.14. APPLICATION OF INSURANCE PROCEEDS. Grantor shall promptly
notify Lender of any loss or damage to the Collateral. Lender may make proof of
loss if Grantor fails to do so within 15 days of the casualty. All proceeds of
any insurance on the Collateral, including accrued proceeds thereon, shall be
held by Lender as part of the Collateral. Lender, in
Page 7-COMMERCIAL SECURITY AGREEMENT
its discretion, may apply any or all insurance proceeds to payment of any of
Grantor's obligations to Lender, whether or not then due, or may release any
such proceeds or any portion thereof to Grantor.
4.15. INSURANCE REPORTS. Grantor, upon request of Lender, shall
furnish to Lender reports on each existing policy of insurance showing such
information as Lender may reasonably request including the following: (a) the
name of the insurer; (b) the risks insured; (c) the amount of the policy; (d)
the property insured; (e) the then current value on the basis of which insurance
has been obtained and the manner of determining that value; and (f) the
expiration date of the policy. In addition, upon any Event of Default, or any
event which with notice or lapse of time or both would constitute an Event of
Default, Grantor shall upon request by Lender have an independent appraiser
satisfactory to Lender determine, as applicable, the cash value or replacement
cost of the Collateral.
5. GRANTOR'S RIGHT TO POSSESSION. Until any Event of Default, or any
event which with notice or lapse of time or both would constitute an Event of
Default, and except as otherwise provided below in the paragraphs entitled
"Payment" and "Advertising Contracts" and above in the paragraph titled
"Transactions Involving Collateral", Grantor may have possession of the tangible
personal property and beneficial use of all the Collateral and may use it in any
lawful manner not inconsistent with this Agreement or the Related Documents,
provided that Grantor's right to possession and beneficial use shall not apply
to any Collateral where possession of the Collateral by Lender is required by
law to perfect Lender's security interest in such Collateral. If Lender at any
time has possession of any Collateral, whether before or after an Event of
Default, Lender shall be deemed to have exercised reasonable care in the custody
and preservation of the Collateral if Lender takes such action for that purpose
as Grantor shall request or as Lender, in Lender's reasonable discretion, shall
deem appropriate under the circumstances, but failure to honor any request by
Grantor shall not of itself be deemed to be a failure to exercise
reasonable care. Lender shall not be required to take any steps necessary to
preserve any rights in the Collateral against prior parties, nor to protect,
preserve or maintain any security interest given to secure the Collateral.
6. PAYMENTS. Lender may at any time, or from time to time, collect any
of the Collateral consisting of accounts, contracts and general intangibles.
Lender may notify, or require Grantor to notify, any debtor of Grantor to make
payments owing to Grantor directly to Lender, and Lender may take control of the
cash and non-cash proceeds of that Collateral. This right may be exercised at
any time whether or not Grantor is in default hereunder. Each debtor shall be
entitled to conclusively rely upon any notice from Lender to make payment
directly to Lender, without inquiry as to whether or not Lender is entitled to
direct payments under the terms of this Agreement, and Grantor agrees to
indemnify and hold each debtor harmless from any claim or liability arising out
of such direct payment.
7. ADVERTISING CONTRACTS. Grantor shall promptly pay and perform all
obligations of Grantor under the Advertising Contracts, whether now existing or
hereafter arising.
Page 8-COMMERCIAL SECURITY AGREEMENT
Grantor will furnish to Lender prompt notice of any claimed default on the part
of any party under the terms of any Advertising Contract. Grantor shall not
terminate any Advertising Contract, or modify or amend that contract, or grant
any concessions in connection with that contract, or consent to the assignment
of that contract, except in the ordinary course of Grantor's business. Grantor
shall appear in and defend, at no cost to Lender, any action or proceeding
arising under or in any manner connected with any Advertising Contract. If
requested by Lender, Grantor shall enforce any Advertising Contract and all
remedies available to Grantor in case of default under that contract. Nothing
herein shall be construed to impose any liability or obligation on Lender under
or with respect to any Advertising Contract. Grantor shall indemnify and hold
Lender harmless from any and all loss, liability or expense which Lender may
incur in connection with any Advertising Contract. Lender shall have the right
(but not the obligation), upon any failure by Grantor to perform any of its
obligations under any Advertising Contract, to take any action that Lender may
deem necessary or appropriate to protect its security, including, but not
limited to, performing any obligation of Grantor under the Advertising Contract;
terminating, modifying or amending that contract; and appearing in any action or
proceeding relating to that contract. All parties to any Advertising Contract
shall be entitled to conclusively rely upon any notice from Lender that Lender
is exercising its rights under this Agreement, and therefore deal directly with
Lender with respect to that contract, without inquiry as to whether or not
Lender is entitled to exercise its rights under the terms of this Agreement, and
Grantor agrees to indemnify and hold such third parties harmless from any claim
or liability arising out of such direct dealing with Lender. Nothing in this
Agreement shall require Lender to advance any monies for any purpose or to do
any act hereunder. Lender shall not be liable for any error or omission or
delay of any kind occurring in connection with any Advertising Contract or for
any damages resulting therefrom.
8. EXPENDITURES BY LENDER. If not discharged or paid when due, Lender
may (but shall not be obligated to) discharge or pay any amounts required to be
discharged or paid by Grantor under this Agreement, including without limitation
all taxes, liens, security interests, encumbrances, and other claims, at any
time levied or placed on the Collateral. Lender also may (but shall not be
obligated to) pay all costs for insuring, maintaining and preserving the
Collateral. All such expenditures incurred or paid by Lender for such purposes
will then bear interest at the highest rate charged under the Note from the date
incurred or paid by Lender to the date of repayment by Grantor. All such
expenses shall become a part of the Indebtedness and, at Lender's option, will
(a) be payable on demand, (b) be added to the balance of a Note and be
apportioned among and be payable with any installment payments to become due
during either (i) the term of any applicable insurance policy or (ii) the
remaining term of the Note, or (c) be treated as a balloon payment which will be
due and payable at the Note's maturity. This Agreement also will secure payment
of these amounts. Such right shall be in addition to all other rights and
remedies to which Lender may be entitled upon the occurrence of an Event of
Default.
9. EVENTS OF DEFAULT. Each of the following shall constitute an Event of
Default under this Agreement:
Page 9-COMMERCIAL SECURITY AGREEMENT
9.1. DEFAULT ON INDEBTEDNESS. Failure of Grantor to make any
payment on the Indebtedness within ten days after the due date thereof.
9.2. OTHER DEFAULTS. Any default under any of the Related
Documents or under any other agreement between Lender and Grantor.
9.3. FALSE STATEMENTS. Any warranty, representation or statement
made or furnished to Lender by or on behalf of Grantor under this Agreement is
false or misleading in any material respect, either now or at the time made or
furnished.
9.4. DEFECTIVE COLLATERALIZATION. This Agreement or any of the
Related Documents ceases to be in full force and effect (including failure of
any collateral documents to create a valid and perfected first priority security
interest or lien) at any time and for any reason.
9.5. INSOLVENCY. The dissolution or termination of Grantor's
existence as a going business, the insolvency of Grantor, the appointment of a
receiver for any part of Grantor's property, any assignment for the benefit of
creditors, or the commencement of any proceeding under any bankruptcy or
insolvency laws by or against Grantor.
9.6. CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of
foreclosure or forfeiture proceedings, whether by judicial proceeding,
self-help, repossession or any other method, by any creditor of Grantor or by
any governmental agency against the Collateral or any other collateral securing
the Indebtedness. This includes a garnishment of any of Grantor's deposit
accounts with Lender. However, this Event of Default shall not apply if there
is a good faith dispute by Grantor as to the validity or reasonableness of the
claim which is the basis of the creditor or forfeiture proceeding and if Grantor
gives Lender written notice of the creditor or forfeiture proceeding and
deposits with Lender monies or a surety bond for the creditor or forfeiture
proceeding, in an amount determined by Lender, in its sole discretion, as being
an adequate reserve or bond for the dispute.
9.7. EVENTS AFFECTING GUARANTOR. Any of the preceding events
occurs with respect to any Guarantor of any of the Indebtedness or such
Guarantor dies or becomes incompetent. Lender, at its option, may, but shall
not be required to, permit the Guarantor's estate to assume unconditionally the
obligations arising under the guaranty in a manner satisfactory to Lender, and,
in doing so, cure the Event of Default.
9.8. INSECURITY. Lender, in good faith, deems itself insecure.
10. RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under
this Agreement, at any time thereafter, Lender shall have all the rights of a
secured party under the Oregon Uniform Commercial Code. In addition, and
without limitation, Lender may exercise any one or more of the following rights
and remedies:
Page 10-COMMERCIAL SECURITY AGREEMENT
10.1. ACCELERATE INDEBTEDNESS. Lender may declare the entire
Indebtedness, including any prepayment penalty which Grantor would be required
to pay, immediately due and payable, without notice.
10.2. ASSEMBLE COLLATERAL. Lender may require Grantor to deliver to
Lender all or any portion of the Collateral and any and all certificates of
title and other documents relating to the Collateral. Lender may require
Grantor to assemble the Collateral and make it available to Lender at a place to
be designated by Lender. Lender also shall have full power to enter upon the
property of Grantor to take possession of and remove the Collateral. If the
Collateral contains other goods not covered by this Agreement at the time of
repossession, Grantor agrees Lender may take such other goods, provided that
Lender makes reasonable efforts to return them, at Lender's expense, to Grantor
after repossession.
10.3. SELL THE COLLATERAL. Lender shall have full power to sell,
lease, transfer, or otherwise deal with the Collateral or proceeds thereof in
its own name or that of Grantor. Lender may sell the Collateral at public
auction or private sale. Unless the Collateral threatens to decline speedily in
value or is of a type customarily sold on a recognized market, Lender will give
Grantor reasonable notice of the time after which any private sale or any other
intended disposition of the Collateral is to be made unless Grantor has signed,
after an Event of Default occurs, a statement renouncing or modifying Grantor's
right to notification of sale. The requirements of reasonable notice shall be
met if such notice is given at least ten days before the time of the sale or
disposition. All expenses relating to the disposition of the Collateral,
including without limitation the expenses of retaking, holding, insuring,
preparing for sale and selling the Collateral, shall become a part of the
Indebtedness secured by this Agreement and shall be payable on demand, with
interest at the highest Note default rate from date of expenditure until repaid.
10.4. APPOINT RECEIVER. To the extent permitted by applicable law,
Lender shall have the following rights and remedies regarding the appointment of
a receiver: (a) Lender may have a receiver appointed as a matter of right, (b)
the receiver may be an employee of Lender and may serve without bond, and (c)
all reasonable fees of the receiver and his or her attorney shall become part of
the Indebtedness secured by this Agreement and shall be payable on demand, with
interest at the highest Note default rate from date of expenditure until repaid.
10.5. COLLECT REVENUES, APPLY ACCOUNTS. Lender, either itself or
through a receiver, may collect the payments, rents, income, and revenues from
the Collateral. Lender may at any time in its discretion transfer any
Collateral into its own name or that of its nominee and receive the payments,
rents, income, and revenues therefrom and hold the same as security for the
Indebtedness or apply it to payment of the Indebtedness in such order of
preference as Lender may determine. Insofar as the Collateral consists of
accounts, contracts, general intangibles, insurance policies, instruments,
chattel paper, choses in action, or similar property, Lender may demand,
collect, receipt for, settle, compromise, adjust, xxx for, foreclose, or realize
on the Collateral as Lender may determine, whether or not Indebtedness or
Collateral is then due. For these purposes, Lender may, on behalf of and in the
name of Grantor, receive,
Page 11-COMMERCIAL SECURITY AGREEMENT
open and dispose of mail addressed to Grantor; change any address to which mail
and payments are to be sent; and endorse notes, checks, drafts, money orders,
documents of title, instruments and items pertaining to payment, shipment, or
storage of any Collateral. To facilitate collection, Lender may notify account
debtors and obligors on any Collateral to make payments directly to Lender.
10.6. OBTAIN DEFICIENCY. If Lender chooses to sell any or all of
the Collateral, Lender may obtain a judgment for any deficiency remaining on the
Indebtedness due to Lender after application of all amounts received from the
exercise of the rights provided in this Agreement. Grantor shall be liable for
a deficiency even if the transaction described in this subsection is a sale of
accounts or chattel paper.
10.7. OTHER RIGHTS AND REMEDIES. Lender shall have all the rights
and remedies of a secured creditor under the provisions of the Uniform
Commercial Code, as it may be amended from time to time. In addition, Lender
shall have and may exercise any or all other rights and remedies it may have
available at law, in equity, or otherwise.
10.8. CUMULATIVE REMEDIES. All of Lender's rights and remedies,
whether evidenced by this Agreement or the Related Documents or by any other
writing, shall be cumulative and may be exercised singularly or concurrently.
Election by Lender to pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action to perform an
obligation of Grantor under this Agreement, after Grantor's failure to perform,
shall not affect Lender's right to declare a default and to exercise its
remedies.
11. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are
a part of this Agreement:
11.1. AMENDMENTS. This Agreement, together with any Related
Documents, constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Agreement. No alteration of or amendment to
this Agreement shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the alteration or amendment.
11.2. APPLICABLE LAW. This Agreement has been delivered to Lender
and accepted by Lender in the State of Oregon. If there is a lawsuit, Grantor
agree upon Lender's request to submit to the jurisdiction of the courts of Lane
County, State of Oregon. Subject to the provisions on arbitration, this
Agreement shall be governed by and construed in accordance with the laws of the
State of Oregon.
11.3. ARBITRATION. Bank and Borrower agree that all disputes,
claims and controversies between them, whether individual, joint, or class in
nature, relating in any way to this Agreement or the Related Documents,
including without limitation contract and tort disputes,
Page 12-COMMERCIAL SECURITY AGREEMENT
shall be arbitrated pursuant to the Rules of the American Arbitration
Association, upon request of either party. No act to take or dispose of any
Collateral shall constitute a waiver of this arbitration provision or be
prohibited by this arbitration provision. This includes, without limitation,
obtaining injunctive relief or a temporary restraining order; foreclosing by
notice and sale under any deed of trust or mortgage; obtaining a writ of
attachment or imposition of a receiver; or exercising any rights relating to
personal property, including taking or disposing of such property with or
without judicial process pursuant to Article 9 of the Uniform Commercial Code.
Any disputes, claims, or controversies concerning the lawfulness or
reasonableness or any act, or exercise of any right, concerning any Collateral,
including any claim to rescind, reform, or otherwise modify any agreement
relating to the Collateral, shall also be arbitrated, provided, however, that no
arbitrator shall have the right or other power to enjoin or restrain any act of
any party. Judgment upon any award rendered by any arbitrator may be entered in
any court having jurisdiction. Nothing herein shall preclude any party from
seeking equitable relief from a court of competent jurisdiction. The statute of
limitations, estoppel, waiver, laches, and similar doctrines which would
otherwise be applicable in any action brought by a party shall be applicable in
any arbitration proceeding, and the commencement of any arbitration proceeding
shall be deemed the commencement of any action for these purposes. The Federal
Arbitration Act shall apply to the construction, interpretation, and enforcement
of this arbitration provision.
11.4. ATTORNEYS' FEES; EXPENSES. Grantor agrees to pay upon demand
all of Lender's reasonable costs and expenses, including attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of this
Agreement. Costs and expenses include Lender's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and legal
expenses for bankruptcy proceedings (and including efforts to modify or vacate
any automatic stay or injunction), appeals, and any anticipated post-judgment
collection services. Grantor also shall pay all court costs and such additional
fees as may be directed by the court.
11.5. NOTICES. Any notices required or permitted to be given under
the terms of this Agreement or any Related Document shall be in writing and may
be given by personal delivery; first class mail; certified mail, return receipt
requested; or nationally recognized overnight courier; directed to the parties
at the following addresses, or such other address as any party may designate in
writing prior to the time of the giving of such notice, or in any other manner
authorized by law:
Grantor: 0000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
Lender: Oregon Corporate Banking
000 X.X. Xxx
XX-0 Corporate Loan Servicing Center
Xxxxxxxx, XX 00000
Page 13-COMMERCIAL SECURITY AGREEMENT
With a copy to: Attn: Xxxxx Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
Any notice given shall be effective when actually received; or if given by
certified mail, then 48 hours after deposit of such notice in the United States
mail with postage prepaid; or if given by overnight courier, then 24 hours after
the deposit of such notice with the overnight courier with delivery charges
prepaid.
11.6. POWER OF ATTORNEY. Grantor hereby appoints Lender as its true
and lawful attorney-in-fact, irrevocably, with full power of substitution to do
the following: (a) to demand, collect, receive, receipt for, xxx and recover
all sums of money or other property which may now or hereafter become due, owing
or payable from the Collateral; (b) to execute, sign and endorse any and all
claims, instruments, receipts, checks, drafts or warrants issued in payment for
the Collateral; (c) to settle or compromise any and all claims arising under the
Collateral, and, in the place and stead of Grantor, to execute and deliver its
release and settlement for the claim; and (d) to file any claim or claims or to
take any action or institute or take part in any proceedings, either in its own
name or in the name of Grantor, or otherwise, which in the discretion of Lender
may seem to be necessary or advisable. This power is given as security for the
Indebtedness, and the authority hereby conferred is and shall be irrevocable and
shall remain in full force and effect until renounced by Lender.
11.7. PREFERENCE PAYMENTS. Any monies Lender pays because of an
asserted preference claim in Grantor's bankruptcy will become a part of the
Indebtedness and, at Lender's option, shall be payable by Grantor as provided
above in the "EXPENDITURES BY LENDER" paragraph.
11.8. SEVERABILITY. If a court of competent jurisdiction finds any
provision of this Agreement to be invalid or unenforceable as to any person or
circumstance, such finding shall not render that provision invalid or
unenforceable as to any other persons or circumstances. If feasible, any such
offending provision shall be deemed to be modified to be within the limits of
enforceability or validity; however, if the offending provision cannot be so
modified, it shall be stricken and all other provisions of this Agreement in all
other respects shall remain valid and enforceable.
11.9. SUCCESSOR INTERESTS. Subject to the limitations set forth
above on transfer of the Collateral, this Agreement shall be binding upon and
inure to the benefit of the parties, their successors and assigns.
11.10. WAIVER. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by Lender
of a provision of this Agreement shall not prejudice or constitute a
Page 14-COMMERCIAL SECURITY AGREEMENT
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by Lender,
nor any course of dealing between Lender and Grantor, shall constitute a waiver
of any of Lender's rights or of any of Grantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this Agreement,
the granting of such consent by Lender in any instance shall not constitute
continuing consent to subsequent instances where such consent is required and in
all cases such consent may be granted or withheld in the sole discretion of
Lender.
11.11. EXECUTION BY FACSIMILE; COUNTERPARTS. This Agreement may be
executed in several counterparts, each of which will be deemed to be an original
and all of which together constitute one and the same instrument. Delivery of
an executed copy of this Agreement by telecopy, telex or other means of
electronic communication producing a printed copy will be deemed to be an
execution and delivery of this Agreement on the date of such communication by
the parties so delivering such a copy. The party so delivering such a copy via
electronic communication shall deliver an executed original of this Agreement to
the other party within one week of the date of delivery of the copy sent via
electronic communication.
11.12. STATUTORY DISCLOSURE. As required by Oregon statute (ORS
746.201(2)), the following disclosure is made:
WARNING
UNLESS YOU PROVIDE US WITH EVIDENCE OF THE INSURANCE COVERAGE AS
REQUIRED BY OUR CONTRACT OR LOAN AGREEMENT, WE MAY PURCHASE INSURANCE
AT YOUR EXPENSE TO PROTECT OUR INTEREST. THIS INSURANCE MAY, BUT NEED
NOT, ALSO PROTECT YOUR INTEREST. IF THE COLLATERAL BECOMES DAMAGED,
THE COVERAGE WE PURCHASE MAY NOT PAY ANY CLAIM YOU MAKE OR ANY CLAIM
MADE AGAINST YOU. YOU MAY LATER CANCEL THIS COVERAGE BY PROVIDING
EVIDENCE THAT YOU HAVE OBTAINED PROPERTY COVERAGE ELSEWHERE.
YOU ARE RESPONSIBLE FOR THE COST OF ANY INSURANCE PURCHASED BY
US. THE COST OF THIS INSURANCE MAY BE ADDED TO YOUR CONTRACT OR LOAN
BALANCE. IF THE COST IS ADDED TO YOUR CONTRACT OR LOAN BALANCE, THE
INTEREST RATE ON THE UNDERLYING CONTRACT OR LOAN WILL APPLY TO THIS
ADDED AMOUNT. THE EFFECTIVE DATE OF COVERAGE MAY BE THE DATE YOUR
PRIOR COVERAGE LAPSED OR THE DATE YOU FAILED TO PROVIDE PROOF OF
COVERAGE.
THE COVERAGE WE PURCHASE MAY BE CONSIDERABLY MORE EXPENSIVE THAN
INSURANCE YOU CAN OBTAIN ON YOUR OWN AND
Page 15-COMMERCIAL SECURITY AGREEMENT
MAY NOT SATISFY ANY NEED FOR PROPERTY DAMAGE COVERAGE OR ANY MANDATORY
LIABILITY INSURANCE REQUIREMENTS IMPOSED BY APPLICABLE LAW.
DATED: September 1, 1998.
XXXX MEDIA CORPORATION
By: /s/ Xxxxx Xxxx
-----------------------------------
Xxxxx Xxxx
President
XXXX MEDIA LTD.
By: /s/ Xxxxx Xxxx
-----------------------------------
Xxxxx Xxxx
Treasurer
XXXXXXX & XXXXX, INC.
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Xxxxx X. Xxxxx
President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Xxxxx Xxxxxxx
Vice President
Page 16-COMMERCIAL SECURITY AGREEMENT
STOCK PLEDGE AGREEMENT
PARTIES:
XXXX MEDIA CORPORATION, an Oregon corporation (Xxxx)
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
XXXX MEDIA LTD., a British Columbia corporation (Obie BC)
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
XXXXXXX & XXXXX, INC., a New York corporation (P&C)
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000
U.S. BANK NATIONAL ASSOCIATION, formerly known as United States National
Bank of Oregon (Lender)
Address: Oregon Corporate Banking
000 X.X. Xxx
XX-0 Corporate Loan Servicing Center
Xxxxxxxx, XX 00000
AGREEMENTS:
1. DEFINITIONS. The following words shall have the following meanings
when used in this Agreement. Terms not otherwise defined in this Agreement
shall have the meanings attributed to such terms in the Uniform Commercial Code.
All references to dollar amounts shall mean amounts in lawful money of the
United States of America.
1.1. "Agreement" means this Stock Pledge Agreement, as this Stock
Pledge Agreement may be amended or modified from time to time, together with all
exhibits and schedules attached to this Stock Pledge Agreement from time to
time.
1.2. "Borrower" means Xxxx, Xxxx BC and P&C, individually and
jointly. All references to Borrower in this agreement mean each and all of
Xxxx, Xxxx BC and P&C.
Page 1-STOCK PLEDGE AGREEMENT
1.3. "Collateral" means all capital stock of P&C, now owned or
hereafter acquired by, or in the name of, Grantor, together with all products
and proceeds thereof.
1.4. "Event of Default" means and includes any of the Events of
Default set forth below in the section titled "Events of Default."
1.5. "Grantor" means Xxxx.
1.6. "Guarantor" means and includes without limitation, each and
all of the guarantors, sureties, and accommodation parties in connection with
the Indebtedness.
1.7. "Indebtedness" means the indebtedness evidenced by the Note,
including all principal and interest, together with all other indebtedness and
costs and expenses for which Grantor or Borrower is responsible under this
Agreement or under any of the Related Documents. In addition, the word
"Indebtedness" includes all other obligations, debts and liabilities, plus
interest thereon, of Borrower, or any one or more of them, to Lender, as well as
all claims by Lender against Borrower, or any one or more of them, whether
existing now or later; whether they are voluntary or involuntary, due or not
due, direct or indirect, absolute or contingent, liquidated or unliquidated;
whether Borrower may be liable individually or jointly with others; whether
Borrower may be obligated as guarantor, surety, accommodation party or
otherwise; whether recovery upon such indebtedness may be or hereafter may
become barred by any statute of limitations; and whether such indebtedness may
be or hereafter may become otherwise unenforceable.
1.8. "Lender" means U.S. Bank National Association, its successors
and assigns.
1.9. "Loan Agreement" means that certain Loan Agreement being
executed contemporaneously herewith, between Borrower and Lender, as that Loan
Agreement may be amended or modified from time to time.
1.10. "Note" means one or more of the Bridge Note, the MO Partners
Note, the Revolving Note, Term Note A, Term Note B and the 1998/1999
Construction Note (as those terms are defined in the Loan Agreement), together
with all renewals of, extensions of, modifications of, refinancings of,
consolidations of and substitutions for any one or more of them.
1.11. "Related Documents" mean and include without limitation all
promissory notes, credit agreements, loan agreements, guaranties, security
agreements, mortgages, deeds of trust, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection with the
Indebtedness.
2. GRANT OF SECURITY INTEREST. Grantor grants to Lender a security
interest in the Collateral to secure the Indebtedness and agrees that Lender
shall have the rights stated in this Agreement with respect to the Collateral,
in addition to all other rights which Lender may
Page 2-STOCK PLEDGE AGREEMENT
have by law. Contemporaneously with the execution of this Agreement, Grantor
shall deliver to Lender Stock Certificate Number 42, representing 170 shares of
common stock of P&C, and constituting all of the issued and outstanding stock of
P&C, together with a stock power endorsed in blank, to hold subject to the terms
of this Agreement. Grantor shall, in the future, similarly deposit any
certificates constituting products or proceeds of the Collateral or any
certificates representing additional stock of P&C acquired by Grantor in any
other manner, together with a stock power endorsed in blank with respect to each
such certificate.
3. REPRESENTATIONS AND WARRANTIES OF GRANTOR. Grantor represents and
warrants to Lender that:
3.1. Grantor has the full right, power and authority to enter into
this Agreement and to pledge the Collateral to Lender.
3.2. Grantor is the owner of the Collateral, free and clear of all
liens, encumbrances, or other matters that might affect title to the Collateral.
3.3. This Agreement creates a valid and enforceable perfected
security interest in all of the Collateral, subject to no other security
interest, lien or adverse claim; and no consent, filing, recording or
registration is required to perfect that security interest.
3.4. The authorized capital stock of P&C consists of ____________
shares of common stock, of which 170 shares are outstanding, validly issued,
fully paid, and nonassessable, all of which are owned by Grantor, and all of
which are pledged to Lender pursuant to this Agreement.
4. COVENANTS OF GRANTOR. Grantor agrees that:
4.1. Grantor shall not allow or grant any other lien or security
interest with respect to the Collateral.
4.2. Grantor shall not permit P&C to issue any shares of common or
preferred stock or securities convertible into common or preferred stock.
4.3. Grantor shall at all times own all of the issued and
outstanding stock of P&C.
4.4. Grantor shall procure, execute and deliver from time to time
any endorsements, assignments, financing statements, and other writings deemed
necessary or appropriate by Lender to perfect, maintain, and protect Lender's
security interest in the Collateral and its priority.
Page 3-STOCK PLEDGE AGREEMENT
4.5. If any portion of the Collateral at any time consists of
uncertificated securities, Grantor shall promptly notify Lender thereof and
shall promptly take all action Lender deems necessary or desirable to perfect
the security interest of Lender under applicable law and to permit Lender to
exercise any of its rights and remedies hereunder; and Grantor agrees to provide
an opinion of counsel satisfactory to Lender with respect to any such pledge of
uncertificated securities promptly upon request of Lender.
5. AUTHORIZED ACTION BY LENDER; PROXY. Grantor irrevocably appoints
Lender as attorney-in-fact and grants Lender a proxy to do (but Lender shall not
be obligated and shall incur no liability to Grantor or any third party for
failure to do so), after and during the continuance of an Event of Default, any
act that Grantor is obligated by this Agreement to do and to exercise such
rights and powers as Grantor might exercise with respect to the Collateral.
With respect to voting the Collateral, this paragraph constitutes an irrevocable
appointment of a proxy, coupled with an interest, and shall continue until the
Indebtedness is paid in full.
6. VOTING SHARES; CUSTODY OF CERTIFICATES.
6.1. As long as no Event of Default has occurred, Grantor shall be
entitled to vote the Collateral.
6.2. If at any time or from time to time, with respect to the
Collateral, Grantor shall receive or shall become entitled to receive any
dividend or any other distribution, whether in securities or other property, for
any reason, including, without limitation, by way of liquidation, stock split,
spin-off, split-up or reclassification, combination of shares, or the like, or
in case of reorganization, consolidation, or merger, Grantor shall immediately
deliver all such securities or property, in pledge, to Lender as security for
the payment and performance of the obligations secured by this Agreement. P&C
shall make all such payments directly to Lender. Lender may endorse, in
Lender's name or in the name of Grantor, any and all instruments by which any
payment on the Collateral may be made and may take such action as Lender may
deem appropriate from time to time, in Lender's name or in the name of Grantor,
to enforce collection of the Collateral. For such purpose, Grantor appoints
Lender the attorney-in-fact of Grantor, under a power coupled with an interest,
with full power of substitution.
6.3. As long as the obligations secured by this Agreement remain
outstanding, Grantor will not transfer, whether by sale, gift, or otherwise, any
ownership interest in the Collateral without Lender's prior written approval.
7. STANDARD OF CARE. Lender shall use reasonable care in the custody and
preservation of the Collateral in the possession of Lender, but shall have no
duty to take any action to preserve, enforce or establish any rights against the
issuer or third parties.
8. EVENTS OF DEFAULT. Each of the following shall constitute an Event of
Default under this Agreement:
Page 4-STOCK PLEDGE AGREEMENT
8.1. DEFAULT ON INDEBTEDNESS. Failure of Borrower to make any
payment on the Indebtedness within ten (10) days after the due date thereof.
8.2. DEFAULT UNDER THIS AGREEMENT. Any failure (other than as
specified in Paragraph 8.1.) by Grantor or Borrower to perform or comply with
any other term of this Agreement within 20 days after written notice by Lender
to Grantor specifying the nature of the nonperformance with reasonably
particularity.
8.3. OTHER DEFAULTS. Any default under any of the Related
Documents or under any other agreement between Lender and any one or more of
Borrower and Grantor.
8.4. FALSE STATEMENTS. Any warranty, representation or statement
made or furnished to Lender by or on behalf of Grantor or Borrower under this
Agreement is false or misleading in any material respect, either now or at the
time made or furnished.
8.5. DEFECTIVE COLLATERALIZATION. This Agreement or any of the
Related Documents ceases to be in full force and effect (including failure of
any collateral documents to create a valid and perfected first priority security
interest or lien) at any time and for any reason.
8.6. INSOLVENCY. The dissolution or termination of Grantor's or
Borrower's existence as a going business, the insolvency of Grantor or Borrower,
the appointment of a receiver for any part of Grantor or Borrower's property,
any assignment for the benefit of creditors, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Grantor or
Borrower.
8.7. CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of
foreclosure or forfeiture proceedings, whether by judicial proceeding,
self-help, repossession or any other method, by any creditor of Grantor or
Borrower or by any governmental agency against the Collateral or any other
collateral securing the Indebtedness. This includes a garnishment of any of
Grantor's or Borrower's deposit accounts with Lender. However, this Event of
Default shall not apply if there is a good faith dispute by Grantor or Borrower
as to the validity or reasonableness of the claim which is the basis of the
creditor or forfeiture proceeding and if Grantor or Borrower gives Lender
written notice of the creditor or forfeiture proceeding and deposits with Lender
monies or a surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve or
bond for the dispute.
8.8. EVENTS AFFECTING GUARANTOR. Any of the preceding events
occurs with respect to any Guarantor of any of the Indebtedness or such
Guarantor dies or becomes incompetent. Lender, at is option, may, but shall not
be required to, permit the Guarantor's estate to assume unconditionally the
obligations arising under the guaranty in a manner satisfactory to Lender, and,
in doing so, cure the Event of Default.
Page 5-STOCK PLEDGE AGREEMENT
8.9. INSECURITY. Lender, in good faith, deems itself insecure.
9. RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under
this Agreement, at any time thereafter, Lender shall have all the rights of a
secured party under the Oregon Uniform Commercial Code. In addition, and
without limitation, Lender may exercise any one or more of the following rights
and remedies:
9.1. ACCELERATE INDEBTEDNESS. Lender may declare the entire
Indebtedness, including any prepayment penalty which Borrower would be required
to pay, immediately due and payable, without notice.
9.2. REGISTER SHARES. Lender may register in Lender's name any or
all of the Collateral.
9.3. PROXY RIGHTS. Lender may exercise Lender's proxy rights with
respect to all or a portion of the Collateral. In such event, Grantor agrees to
deliver promptly to Lender further evidence of the grant of such proxy in any
form requested by Lender.
9.4. SELL THE COLLATERAL. Lender shall have full power to sell,
lease, transfer, or otherwise deal with the Collateral or proceeds thereof in
its own name or that of Grantor. Lender may sell the Collateral at public
auction or private sale. Unless the Collateral threatens to decline speedily in
value or is of a type customarily sold on a recognized market, Lender will give
Grantor reasonable notice of the time after which any private sale or any other
intended disposition of the Collateral is to be made unless Grantor has signed,
after an Event of Default occurs, a statement renouncing or modifying Grantor's
right to notification of sale. The requirements of reasonable notice shall be
met if such notice is given at least ten days before the time of the sale or
disposition. All expenses relating to the disposition of the Collateral,
including without limitation the expenses of retaking, holding, insuring,
preparing for sale and selling the Collateral, shall become a part of the
Indebtedness secured by this Agreement and shall be payable on demand, with
interest at the highest Note default rate from date of expenditure until repaid.
9.5. OBTAIN DEFICIENCY. Lender may obtain a judgment against
Borrower for any deficiency remaining on the Indebtedness due to Lender after
application of all amounts received from the exercise of the rights provided in
this Agreement.
9.6. OTHER RIGHTS AND REMEDIES. Lender shall have all the rights
and remedies of a secured creditor under the provisions of the Uniform
Commercial Code, as it may be amended from time to time. In addition, Lender
shall have and may exercise any or all other rights and remedies it may have
available at law, in equity, or otherwise.
9.7. CUMULATIVE REMEDIES. All of Lender's rights and remedies,
whether evidenced by this Agreement or the Related Documents or by any other
writing, shall be cumulative and may be exercised singularly or concurrently.
Election by Lender to pursue any
Page 6-STOCK PLEDGE AGREEMENT
remedy shall not exclude pursuit of any other remedy, and an election to make
expenditures or to take action to perform an obligation of Grantor or Borrower
under this Agreement, after Grantor or Borrower's failure to perform, shall not
affect Lender's right to declare a default and to exercise its remedies.
10. UNREGISTERED STOCK. At the time of any sale of the Collateral by
Lender, if all or any portion of the Collateral consists of restricted or
unregistered stock that is difficult to value and for which no public market
exists, then the parties agree that that Collateral is not subject to sale in a
"recognized market" as that term is described in ORS 79.5040. In that event,
Grantor and Lender wish to agree to reasonable standards for conducting a
commercially reasonable sale of the Collateral. Without limiting rights and
remedies otherwise available to Lender, the parties agree that compliance with
the following steps shall satisfy requirements of a commercially reasonable
sale:
10.1. The sale may be either a public or a private sale, at Lender's
discretion, and it may be for all or any portion of the Collateral.
10.2. Lender shall set a date for public sale of the Collateral, or
a date after which a private sale may occur, which date shall be not less than
ten days after the date notice of the sale is given to Grantor, and shall send
written notification to Grantor in advance regarding the date and the time of
the public sale, or the date after which a private sale may occur.
10.3. Any public sale shall take place at a site selected by Lender.
10.4. Immediately upon request, Grantor shall provide Lender with
information requested by Lender for compliance with state or federal securities
laws.
10.5. At any sale of the Collateral, Lender may restrict the
prospective bidders or purchasers to persons or entities who, by certain
representations made by them, would render registration of the sale under state
or federal securities law unnecessary.
11. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are
a part of this Agreement:
11.1. AMENDMENTS. This Agreement, together with any Related
Documents, constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Agreement. No alteration of or amendment to
this Agreement shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the alteration or amendment.
11.2. APPLICABLE LAW. This Agreement has been delivered to Lender
and accepted by Lender in the State of Oregon. If there is a lawsuit, Grantor
and Borrower agree upon Lender's request to submit to the jurisdiction of the
courts of Lane County, State of Oregon.
Page 7-STOCK PLEDGE AGREEMENT
Subject to the provisions on arbitration, this Agreement shall be governed by
and construed in accordance with the laws of the State of Oregon.
11.3. ARBITRATION. Bank and Borrower agree that all disputes,
claims and controversies between them, whether individual, joint, or class in
nature, relating in any way to this Agreement or the Related Documents,
including without limitation contract and tort disputes, shall be arbitrated
pursuant to the Rules of the American Arbitration Association, upon request of
either party. No act to take or dispose of any Collateral shall constitute a
waiver of this arbitration provision or be prohibited by this arbitration
provision. This includes, without limitation, obtaining injunctive relief or a
temporary restraining order; foreclosing by notice and sale under any deed of
trust or mortgage; obtaining a writ of attachment or imposition of a receiver;
or exercising any rights relating to personal property, including taking or
disposing of such property with or without judicial process pursuant to Article
9 of the Uniform Commercial Code. Any disputes, claims, or controversies
concerning the lawfulness or reasonableness or any act, or exercise of any
right, concerning any Collateral, including any claim to rescind, reform, or
otherwise modify any agreement relating to the Collateral, shall also be
arbitrated, provided, however, that no arbitrator shall have the right or other
power to enjoin or restrain any act of any party. Judgment upon any award
rendered by any arbitrator may be entered in any court having jurisdiction.
Nothing herein shall preclude any party from seeking equitable relief from a
court of competent jurisdiction. The statute of limitations, estoppel, waiver,
laches, and similar doctrines which would otherwise be applicable in any action
brought by a party shall be applicable in any arbitration proceeding, and the
commencement of any arbitration proceeding shall be deemed the commencement of
any action for these purposes. The Federal Arbitration Act shall apply to the
construction, interpretation, and enforcement of this arbitration provision.
11.4. ATTORNEYS' FEES; EXPENSES. Grantor and Borrower agree to pay
upon demand all of Lender's costs and expenses, including attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of this
Agreement. Lender may pay someone else to help enforce this Agreement, and
Grantor and Borrower shall pay the costs and expenses of such enforcement.
Costs and expenses include Lender's attorneys' fees and legal expenses whether
or not there is a lawsuit, including attorneys' fees and legal expenses for
bankruptcy proceedings (and including efforts to modify or vacate any automatic
stay or injunction), appeals, and any anticipated post-judgment collection
services. Grantor and Borrower also shall pay all court costs and such
additional fees as may be directed by the court.
11.5. NOTICES. Any notices required or permitted to be given under
the terms of this Agreement or any Related Document shall be in writing and may
be given by personal delivery; first class mail; certified mail, return receipt
requested; or nationally recognized overnight courier; directed to the parties
at the following addresses, or such other address as any party may designate in
writing prior to the time of the giving of such notice, or in any other manner
authorized by law:
Page 8-STOCK PLEDGE AGREEMENT
Grantor and 0000 Xxxx 00xx Xxxxxx
Xxxxxxxx: Xxxxxx, XX 00000
Lender: Oregon Corporate Banking
000 X.X. Xxx
XX-0 Corporate Loan Servicing Center
Xxxxxxxx, XX 00000
With a copy to: Attn: Xxxxx Xxxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
Any notice given shall be effective when actually received; or if given by
certified mail, then 48 hours after deposit of such notice in the United States
mail with postage prepaid; or if given by overnight courier, then 48 hours after
the deposit of such notice with the overnight courier with delivery charges
prepaid.
11.6. PREFERENCE PAYMENTS. Any monies Lender pays because of an
asserted preference claim in Borrower's bankruptcy will become a part of the
Indebtedness.
11.7. SEVERABILITY. If a court of competent jurisdiction finds any
provision of this Agreement to be invalid or unenforceable as to any person or
circumstance, such finding shall not render that provision invalid or
unenforceable as to any other persons or circumstances. If feasible, any such
offending provision shall be deemed to be modified to be within the limits of
enforceability or validity; however, if the offending provision cannot be so
modified, it shall be stricken and all other provisions of this Agreement in all
other respects shall remain valid and enforceable.
11.8. SUCCESSOR INTERESTS. Subject to the limitations set forth
above on transfer of the Collateral, this Agreement shall be binding upon and
inure to the benefit of the parties, their successors and assigns.
11.9. WAIVER. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by Lender
of a provision of this Agreement shall not prejudice or constitute a waiver of
Lender's right otherwise to demand strict compliance with that provision or any
other provision of this Agreement. No prior waiver by Lender, nor any course of
dealing between Lender and Grantor, shall constitute a waiver of any of Lender's
rights or of any of Grantor's obligations as to any future transactions.
Whenever the consent of Lender is required under this Agreement, the granting of
such consent by Lender in any instance shall not constitute continuing consent
to subsequent instances where such consent is required and in all cases such
consent may be granted or withheld in the sole discretion of Lender.
Page 9-STOCK PLEDGE AGREEMENT
11.10. EXECUTION BY FACSIMILE; COUNTERPARTS. This Agreement may be
executed in several counterparts, each of which will be deemed to be an original
and all of which together constitute one and the same instrument. Delivery of
an executed copy of this Agreement by telecopy, telex or other means of
electronic communication producing a printed copy will be deemed to be an
execution and delivery of this Agreement on the date of such communication by
the parties so delivering such a copy. The party so delivering such a copy via
electronic communication shall deliver an executed original of this Agreement to
the other party within one week of the date of delivery of the copy sent via
electronic communication.
DATED: September 1, 1998.
XXXX MEDIA CORPORATION
By: /s/ Xxxxx Xxxx
------------------------------------
Xxxxx Xxxx
President
XXXX MEDIA LTD.
By: /s/ Xxxxx Xxxx
------------------------------------
Xxxxx Xxxx
Treasurer
XXXXXXX & COINE, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
Vice President
Page 10-STOCK PLEDGE AGREEMENT
