EXHIBIT 10.1
STOCK REDEMPTION AGREEMENT
THIS AGREEMENT is made this 18th day of November, 1995, by and between
LEASE COMPANIES (hereinafter "Lease Companies"), ▇▇▇▇▇▇▇ ▇. LEASE, ▇▇▇▇ ▇.
LEASE and SKYWAY ADVERTISING, INC. (hereinafter "Skyway").
RECITALS
WHEREAS, Lease Companies is a Minnesota partnership with offices at ▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ whose business is to provide
management services to various business entities; and
WHEREAS, Lease Companies has two (2) general partners, ▇▇▇▇▇▇▇ ▇. Lease
and ▇▇▇▇ ▇. Lease; and
WHEREAS, Lease Companies has provided management related functions for
the benefit of and under contract to Skyway and is owed fees for management
services performed; and
WHEREAS, Lease Companies has extended credit to Skyway in the
cumulative amount of Sixteen Thousand and no/lOO Dollars ($16,000.00); and
WHEREAS, ▇▇▇▇▇▇▇ ▇. Lease and ▇▇▇▇ ▇. Lease are majority shareholders
of Skyway, holding 220,000 shares of Skyway stock respectively; and
WHEREAS, Skyway desires to retire the respective shares now owned by
▇▇▇▇▇▇▇ ▇. Lease and ▇▇▇▇ ▇. Lease, who are mutually desirous of such an
arrangement, and to retire obligations owed to Lease Companies, subject to
the terms and conditions set forth" below;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants set forth herein, and for good and valuable consideration, the
amount of which is established below, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. Skyway Financial Obligation to Lease Companies. Skyway agrees to pay Lease
Companies the sum of One Hundred Nine Thousand Three Hundred and no/lOO
Dollars ($109,300.00) which sum represents the following:
a. Management Fees. Accrued management fees are owed to Lease
Companies in the sum of Ninety-three Thousand Three Hundred and no/lOO
Dollars ($93,300.00);
b. Retirement of Debt to Lease Companies. An additional Sixteen
Thousand and no/lOO Dollars ($16,000.00) owed to Lease Companies, by reason
of two loans, the first of which was entered into on the 19th day of
September, 1995, in the amount of $6,000.00, as evidenced by promissory
note of said date and the second loan which was entered into on the 22nd
day of September, 1995, in the amount of $10,000.00, as evidenced by
promissory note of said date.
2. Skyway Financial Obligation to ▇▇▇▇ ▇. Lease and ▇▇▇▇▇▇▇ ▇. Lease. In
addition to payment to Lease Companies, Skyway agrees to pay ▇▇▇▇ ▇. Lease
the sum of Eighty-eight Thousand and no/lOO Dollars ($8&, 000.00) and further
agrees to pay ▇▇▇▇▇▇▇ ▇. Lease the sum of
Eighty-eight Thousand and no/lOO Dollars ($88,000.00), in exchange for
retirement and redemption of the 220,000 respective shares of stock held
by each.
3. Terms of Payment.
a. Down Payment. At the time of closing, Skyway Advertising shall
deliver two certified bank checks, one payable to Lease Companies in the
amount of Sixteen Thousand and no/lOO Dollars ($16,000.00), which sum shall
represent the retirement of the $16,000.00 debt, referenced at paragraph 1(b)
above, due and owing to Lease Companies, and the second, payable to ▇▇▇▇ ▇.
Lease and ▇▇▇▇▇▇▇ ▇. Lease in the amount of Eighty-four Thousand and no/lOO
Dollars ($84,000.00) which sum shall be applied toward the retirement of
105,000 shares of stock held by ▇▇▇▇ ▇. Lease, retired at per share, as
well as 105,000 shares of stock held by ▇▇▇▇▇▇▇ ▇. Lease, retired $0.40
per share.
b. Promissory Note. Lease Companies, ▇▇▇▇ ▇. Lease and ▇▇▇▇▇▇▇ ▇.
Lease, shall finance the remaining balance of the purchase price of One
Hundred Eighty-five Thousand Three Hundred and no/lOO Dollars ($185,300.00)
in accordance with the terms and conditions of the two (2) Promissory Notes
executed simultaneously herewith. Any breach under this Agreement and
obligations herein shall be deemed a default under the Promissory Notes.
This remedy is cumulative of all other remedies provided by law or in
equity.
4. Security Agreements. Skyway's obligations hereunder are in addition to
those within the Security Agreements executed simultaneously hereto.
5. Miscellaneous.
a. Option to convert. Lease Companies, ▇▇▇▇ ▇. Lease and ▇▇▇▇▇▇▇ ▇.
Lease shall each have the unqualified option, anytime prior to December 1, 1997,
to purchase Skyway shares,in lieu of current and/or future payments due to each
pursuant to and in accordance with therespective Promissory Notes executed this
date.
Any election to convert current and/or future payments into stock
shall be made in writing and delivered to Skyway at its corporate address.
The purchase price option to elect for said election is hereby established
by the parties at $0.40 per share. This option is strictly limited to
that number of shares which can be purchased by the parties at the purchase
price, based upon the remaining principal balance of the parties' respective
Promissory Note.
b. Law Governing. The parties agree that this agreement has been
entered into pursuant to the laws of Minnesota, and that Minnesota law sha11
govern any future interpretation issues, disputes of any nature or questions
of law.
c. Venue. This contract has been negotiated in, and the transaction
closed, at ▇▇▇▇▇▇ County, Minnesota. The parties agree that for purposes of
any subsequent dispute, venue shall be vested and lie solely in ▇▇▇▇▇▇ County
District Court.
d. Parol Evidence. This agreement, coupled with the Promissory
Note, Security Agreement, Personal Guaranty and UCC-1, constitutes a full,
final and integrated expression of the parties agreement. Any prior or
contemporaneous oral negotiations not expressed herein are of no
effect.
e. Opportunity to Seek Advice of Legal Counsel and Accountants. The
parties hereby agree that each party had ample opportunity to discuss this
agreement with legal counsel; have satisfied themselves that said agreement
is in their best interests; have sought advice from their
accountants as to
all potential tax ramifications necessitated or triggered by this agreement.
This agreement is executed this 28th day of November, 1995.
SKYWAY ADVERTISING INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Subscribed and sworn to before me ▇▇▇▇▇ ▇. ▇▇▇▇▇
this 28th day of November, 1995
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public
LEASE COMPANIES
By:/s/ ▇▇▇▇ ▇. Lease
Its: Partner
Subscribed and sworn to before me
this 28th day of November 1995. ▇▇▇▇▇ ▇. ▇▇▇▇▇
NOTARY PUBLIC MINNESOTA
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ My comm. Exp.Jan.21.2000
Notary Public
▇▇▇▇▇▇▇ ▇. Lease
subscribed and sworn to before me
this 28th day of November, 1995. ▇▇▇▇▇ ▇. ▇▇▇▇▇
NOTARY PUBLIC MINNESOTA
My Comm. EXP. Jan. 31, 2000
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Notary Public
▇▇▇▇ ▇. Lease
Subscribed and sworn to before me
this 28th day of November, 1995. ▇▇▇▇▇ ▇. ▇▇▇▇▇
NOTARY PUBLIC MINNESOTA
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ My Comm. Exp. Jan. 31, 2000
Notary Public
PROMISSORY NOTE
▇▇▇▇▇▇▇ ▇. LEASE
$ 46,000.00
FOR VALUE RECEIVED, the undersigned ("Maker"), hereby promises to pay
to the order of ▇▇▇▇▇▇▇ ▇. Lease, ("▇▇▇▇▇▇▇ ▇. Lease"), at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as the holder hereof
advises in writing from time to time, the principal sum of Forty-six Thousand
and no/lOO Dollars ($46,000.00) together with interest thereon,
as hereinafter described.
The principal of this Note from day to day unpaid shall bear interest
at a rate of eleven percent (11%) per annum and such interest shall be
computed on the basis of a year of 365 or 366 days, as the case may be,
and on actual days elapsed. Interest sahll commence on December l, 1995.
The principal and interest of this Note shall be payable in 84 equal
monthly installments, commencing April 1, 1996, and continuing on the 1st day
of each month thereafter until this Note is paid in full; provided however,
that the first three (3) installments will be interest only payments.
Any payments of principal and interest due hereunder which are not
paid when due, and other amounts which may be owed by Maker hereunder,
including without limitation attorney's fees, shall bear interest at the
highest lawful rate and, if no highest lawful rate is established by law, at
the rate of eighteen percent (18%) per annum. The provisions of this
paragraph shall not be construed as waiving the right of the holder hereof
to punctual payment of principal or interest, or any part thereof, when due
hereunder.
Maker may prepay all or any part of the principal or accrued interest
at any time and from time to time, without premium or penalty, by providing
▇▇▇▇▇▇▇ ▇. Lease with fifteen (15) days written notice of his intention to
prepay; provided nonetheless, that Maker's right to prepay remains subject
to ▇▇▇▇▇▇▇ Lease's unqualified -option to convert balance due under this
Promissory Note into Skyway shares as established in accordance with
provision 5(a) of that Stock Redemption Agreement, executed simultaneous
herewith, such that Maker is precluded from obviating or attempting to
obviate Lease's right to convert loan balance into Skyway shares by making
prepayment, whether partial or full. All partial prepayments shall be
applied first to accrued and unpaid interest and then to principal
in the inverse order of maturity.
The holder hereof may declare the entire unpaid principal of and
accrued interest on this Note immediately due and payable, foreclose any
liens or security interests securing all or any part hereof, offset against
this Note any sum or sums owed by the" holder hereof to Maker, or
exercise any other right of remedy to which the holder hereof may be entitled by
agreement, at law, or in equity, if (a) Maker fails or refuses to pay any part
of the principal or accrued interest when due, (b) a default should occur under
this Note or under any agreement, document, instrument securing or assuring
payment of any part hereof or executed in connection herewith, or (c) Maker
shall become insolvent, voluntarily or involuntarily be made the subject of
any proceeding provided for by any bankruptcy or similar debtor relief laws.
Each right and remedy available to the holder hereof shall be cumulative of
and in addition to each other such right and remedy. No delay on the part
of the holder hereof in the exercise of any right or remedy available to the
holder hereof shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or remedy preclude other or further
exercise thereof or exercise of any other such right or remedy.
If this Note is placed in the hands of an attorney for collection, or
if it is collected through any legal proceedings, Maker agrees to pay all
court costs, reasonable attorneys' fees and other costs of collection of the
holder hereof.
Any provision herein, or in any document or agreement securing this
Note or in any other document executed in connection herewith, or in any
other agreement or commitment, whether written or oral, express or implied,
to the contrary notwithstanding, no holder hereof shall in any
event be entitled to receive or collect, nor shall or may amounts
received hereunder be credited so that any holder hereof shall be paid
as interest a sum greater than the maximum amount
permitted by applicable law to be charged to the person, firm, or
corporation primarily obligated to pay this Note at the time in
question. If any construction of this Note, any document or
agreement securing this Note, 6r in any and all other papers,
agreements, or commitments' indicated a different right
given to holder hereof to ask for, demand, or receive any larger sum as
interest, such is a mistake in calculation or wording which this clause
shall override and control, it being the intention of the parties that
this Note and all other instruments securing the payments of this Note
shall in allthings comply with applicable law, and proper adjustment
shall automatically be made accordingly. In the event any holder
hereof ever receives, collects, or applies as interest any sum in
excess of the maximum legal rate, such excess amount shall be applied
to the reduction of the unpaid principal balance of this Note in the
inverse order of maturity, and if this Note is paid in full, any
remaining excess shall be paid to Maker. In determining whether
or not the interest paid or payable under any specific contingency
exceeds the highest lawful rate, Maker and holder hereof shall, to the
maximum extent permitted under applicable law, (a) characterize any
nonprincipal payment as an expense, fee, or premium rather than as
interest, (b) exclude voluntary prepayments and the effects thereof,
and (c) "spread" the total amount of interest throughout the entire
term of this Note so that the interest rate is uniform throughout
the entire term of this Note; provided that, if this Note is paid and performed
in full prior to the end of the full contemplated term hereof, and if the
interest received for the actual period of existence hereof exceeds the
maximum lawful rate, the holder hereof shall refund to
Maker the amount of such excess or credit the amount against the
principal balance of this Note at the time in question.
Each Maker, co-maker, endorser, surety, and guarantor hereby waives
demand for payment, presentment for payment, notice of nonpayment, protest,
notice of protest, notice of dishonor, notice of intention to accelerate
maturity, notice of acceleration of maturity, notice of
intent to foreclose on any collateral securing this Note,
and all other notices as to this Note and
diligence in collection as to each and every payment due hereunder, and
agrees that without any notice the holder
hereof may take additional security herefor or
may release any or all security hereof, or alone, or
together with any present or future owner or owners
of any property covered by any instrument
or agreement given to secure this Note,
may from time to time extend, renew or otherwise modify
the date or dates or amount or amounts of payment
above recited, or the holder hereof may from
time to time release any part or parts of the
property and interests securing this Note, with or without
consideration, and that in any such case, each Maker,
co-maker, endorser, surety, and guarantee
shall continue to be bound hereby and to be
liable to pay the unpaid balance of the indebtedness
evidenced hereby, as so additionally secured, extended,
renewed, or modified, notwithstanding any such
release.
Should this Note be signed or endorsed by more than one person or
entity, all of the obligations contained herein shall be considered the
joint and several obligations of each Maker,
co-maker, endorser, surety, and guaranty hereof.
This Note may be secured by certain collateral more fully described in
a Security Agreement executed by Maker and delivered to ▇▇▇▇▇▇▇ ▇. Lease.
Maker shall deliver to the holder hereof such financial and operating
statements as the holder hereof may request from time to time, and in such
form as is reasonably acceptable to such
holder.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA FOR ALL PURPOSES.
This Note is executed this 28th day of November, 1995.
MAKER:
SKYWAY ADVERTISING
INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Exec. Vice President
PROMISSORY NOTE
▇▇▇▇ ▇. LEASE
$ 46,000.00
FOR VALUE RECEIVED, the undersigned ("Maker"), hereby promises to pay
to the
order of ▇▇▇▇ ▇. Lease, ("▇▇▇▇ Lease"), at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
or
at such other address as the holder hereof advises in writing from time to time,
the principal sum
of Forty-six Thousand and no/lOO Dollars ($46,000.00) together with interest
thereon, as hereinafter described.
The principal of this Note from day to day unpaid shall bear interest
at a rate of eleven percent (11%) per annum and such interest shall be computed
on the basis of a year of 365 or 366 days, as the case may be, and on actual
days elapsed. Interest shall commence on December l, 1995.
The principal and interest of this Note shall be payable in 84 equal
monthly installments, commencing April 1, 1996, and continuing on the 1st day
of each month thereafter until this Note is
paid in full; provided however, that the first three (3)
installments will be interest only payments.
Any payments of principal and interest due hereunder which are not
paid when due, and other amounts which may be owed by Maker hereunder,
including without limitation attorney's fees, shall bear interest at the
highest lawful rate and, if no highest lawful rate is established by law,
at the rate of eighteen percent (18%) per annum. The provisions of this
paragraph shall not be construed as waiving the right of the holder hereof
to punctual payment of principal or interest, or any part
thereof, when due hereunder.
Maker may prepay all or any part of the principal or accrued interest
at any time and from time to time, without premium or penalty, by providing
▇▇▇▇ ▇. Lease with fifteen (15) days written notice of his intention to
prepay; provided nonetheless, that Maker's right to prepay
remains subject to ▇▇▇▇ Lease's unqualified option to convert balance due
under this Promissory Note into Skyway shares as established in accordance
with provision 5(a) of that Stock Redemption Agreeement, executed
simultaneous herewith, such that Maker is precluded from obviating or
attempting to obviate Lease's right to convert loan balance into Skyway
shares by making prepayment, whether partial or full. All partial
prepayments shall be applied first to accrued and unpaid interest and
then to principal in the inverse order of maturity.
The holder hereof may declare the entire unpaid principal of and
accrued interest on this Note immediately due and payable, foreclose any
liens or security interests securing all or any
part hereof, offset against this Note any sum or sums owed by the
holder hereof to Maker, or exercise any other right of remedy to
which the holder hereof may be entitled by agreement, at law, or in
equity, if (a) Maker fails or refuses to pay any part of the principal or
accrued interest when due, (b) a default should occur under this Note or
under any agreement, document, instrument securing or assuring payment of
any part hereof or executed in connection herewith, or (c) Maker shall become
insolvent, voluntarily or involuntarily be made the subject of any proceeding
provided for by any bankruptcy or similar debtor relief laws. Each right
and remedy available to the holder hereof shall be cumulative of and in
addition to each other such right and remedy. No delay on the part of the
holder hereof in the exercise of any right or remedy available to the holder
hereof shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or remedy preclude other
or further exercise thereof or exercise of any other such right or
remedy.
If this Note is placed in the hands of an attorney for collection, or
if it is collected through any legal proceedings, Maker agrees to pay all
court costs, reasonable attorneys' fees and other costs of collection of
the holder hereof.
Any provision herein, or in any document or agreement securing this
Note or in any other document executed in connection herewith, or in any
other agreement or commitment, whether written or oral, express or implied,
to the contrary notwithstanding, no holder hereof shall in any
event be entitled to receive or collect, nor shall or may amounts received
hereunder be credited so that any holder hereof shall be paid as interest a .
sum greater than the maximum amount permitted by
applicable law to be charged to the person, firm, or corporation
primarily obligated to pay this Note at the time in question. If
any construction of this Note, any document or agreement securing
this Note, or in any and all other papers, agreements, or commitments
indicated a different right given to holder hereof to ask for, demand,
or receive any larger sum as interest, such is a mistake in
calculation or wording which this clause shall override and
control, it being the intention of the
parties that this Note and all other instruments securing
the payments of this Note shall in all things
comply with applicable law, and proper adjustment shall automatically be made
accordingly. In the event any holder hereof ever receives, collects, or
applies as interest any sum in excess of the
maximum legal rate, such excess amount shall be applied to the reduction
of the unpaid principal balance of this Note in the inverse order of
maturity, and if this Note is paid in full, any remaining
excess shall be paid to Maker. In determining whether or not
the interest paid or payable under any specific contingency exceeds
the highest lawful rate, Maker and holder hereof shall, to the
maximum extent permitted under applicable law, (a) characterize
any nonprincipal payment as an expense, fee, or premium rather
than as interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) "spread" the total amount of interest throughout
the entire term of this Note so that the interest
rate is uniform throughout the entire term of this Not,e;
provided that, if this Note is paid and performed in full prior
to the end of the full contemplated term hereof, and if the interest received
for the actual period of existence hereof exceeds the maximum lawful rate,
the holder hereof shall refund to Maker the amount of such excess or credit
the amount against the principal balance of this Note at the time in
question.
Each Maker, co-maker, endorser, surety, and guarantor hereby waives
demand for payment, presentment for payment, notice of nonpayment, protest,
notice of protest, notice of dishonor, notice of intention to accelerate
maturity, notice of acceleration of maturity, notice of intent to foreclose
on any collateral securing this Note, and all other notices as to this Note
and diligence in collection as to each and every payment due hereunder, and
agrees that without any notice the holder hereof may take additional
security herefor or may release any or all security hereof, or alone,
or together with any present or future owner or owners of any property covered
by any instrument or agreement given to secure this Note, may from time to
time extend, renew or otherwise modify the date or dates or amount or amounts
of payment above recited, or the holder hereof may from time to time release
any part or parts of the property and interests securing this Note, with or
without consideration, and that in any such case, each Maker, co-maker,
endorser, surety, and guarantee shall continue to be bound hereby and to
be liable to pay the unpaid balance of the indebtedness evidenced hereby,
as so additionally secured, extended, renewed, or modified,
notwithstanding any such release.
Should this Note be signed or endorsed by more than one person or
entity, all of the obligations contained herein shall be considered the
joint and several obligations of each Maker, co-maker, endorser, surety,
and guaranty hereof.
This Note may be secured by certain collateral more fully described in
a Security Agreement executed by Maker and delivered to ▇▇▇▇ ▇. Lease.
Maker shall deliver to the holder hereof such financial and
operating statements as the holder hereof may request from time to time,
and in such form as is reasonably acceptable to such
holder.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA FOR ALL PURPOSES.
This Note is executed this 28th day of November, 1995.
MAKER:
SKYWAY ADVERTISING INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Exec. Vice President
PROMISSORY NOTE
LEASE COMPANIES
$ 93,300.00
FOR VALUE RECEIVED, the undersigned ("Maker"), hereby promises to pay
to the order of Lease Companies, a Minnesota Partnership ("Lease Companies"),
at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address.
as the holder hereof advises in writing from time to time, the principal sum of
Ninety-three Thousand Three Hundred and no/lOO Dollars ($93,300.00) together
with interest thereon, as hereinafter described.
The principal of this Note from day to day unpaid shall bear interest
at a rate of eleven percent (11%) per annum and such interest shall be computed
on the basis of a year of 365 or 366 days, as the case may be, and on actual
days elapsed. Interest shall commence on December l, 1995.
The principal and interest of this Note shall be payable in 84 equal
monthly installments, commencing April l, 1996, and continuing on the 1st
day of each month thereafter until this Note is paid in full; provided
however, that the first three (3) installments will be interest only payments.
Any payments of principal and interest due hereunder which are not paid
when due, and other amounts which may be owed by Maker hereunder, including
without limitation attorney's fees, shall bear interest at the highest lawful
rate and, if no highest lawful rate is established by law, at the
rate of eighteen percent (18%) per annum. The provisions of this
paragraph shall not be construed as waiving the right of the holder
hereof to punctual payment of principal or interest, or any part
thereof, when due hereunder.
Maker may prepay all or any part of the principal or accrued interest
at any time and from time to time, without premium or penalty, by providing
Lease Companies with fifteen (15) days written notice of his intention to
prepay; provided nonetheless, that Maker's right to prepay remains subject
to Lease Companies' unqualified option to convert balance due under this
Promissory Note into Skyway shares as established in accprdance with
provision 5(a) of that Stock Redemption Agreement, executed simultaneous
herewith, such that Maker is precluded from obviating or attempting to
obviate Lease's right to convert loan balance into Skyway shares by making
prepayment, whether partial or full. All partial prepayments shall be
applied first to accrued and unpaid interest and then to principal in
the inverse order of maturity.
The holder hereof may declare the entire unpaid principal of and
accrued interest on this Note immediately due and payable, foreclose any
liens or security interests securing all or any part hereof, offset against
this Note any sum or sums owed by the holder hereof to Maker, or exercise
any other right of remedy to which the holder hereof may be entitled by
agreement, at law, or in equity, if (a) Maker fails or refuses to pay any
part of the principal or accrued interest when due, (b) a default should
occur under this Note or under any agreement, document, instrument securing or
assuring payment of any part hereof or executed in connection herewith, or (c)
Maker shall become insolvent, voluntarily or involuntarily be made the subject
of any proceeding provided for by any bankruptcy or similar debtor relief
laws. Each right and remedy available to the holder hereof shall
be cumulative of and in addition to each other such right and remedy.
No delay on the part of the holder hereof in the exercise of any right or
remedy available to the holder hereof shall operate as a
waiver thereof, nor shall any single or partial exercise of any such
right or remedy preclude other or further exercise thereof or exercise
of any other such right or remedy.
If this Note is placed in the hands of an attorney for collection, or
if it is collected through any legal proceedings, Maker agrees to pay all court
costs, reasonable attorneys' fees and other costs of collection of the holder
hereof.
Any provision herein, or in any document or agreement securing this
Note or in any other document executed in connection herewith, or in any
other agreement or commitment,
whether
written or oral, express or implied, to the contrary notwithstanding, no holder
hereof shall in any event be entitled to receive or collect, nor shall or may
amounts received hereunder be credited so that any holder hereof shall be paid
as interest a sum greater than the maximum amount permitted by
applicable law to be charged to the person, firm, or corporation
primarily obligated to pay this Note at the time in question. If
any construction of this Note, any document or agreement securing this
Note, e'r in any and all other papers, agreements, or commitments'
indicated a different right given to holder hereof to ask for,
demand, or receive any larger sum as interest, such is a mistake in
calculation or wording which this clause shall override and control,
it being the intention of the parties that this Note and all other
instruments securing the payments of this Note shall in all
things comply with applicable law, and proper adjustment shall
automatically be made accordingly. In the event any holder hereof
ever receives, collects, or applies as interest any sum in excess of the
maximum legal rate, such excess amount shall be applied to the reduction
of the unpaid principal balance of this Note in the inverse order of
maturity, and if this Note is paid in full, any remaining excess shall
be paid to Maker. In determining whether or not the interest paid or
payable under any specific contingency exceeds the highest lawful rate,
Maker and holder hereof shall, to the maximum extent permitted under
applicable law, (a) characterize any nonprincipal payment as an expense,
fee, or premium rather than as interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) "spread" the total amount of interest
throughout the entire term of this Note so that the interest
rate is uniform throughout the entire term of this Note; provided that, if this
Note is paid and performed in full prior to the end of the full contemplated
term hereof, and if the interest received for the actual period of existence
hereof exceeds the maximum lawful rate, the holder hereof
shall refund to Maker the amount of such excess or credit the
amount against the principal balance of this Note at the time in question.
Each Maker, co-maker, endorser, surety, and guarantor hereby waives
demand for payment, presentment for payment, notice of nonpayment, protest,
notice of protest, notice of dishonor, notice of intention to accelerate
maturity, notice of acceleration of maturity, notice of
intent to foreclose on any collateral securing this Note, and
all other notices as to this Note and diligence in collection as
to each and every payment due hereunder, and agrees that without any
notice the holder hereof may take additional security herefor or may
release any or all security hereof, or alone, or together with any
present or future owner or owners of any property covered by any
instrument or agreement given to secure this Note, may from time to
time extend, renew or otherwise modify the date or dates or amount
or amounts of payment above recited, or the holder hereof may from
time to time release any part or parts of the property and interests securing
this Note, with or without consideration, and that in any such case, each
Maker, co-maker, endorser, surety, and guarantee shall continue to be bound
hereby and to be liable to pay the unpaid balance of the indebtedness
evidenced hereby, as so additionally secured, extended, renewed, or modified,
notwithstanding any such release.
Should this Note be signed or endorsed by more than one person or
entity, all of the obligations contained herein shall be considered the
joint and several obligations of each Maker, co-maker, endorser, surety,
and guaranty hereof.
This Note may be secured by certain collateral more fully described in
a Security Agreement executed by Maker and delivered to Lease Companies.
Maker shall deliver to the holder hereof such financial and operating
statements as the holder hereof may request from time to time, and in such
form as is reasonably acceptable to such holder.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAWS OF THE STATE OF MINNESOTA FOR ALL PURPOSES.
This Note is executed this 28th day of November, 1995.
MAKER:
SKYWAY ADVERTISING INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ It Exec. Vice President
GUARANTY
LEASE COMPANIES
THIS GUARANTY is made as of the date set forth on the signature page
hereof by the undersigned (hereinafter referred to as "Guarantor" whether one
or more) in favor of Lease Companies, a Minnesota Partnership ("Lease
Companies").
FOR VALUE RECEIVED, the receipt and sufficiency of which is hereby
acknowledged, and in order to induce Lease Companies to extend credit to the
persons or entities listed under paragraph 10(e), below (collectively,
whether one or more, the "Borrowers"), but without requiring Lease Companies
to extend such credit, Guarantor guarantees to Lease Companies
the due and punctual payment and performance when due (whether by the
terms thereof or as the result of any power to accelerate) of the
Obligations (as that term is hereinafter defined). All
payments on this Guaranty shall be in lawful money of the United States
and shall be made to Lease Companies at its office at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as Lease Companies shall
from time to time advise in writing.
l. Obligations. The Obligations (herein so called) guaranteed hereby
are all indebtedness, obligations, and liabilities of any kind of Borrowers or
any one or more of them to Lease Companies and due fulfillment and performance
of all obligations now or hereafter owed by Borrowers or any one or more of
them to Lease Companies.
2. Nature of Guaranty. This guaranty is an irrevocable, absolute,
complete and continuing guaranty of payment and not a guaranty of collection.
The liability of Guarantor for the payment of the Obligations guaranteed
hereby shall be primary and not secondary. Guarantor hereby acknowledges
and agrees that the liability of all persons to pay and satisfy the Obligations
pursuant to their respective guaranties (including Guarantor's obligations
hereunder) shall be joint and several.
3. Guarantor's Waivers. Guarantor hereby waives presentment, demand,
notice of non-payment and notice of protest, dishonor, notice of default,
notice of intent to accelerate, notice acceleration, notice of intent to
proceed against co1lateral, or any other notice whatsoever on or with
respect to any and all of the Obligations, and also notice of acceptance of
this Guaranty, acceptance on the party of Lease Compaines being conclusively
presumed by its request for this Guaranty and delivery of the same to it.
Guarantor further waives any right to require Lease Companies, and it shall
not be necessary for Lease Companies in order to enforce payment by Guarantor
hereunder, to first (a) proceed against Borrowers or any other person liable
on the Obligations, (b) proceed against or exhaust any security given to
secure the Obligations, (c) have Borrowers joined with Guarantor in
any suit arising out of this Guaranty and/or any of the Obligations, or
(d) pursue any other remedy in Lease Companies' power whatsoever. Lease
Companies shall not be required to mitigate damages or take any action to
reduce, collect, or enforce the Obligations. Guarantor further waives any
defense arising by reason of any disability, lack of corporate authority or
power, or other defense of Borrowers or any other guarantors of any of the
Obligations, and shall remain liable hereon regardless of whether Borrowers
or any other guarantors be found not liable thereon for any reason.
Guarantor hereby waives all rights of subrogation and contribution
against Borrowers and waives any right to enforce any remedy which
Lease Companies now has or may hereafter have against Borrowers, and
waives any benefit of any right to participate in any security now or
hereafter held by Lease Companies.
4. Payment. Guarantor will, within twenty (20) business days of his
receipt of a notice from Lease Companies of the failure of Borrowers to pay
an Obligations at maturity, pay to Lease Companies the amount due and unpaid
by Borrowers and guaranteed hereby. The failure of Lease Companies to give
this notice shall not in any way release Guarantor hereunder.
5. Lease Companies' Expenses. If Guarantor fails to pay the
Obligations after notice from Lease Companies of Borrower's failure to
pay any Obligations at maturity, and if Lease Companies obtains the
services of an attorney for collection of amounts owing by Guarantor hereunder,
Guarantor agrees to pay to Lease Companies the reasonable attorneys' fees and
its reasonable costs and expenses which are incurred by Lease Companies in
connection therewith.
6. Events and Circumstances Not Reducing or Discharging Guarantor's
Obligations. Guarantor hereby consents and agrees to each of the following,
and agrees that Guarantor's obligations under this Guaranty Agreement shall
not be released, diminished, impaired, reduced, or adversely affected by any
of the following, and waives any rights (including, without limitation,
rightsto notice) whic'h Guarantor might otherwise have as a result of or
in connection with any of the following:
(a) Modifications, etc. Any renewal, extension, modification,
alteration, rearrangement, forbearance, or compromise of all or any
party of the Obligations or any instrument evidencing
the Obligations or executed in connection therewith, or any contract
or understanding between Borrowers or any one or more of them and
Lease Companies, or any other parties, pertaining to the
Obligations;
(b) Release of Obligors. Any full or partial release of the liability
of Borrowers or any one or more of them on the Obligations or any part thereof,
or of any co-guarantors, or any other person or entity now or hereafter liable,
whether directly or indirectly, jointly, severally, or jointly and severally
, to pay, perform, guarantee, or assure the payment of the Obligations or any
part thereof r
(c) Release of Collateral. Any release of, failure to perfect, or
failure to maintain perfection of any lien or security interest against any
property of Borrowers securing the Obligations; or
(d) Other Actions Taken or Omitted. Any other action taken or omitted
to be taken with respect to the Obligations or the security and collateral
therefor, whether or not such action or omission prejudices Guarantor or
increases the likelihood that Guarantor will be required to pay
the Obligations pursuant to the terms hereof; it is the unambiguous
and unequivocal intention of Guarantor that Guarantor shall be obligated
to pay the Obligations when due, notwithstanding any occurrence,
circumstance, event, action, or omission whatsoever, whether contemplated or
uncontemplated, and whether or not particularly described herein, except for
the full and final payment and satisfaction of the Obligations.
7. Default. If Guarantor fails to pay Lease Companies in accordance
with S4 hereof or fails to perform any of its other covenants provided herein,
Guarantor shall be in default hereunder, and Lease Companies shall have the
right to declare all amounts guaranteed hereby to be due and payable as if
all the Obligations had reached maturity, in which case Guarantor shall promptly
pay to Lease Companies all such amounts.
8. Financial Statements. Guarantor covenants and agrees that so long
as any part of the Obligation remain outstanding, Guarantor shall furnish to
Lease Companies such financial statements as Lease Companies may request from
time to time.
9. Subordination. Guarantor hereby subordinates any and all
indebtedness Borrowers, or any one or more of them, now or hereafter
owes to Guarantor to the Obligations, and agrees with Lease Companies
that Guarantor shall not demand or accept any payment of principal or
interest from Borrowers, shall not claim any offset or other reduction
of Guarantor's Obligations hereunder because of any such indebtedness
and shall not take any action to obtain any of the collateral securing the
Obligations; provided, however, that, if Lease Companies so requests, any
indebtedness of Borrowers to Guarantor shall be collected, enforced and
received by Guarantor as trustee for Lease Companies and shall be paid
over to Lease Companies on account of the Obligations, but without reducing
or effecting in any manner the liability of Guarantor under the other
provisions of this Guaranty.
10. Miscellaneous.
(a) Governing Law. This Guaranty is a contract made under and shall
be construed in accordance with and governed by the laws of the State of
Minnesota.
(b) Further Assurances. Guarantor agrees to execute and deliver to
Lease Companies all such documents and to take all other action as may be
reasonably requested by Lease Companies to more fully vest in and assure
Lease Companies of all of the rights, powers, privileges, and remedies
herein intended to be granted to or conferred upon Lease Companies.
(c) Notices. Whenever Lease Companies shall choose or be required to
give any notice to Guarantor, such notice may be given personally or by
certified or registered mail, and any notice so sent shall be deemed to
have been given on the date received, if given personally, or on the date
such notice is deposited in the United States Mail, postage prepaid,
addressed to Guarantor at the address set forth below the Guarantor's
signature to this Guaranty, if sent by mail. The address for
notices may be changed by Guarantor only upon the actual receipt by
Lease Companies of a written designation of a new address of notice.
(d) Invalid Provisions. If any provision of this Guaranty is held to
be illegal, invalid, or unenforceable under present or future laws, such
provision shall be severable and the remaining provisions of this Guaranty
shall remain in full force and effect and shall nqt be affected by the
illegal, invalid, or unenforceabl'e provision or by its severance.
(e) Identity of Borrowers. The following list identifies the entities
or persons who, as Borrowers, are the parties whose debts are guaranteed in
this Guaranty:
SKYWAY ADVERTISING INC.
l2 ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
WITNESS THE EXECUTION HEREOF, this 28th day of November, 1995.
GUARANTOR:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Individually
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Address:___
SECURITY AGREEMENT
LEASE COMPANIES
THIS SECURITY AGREEMENT (the "Agreement") is made as of the date set
forth on the signature page hereof, by and between LEASE COMPANIES ("Lease
Companies"), with its principal place of business at ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and the undersigned debtor
("Debtor").
WHEREAS, Lease eompanies is extending credit to Debtor which debt or
debts may be evidenced by one or more promissory notes executed simultaneously
herewith and delivered by Debtor to Lease Companies (the "Note"); and
WHEREAS, Debtor has agreed to grant Lease Companies a security interest
in certain collateral owned by Debtor as more fully set forth herein.
NOW THEREFORE, for and in consideration of the premises, and the mutual
promises and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Debtor and Lease Companies hereby agree as follows:
I. DEFINITIONS.
1.1 Defined Terms. When used herein, the following terms shall have
the following meanings:
(a) "Collateral" shall mean all property and interests in property in
which a security interest is granted to Lease Companies by Debtor hereunder;
(b) "Financing Agreements" shall mean all agreements, instruments, and
documents executed and/or delivered to Lease Companies pursuant hereto or
evidencing or securing or executed in connectiqn with any of the Obligations,
including, without limitation, security agreements, notes, guarantees,
financing statements, and all other written matter whether heretofore,
now, or hereafter executed, together with all agreements and documents
referred to therein or contemplated thereby;
(c) "Obligations" shall mean all liabilities, obligations, and
indebtedness of any and every kind and nature (including, without
limitation, future advances made to or for the benefit of Debtor),
heretofore, now, or hereafter owing, arising, due or payable from Debtor
to Lease Companies, howsoever evidenced, created, incurred, acquired, or
owing, whether primary, secondary, direct, contingent, fixed or otherwise,
including obligations of performance, and whether arising under
this Agreement, the Note, or any one or more of the Financing Agreements
or by oral agreement or operation of law and whether evidenced by the Note,
other promissory notes, or by other evidences of indebtedness; and
(d) "UCC" shall mean Mn. Stat. S336.9-1O1 to 336.9-508.
1.2 Other Terms. All other terms contained in this Agreement, where
the context so indicates (unless otherwise specifically defined herein), shall
have the meaning provided in Minnesota Commerce Code to the extent the same
are used or defined therein.
II. SECURITY INTEREST.
2.1 Security Interest. To secure payment and performance of the
Obligations, Debtor hereby grants to Lease Companies a continuing security
interest in and to all of Debtor's now owed and hereafter existing or
acquired personal property including, without limitation:
(a) All inventory, equipment and accounts receivable now or hereafter
owned by Debtor;
(b) All present and future accounts, cash, money, deposit accounts,
policies of insurance (casualty, liability, life, business interruption,
etc), contract rights and lease agreements, general intangibles, chattel
paper, documents, instruments, notes receivable, cash and non-cash proceeds
and other rights, benefits, powers, privileges and remedies of Debtor
arising from or by virtue of, or from the voluntary or involuntary sale,
lease or other disposition of, or collections with respect to, or
insurance or bonding proceeds payable with respect to,;or claims
against any individual, firm, corporation, associations partnership,
joint venture, trust, governmental entity or any other entity (a "Person")
(and proceeds thereof) with respect to, all or any part of the property
heretofore described;
(c) All present and future security in favor of the Debtor for the
payment or performance by any Person of obligations owed to such Debtor
under or in connection with any of the property heretofore described and
goods that gave or will give rise to any of the property heretofore described
or are evidenced, identified, or represented therein or thereby; and
(d) All products, replacements, and proceeds of, and accessions to, any
of the foregoing property and interests in property, together with all of
Debtor's books and records relating to any of the foregoing property.
2.2 Financing Statements. Debtor will execute and deliver to Lease
Companies such financing statements or amendments thereof or supplements
thereto and such other instruments, or documents, and
pay all connected costs, as Lease Companies may from
time to time require in order to preserve,
protect, and maintain the security interests
hereby granted and the perfection thereof, as a first and prior
perfected security interest in each item of Collateral.
Debtor shall hold in trust for the benefit of Lease
Companies, and promptly deliver to Lease Companies,
all Collateral for which possession by Lease
Companies is necessary for perfection of Lease
Companies' security interest or advisable for the protection or
preservation of Lease Companies' first and prior perfected security
interest therein.
III. DEBTOR'S COVENANTS.
3.1 Covenants. Until performance, payment, and/or satisfaction in
full of the Obligations, Debtor covenants and agrees as follows:
(a) Maintenance and Inspection of Records. Debtor will at all times
keep accurate and complete records and books of account with respect to all of
Debtor's- business activities, in accordance with sound
accounting practices and generally accepted accounting procedures.
Such records and accounts shall be maintained at the principal offices
of Debtor. Lease Companies, or any person or persons designated by
it, shall have the right, from time to time, to call upon reasonable
prior notice at Debtor's place or places of business during business
during business hours, and, without hindrance or delay, to inspect,
audit, checks copy, and make extracts from Debtor's books and records;
(b) Financial Statements. Debtor shall deliver to Lease Companies
such financial and operating statements as Lease Companies may request
from time to time, and in such form as is reasonably acceptable to Lease
Companies;
(c) Insurance. Debtor shall keep the Collateral insured against loss
or damage by fire, theft, and such other risks, hazards, and contingencies,
with such companies, in such amounts and under policies in such form as are
customary in the industry and are acceptable to Lease Companies. Such
policies shall make all losses payable to Debtor and Lease Companies, as their
respective interests may appear and shall bear a standard non-contributory
first mortgage endorsement, as appropriate;
(d) Taxes. Debtor will file all tax returns and pay all taxes when
due., and will cause any liens for taxes to be promptly released apd, except
as to liens which the Debtor has previously notified Lease Companies in
writing, there are no other liens or encumbrances on the Collateral; and
(e) Location of Collateral. None of the Collateral located at
Debtor's chief executive office shall be moved to a location other than
one identified in Section 5.3 below nor will Debtor change the
location of its chief executive office without at least fifteen (15)
days prior written notice to Lease Companies and without Lease Companies
being granted an opportunity to file whatever financing statements or
other documents are necessary to maintain the perfection of its security
interests in the Collateral.
IV. DEFAULT; REMEDIES.
4.1 Default. A Default shall exist if any one or more of the
following occurs and is continuing:
(a) Debtor fails to make any payment of principal or interest on the
Obligation on or before the date such payment is due;
(b) Debtor or guarantor of the Obligations fails to perform or to
observe any covenant contained herein or in any one or more of the Financing
Agreements;
(c) Lease Companies reasonably believes that the prospect of payment
of any of the Obligations or of the performance of any covenants or,
agreements contained in this Agreement or in any of the Financing Agreements
is substantially impaired; or
(d) The sale, loss, theft, destruction, encumbrance, or transfer of
any Collateral in violation hereof or the occurrence of substantial damage to
any Collateral, unless such Collateral is promptly replaced with Collateral
of like quality or restored to its former condition, or unless insurance
proceeds payable with respect thereto are delivered to Lease Companies.
4.2 Remedies Upon Default. Lease Companies, upon the occurrence of a
Default shall have the following remedies, each cumulative of the other to the
extent permitted by law: Lease Companies may declare all Obligations secured
hereby immediately due and payable without presentment for payment,
demand for payment, notice of non-payment, protest, notice of protest or
of dishonor, notice of default, notice of intent to accelerate, notice of
acceleration, notice of intent to foreclose, or any other notice all
of which are hereby expressly waived, and Lease Companies may proceed
to enforce payment of the same and exercise any and all of the rights
and remedies provided under the UCC, by this
Security Agreement, by any one or more of the Financing Agreements,
at law or in equity, as well as any other additional rights and
remedies possessed by Lease Companies, including the right to sell the
Collateral, or any part thereof, at public or private sale, for cash,
upon credit, or for future delivery as Lease Companies shall deem
appropriate.
V. MISCELLANEOUS.
5.1 Applicable Law. This Agreement shall be construed in all
respects in accordance with, and be governed by, the laws and decisions of
the State of Minnesota.
5.2 Notices. Any notice, request, instruction, or other document
to be given hereunder by any party hereto to any other party shall be in
writing and delivered personally or sent by registered or certified mail,
postage prepaid, at the address of such other party appearing below such party's
signature to this Agreement, or at such other address for a party as shall be
specified by like notice, which change of address shall become effective
when actually received. Any notice which is delivered personally in the
manner provided herein shall be deemed to have been duly given to the
party to whom it is directed upon actual receipt by such party. Any
notice which is addressed and mailed in the manner herein
provided shall be conclusively presumed to have been duly given
to the party to which it is addressed upon being so placed in the mail.
5.3 Locations of Collateral and Debtor's Chief Executive Office.
The street address of each location where Collateral is located and the
street address of Debtor's chief executive officer are as follows:
SKYWAY ADVERTISING INC.
▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, this Agreement has been duly executed this 28th
day of November, 1995.
DEBTOR: SECURED PARTY:
SKYWAY ADVERTISING INC. LEASE COMPANIES
