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EXHIBIT 4.1
INTERIM LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made and entered into
effective the 26th day of March, 1999, by and between MARK SCHARMANN, an
individual ("Lender"), and CHICAGO MAP CORPORATION, an Illinois corporation
("Borrower").
RECITAL
Lender will make a loan to Borrower in the principal sum of $100,000
(the "Loan"). Borrower is applying all of the Loan proceeds for general
corporate purposes associated with the business operations of the Borrower. Such
Loan is being made in anticipation of the acquisition by Rexford, Inc., a
Delaware corporation, an entity in which the Lender is a controlling principal
("Rexford"), of all of the issued and outstanding common stock of the Borrower
pursuant to an Agreement and Plan of Reorganization (the "Acquisition
Agreement"). As an inducement to Lender to make such Loan, on completion of the
reorganization contemplated under the Acquisition Agreement, Borrower will to
issue to Lender a common stock purchase warrant to purchase up to 100,000 shares
of Borrower's common stock at an exercise price of $2.50 per share.
AGREEMENT
NOW, THEREFORE, in reliance upon the recitals set forth above and for
an in consideration of the mutual promises and covenants contained herein and
the mutual benefits to the parties to be derived from this Agreement, it is
hereby agreed as follows:
ARTICLE I
LOAN
1.1 Amount. Subject to the terms and conditions set forth herein, the
Lenders shall loan to Borrower the principal amount of $100,000, and Borrower
shall execute and deliver to Lender a promissory note in the form attached
hereto as Exhibit A and incorporated herein by this reference (the "Note"),
subject to all the terms, conditions, and covenants of this Agreement.
1.2 Interest. The Loan made pursuant to the terms of this Agreement
shall bear interest on the unpaid balance at one percent (1%) per month from the
date of the Note until payment in full. The principal and interest evidenced by
the Note, together with any extensions, modifications, renewals, or additional
loans; the performance of the covenants and agreements of Borrower contained
herein; and the obligations of Borrower under the terms of the accompanying
security agreement attached hereto, shall be hereinafter referred to
collectively as the "Obligation."
1.3 Security Agreement. As security for the Obligation, including any
modifications, extensions, or renewals thereof, Borrower will (i) execute the
Security Agreement attached hereto as Exhibit B and incorporated herein by this
reference (the "Security Agreement"), granting Lender a security interest in all
the accounts receivable of the Borrower, and (ii) deliver to the escrow agent
(in accordance with Section 1.6) a certificate representing 250,000 shares of
Rexford's common stock (the "Collateral Shares"), which Collateral Shares
represent a portion
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of the 10,500,000 shares of Rexford's common stock to be issued to the
Borrower's Stockholders under the Acquisition Agreement, as more particularly
set forth therein.
1.4 Payment. The entire amount of the funds loaned under the Note,
including principal and interest, is due and payable within three (3) months
from the date hereof or immediately in the event of default by Borrower as
hereinafter provided.
1.5 Warrant. As further consideration for the Loan, on completion of
the transactions contemplated under the Acquisition Agreement (including giving
effect to the 70-for-1 reverse split contemplated herein), Borrower shall issue
to Lender a common stock purchase warrant (the "Warrant") to purchase up to
100,000 shares of the Borrower's common stock, at an exercise price of $2.50 per
share, all in accordance with the terms and conditions set forth in the form of
Warrant, attached hereto as Exhibit C and incorporated herein by this reference.
1.6 Escrow of Collateral Shares. As additional security for the
Obligation, Borrower will execute the Escrow Agreement attached hereto as
Exhibit D and incorporated herein by this reference (the "Escrow Agreement"),
that provides for the escrow of the Collateral Shares until the Loan is paid in
full or an event of default by Borrower occurs as hereinafter provided.
ARTICLE II
CONDITIONS OF LENDER'S OBLIGATIONS
2.1 Satisfaction of Conditions. Borrower shall have performed and
satisfied in all material respects all obligations, conditions, and covenants
required by this Agreement to be performed and satisfied by it at or before the
execution of this Agreement.
2.2 Certain Documents. The obligation of Lender to make its Obligation
is subject to the condition that all of the following documents shall have been
received by Lender:
(a) Resolutions of the Borrower's board of directors approving
and authorizing the execution, delivery, and performance of this
Agreement and all other Obligation documents executed by them,
certified as of the date of this Agreement by the Borrower's corporate
secretary;
(b) The Note in the form of Exhibit A attached hereto, drawn
to the order of Lender, with appropriate insertions, executed as
appropriate by Borrower;
(c) The Security Agreement in the form of Exhibit B attached
hereto, with appropriate insertions, executed as appropriate by
Borrower;
(d) Form UCC-1, executed as appropriate by Borrower; and
(e) This Agreement executed by Borrower and Lender.
2.3 Other Documents. Following completion of the Acquisition Agreement,
Borrower agrees that the following documents will be delivered by Borrower to
Lender:
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(a) The Warrant in the form of Exhibit C attached hereto, with
appropriate insertions, executed as appropriate by Borrower; and
(b) The Collateral Shares with a stock power executed in blank
with signature medallion guaranteed, accompanied by the Escrow
Agreement in the form of Exhibit D attached hereto, with appropriate
insertions, executed by all the parties thereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BORROWER
In order to obtain Lender's reliance and agreement to enter into this
Agreement and the transactions contemplated hereby, Borrower makes the following
representations and warranties:
3.1 Corporate Standing. Borrower is a corporation duly organized,
validly existing, and in good standing under the laws of the state of Illinois
and has the corporate power and authority to own and operate its properties and
to carry on its business as now conducted. Neither the ownership of its
properties nor the nature of its business requires Borrower to be qualified to
do business in any jurisdiction other than the state of Illinois.
3.2 No Conflicting Agreements. The execution and delivery of this
Agreement and the consummation of the transactions provided for herein will not
violate or conflict with or result in the breach of any provision or covenant or
constitute a default or an event which with notice or lapse of time or both
would constitute a default under, or accelerate the performance required by, or
result in the termination of any agreement, stipulation, order, judgment, or
decree to which Borrower is a party or is subject or which binds any of the
properties or assets of Borrower.
3.3 Litigation. Borrower is not aware of any claim or pending
litigation that would prevent or encumber its power to execute, deliver, or
consummate this Agreement and the transactions contemplated hereby.
3.4 Binding Obligation. This Agreement, the Note, the Security
Agreement and the documents related thereto have been duly executed and
delivered by Borrower and constitute legal, valid, and binding obligations of
Borrower and are enforceable against them in accordance with their terms, except
as the enforceability may be affected by bankruptcy, insolvency, or similar laws
affecting the enforcement of creditor's rights generally and to the extent the
availability of certain remedies may be limited by certain equitable principles
of generally applicability.
3.5 Financial Condition. The financial statements of Borrower provided
to Lender have been prepared in accordance with generally accepted accounting
principles, consistently applied, and are complete, correct, and accurately
present the financial position of Borrower as of December 31, 1998.
3.6 No Material Changes. There have been no material adverse changes in
the financial condition of Borrower since the date of the latest financial
statements.
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3.7 No Existing Default. Borrower is not in default nor has any event
occurred that with notice or the passage of time or both would constitute a
default under any agreement, indenture, or contract relating to any material
obligation for borrowed money or any form of credit agreement whatsoever,
including, but without limitation, any installment purchase agreements.
ARTICLE IV
NEGATIVE COVENANTS OF BORROWER
Borrower agrees that it will not, prior to the satisfaction of all its
obligations under the terms of this Agreement, the Note, the Security Agreement,
and the related documents, do any of the following:
4.1 Recapitalization. Borrower will not issue any equity or debt
securities or any instruments convertible into equity securities or amend the
terms and conditions of any of the foregoing, not shall it split or reclassify
or change the rights of any of its authorized stock or redeem, purchase, or
otherwise acquire any shares of its equity stock.
4.2 Satisfaction of Existing Obligations. Other than in the ordinary
course of business as now conducted, Borrower shall not discharge or satisfy any
lien, mortgage, pledge, charge, security, or other encumbrance on any of the
material assets or properties, nor will Borrower cause to be created or suffer
to exist any additional lien, mortgage, pledge, charge, security, or other
encumbrance on any of the material assets or properties.
4.3 Amendment of Contracts. Other than in the ordinary course of
business as now conducted, Borrower shall not engage in any transaction that
would create or result in any additional indebtedness or pay any obligation or
liability or enter into, terminate, or amend any agreement or transfer or grant
any rights under any lease, license, or other agreement or in any manner dispose
of or acquire any material amount of assets.
4.4 Continuation of Business. Borrower shall use its best efforts
consistent with prudent business practices to preserve and maintain the business
and business organization of borrower intact; to preserve its goodwill; to pay
its obligations as they mature; and to retain Borrower's relationship with its
customers.
4.5 Regulatory Compliance. Borrower shall not violate in any material
respect any law, rule, regulation, order, or ordinance applicable to the conduct
of the business of Borrower or relinquish or terminate any rights,
qualifications, license, or permits that would materially affect the financial
condition or the business of Borrower.
4.6 Transfer of Sale of Technology. Borrower shall not sell or in any
other manner transfer any asset, license, permit, patent, royalty, or other
governmental authorization of Borrower or cause or permit Borrower to purchase
or in any other manner acquire for consideration any material asset, license,
permit, patent, royalty, or other governmental authorization.
4.7 Sale of Assets. Other than those negotiations or agreements
associated with the consummation of the Acquisition Agreement between Borrower
and Rexford, Borrower shall not
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enter into any negotiation or agreement or entertain any proposals relating to
the sale of all or substantially all the assets or stock of Borrower or merge,
consolidate, liquidate, or dissolve Borrower.
4.8 Guarantor or Surety. Borrower shall not guarantee or act as surety
for any indebtedness of any other entity or person.
ARTICLE V
AFFIRMATIVE COVENANTS OF BORROWER
5.1 Use of Loan Proceeds. Borrower shall utilize 100% of the proceeds
from the loan contemplated hereby for _____________________ and the direct costs
associated uses.
5.2 Financial Records. Borrower shall maintain adequate books,
accounts, and records in accordance with the practices of prudent businessmen
and in accordance with generally accepted accounting principles, consistently
applied, and shall make all such records available for inspection and
duplication, by Lender or its agents at any time during reasonable business
hours.
5.3 Prior Encumbrances. Borrower will timely pay and otherwise perform
each and every term, covenant, or condition required to be performed by it
pursuant to any priority lien or encumbrance on any property securing repayment
of the Obligation.
5.4 Taxes. Borrower shall duly pay and discharge all taxes,
assessments, and charges owed by or levied against Borrower or any of the
properties or assets belonging to Borrower.
5.5 Insurance. Borrower shall insure and keep insured at all times all
of their property of an insurable nature, with insurers who are financially
sound and responsible, against loss or damage from fire and other risks,
casualties, or contingencies, and shall carry such public liability as is
reasonably prudent in the conducting of Borrower's business.
5.6 Compliance With Laws. Borrower shall take whatever actions are
necessary to comply with all statutes and regulations governing the activities
and operations of Borrower and maintain its corporate existence and right to
carry on business in each state or other jurisdiction in which Borrower now
conducts business.
5.7 Additional Documents. Borrower shall promptly execute and deliver
or cause to be executed and delivered, any other instruments or documents which
Lender may reasonably request or which may be required in order to consummate
the transactions contemplated by this Agreement.
5.8 Legal Proceedings. Borrower is not now a party to any legal
proceedings and shall promptly notify Lender of any legal proceedings instituted
against Borrower.
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ARTICLE VI
DEFAULT
6.1 Events of Default. Upon the occurrence and during the continuance
of any one or more of the events hereinafter enumerated, Lender may forthwith or
at any time thereafter during the continuance of any such event, by notice in
writing to Borrower, declare the unpaid balance of the principal and interest
then accrued on the Note to be immediately due and payable, and the principal
and interest shall become and shall be immediately due and payable without
presentation, demand, protest, notice of protest, or other notice of dishonor,
all of which are hereby expressly waived by Borrower, such events being as
follows:
(a) Default in the payment of the principal and interest of
the Note or any portion thereof when the same shall become due and
payable, whether at maturity as therein expressed, by acceleration, or
otherwise, unless cured within 10 days after notice thereof by the
holder of such Note to Borrower;
(b) The creditors under any priority secured indebtedness of
Borrower shall declare the amounts due thereunder to be due and payable
following default;
(c) Default in the due observance or performance of any other
covenant or obligation contained in this Agreement, in the Security
Agreement, or the Acquisition Agreement unless observed or performed
within 10 days after notice thereof to Borrower by Lender; provided, if
compliance is not possible within 10 days, default shall occur upon
failure within 10 days to take steps that will produce compliance as
soon as is reasonably practicable;
(d) Any representation or warranty herein or in the
Acquisition Agreement made by Borrower proves to have been untrue in
any material respect as of the date as of which the facts therein set
forth were stated or certified, and corrective measures, satisfactory
to Lender with respect thereto shall not have been taken within 10 days
after notice thereof to Lender; provided, if compliance is not possible
within 10 days, default shall occur upon failure within 10 days to take
steps that will produce compliance as soon as is reasonably
practicable;
(e) Borrower shall file a voluntary petition in bankruptcy or
a voluntary petition seeking reorganization, or shall file an answer
admitting the jurisdiction of the court and any material allegations of
an involuntary petition filed pursuant to any act of Congress relating
to bankruptcy or to any act purporting to be amendatory thereof, or
shall be adjudicated bankrupt, or shall make an assignment for the
benefit of creditors, or shall apply for or consent to the appointment
of any receiver or trustee for Borrower, or of all or any substantial
portion of its property, or Borrower shall make an assignment to an
agent authorized to liquidate any substantial part of its assets;
(f) An order shall be entered pursuant to any act of Congress
relating to bankruptcy or to any act purporting to be amendatory
thereof approving an involuntary petition seeking reorganization of
Borrower, or an order of any court shall be entered appointing any
receiver or trustee of or for Borrower, or any receiver or trustee of
all or
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any substantial portion of the property of Borrower, or a writ or
warrant of attachment or any similar process shall be issued by any
court against all or any substantial portion of the property of
Borrower, and such order approving a petition seeking reorganization or
appointing a receiver or trustee is not vacated or stayed, or such
writ, warrant of attachment, or similar process is not released or
bonded within 60 days after its entry or levy, or
(g) The rendering against the Borrower of final judgment for
the payment of money in excess of $25,000 and failure of the Borrower
to appeal therefrom (or from the order, decree, or process pursuant to
which such judgment was granted, passed, entered, or affirmed) and
obtain a stay of execution thereof within the period prescribed by law
for appeal, or to have such judgment discharged and satisfied within 60
days after the expiration of such period or of the period of any such
stay, whichever shall later occur.
6.2 Procedure on Default. Upon the occurrence of an event of default,
and at any time thereafter, Lender may elect to declare the entire Obligation
hereby secured immediately due and payable:
(a) In the event of default in the payment of said Obligation
when due or declared due, Lender, shall have all the rights and
remedies of a secured party and shall be entitled to avail itself of
all such other rights and remedies that may now or hereafter exist at
law or in equity for the collection of the Obligation and the
enforcement of the covenants herein and the foreclosure of the security
interest created hereby and resort to any remedy provided hereunder or
provided by the Illinois Uniform Commercial Code, or by any other law
of the state of Illinois, which shall not prevent the concurrent or
subsequent employment of any other appropriate remedy or remedies; and
(b) The requirement of reasonable notice to Borrower of the
time and place of any public sale of the security or of the time after
which any private sale, or any other intended disposition thereof is to
be made, shall be met if such notice is mailed, postage prepaid, to
Borrower at the address of such party designated below, at least 30
days before the date of any public or private sale or other disposition
is to be made.
6.3 Defaults Upon Prior Indebtedness. Upon the default by Borrower of
any term, covenant, or condition required to be performed by it on any priority
secured indebtedness or the receipt by Borrower from any such priority secured
creditor of notice of any default under such indebtedness, whether or not
repayment of the indebtedness is accelerated, Borrower shall promptly advise
Lender in writing of the nature and amount of default and of the action, if any,
threatened by such priority secured creditor. Notwithstanding the Borrower's
obligation to cure any and all such defaults, Lender may, but shall not be
obligated to do so, in the name, place, and stead of Borrower and, in the case
of such curative efforts by Lender, succeed to all of the rights, remedies and
security of such priority creditor.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 Assignment of Agreement. Except as expressly provided, neither the
rights nor the obligations of the parties to this agreement may be assigned or
delegated by either party in whole or in part without the prior written consent
of the other party.
7.2 Governing Law. Unless otherwise provided herein, this Agreement
shall be governed by and construed and enforced in accordance with the laws of
the state of Illinois.
7.3 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if personally delivered to it or, if sent
by facsimile transmission or other electronic communication confirmed by
registered or certified mail, postage prepaid, or if sent by prepaid telegram
addressed as follows:
If to Lender, to: MARK A. SCHARMANN If to Borrower, to: CHICAGO MAP CORPORATION
1661 Lakeview Circle Attn: Mike Barnett
Ogden, UT 84403 15419 127th Street
Fax No.: 801-399-3688 Lemont, IL 60439
Fax No.: 708-257-9678
with copies to: TAYLOR AND ASSOCIATES with copies to: RIECK & CROTTY
Attn: Elliott N. Taylor, Esq. Attn: Ron Duplack, Esq.
3090 East 3300 South, Suite 400
Salt Lake City, UT 84109
Fax No.: 801-463-6085 Fax No.: 312-726-0647
or such other addresses as shall be furnished in writing by any party in the
manner for giving notices hereunder, and any such notice or communication shall
be deemed to have been given as of the date so delivered or sent by facsimile
transmission or other electronic communication, three days after the date so
mailed, or one day after the date so telegraphed or sent by overnight delivery.
7.4 Title and Captions. Section titles or captions to this Agreement
are for convenience and reference only and shall not be deemed part of this
Agreement and shall not be interpreted to define, limit, augment extend, or
describe the scope, content, or intent of any part of parts of this Agreement.
7.5 Pronouns and Plurals. Whenever the context may require, all
pronouns used herein shall include the corresponding masculine, feminine, or
neuter forms and the singular form of pronouns and verbs shall include the
plural and vice versa. Each of the foregoing genders and plurals is understood
to refer to a corporation, partnership, or other legal entity when the context
so requires.
7.6 Further Action. The parties shall execute and deliver all documents
or instruments, provide all information, and take or forebear from all such
actions as may be necessary or appropriate to achieve the purpose of this
Agreement.
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7.7 Binding Effect Upon Successors. This Agreement shall be binding
upon, and insure to the benefit of, the parties and their respective heirs,
executors, administrators, successors, legal representatives, and assigns;
provided, that this provision shall not be construed as permitting assignment,
substitution, delegation, or other transfer of rights or obligations, except
strictly in accordance with the provisions of the other sections of this
Agreement.
7.8 Creditors. Unless expressly provided in this Agreement, none of the
provisions of this Agreement shall be for the benefit of, or enforceable by, any
creditors of any party hereto.
7.9 Waiver. No failure by any party to insist upon the strict
performance of any covenant, duty, promise, or condition of this Agreement or to
exercise any right or remedy consequent upon a breach thereof shall constitute a
waiver of any such breach or any other covenant, duty, promise, or condition.
Any party may, by notice delivered in the manner provided in this Agreement, but
shall be under no obligation to, waive any of its rights or any conditions to
its obligations hereunder, or any duty, obligation, or covenant of any other
party. No waiver shall affect or alter the remainder of this Agreement, but each
and every other covenant, duty, promise, and condition hereof shall continue in
force and effect with respect to any other then existing or subsequently
occurring breach.
7.10 Severability. In the event that any condition, covenant, or other
provision herein contained is held to be invalid or void by any court of
competent jurisdiction, the same shall be deemed severable from the remainder of
this Agreement and shall in no way affect any other covenant or condition herein
contained. If such condition, covenant, or other provision shall be deemed
invalid due to its scope or breadth, such provision shall be deemed valid to the
extent of the scope or breadth permitted by law.
7.11 Exhibits. All exhibits annexed to this Agreement and any documents
to be delivered herewith are expressly made a part of this Agreement as fully as
though completely set forth in it. All references to this Agreement, either in
the Agreement itself or in any of such writings, shall be deemed to refer to and
include this Agreement itself or in any of such exhibits or writings. Any breach
of or default under any provision of any of such writing shall, for all
purposes, constitute a breach or default under this Agreement and all other such
writings.
7.12 Attorneys' Fees. Should either party take any legal action to
enforce any of the terms or provisions of this Agreement, or if any costs are
incurred by reason of breach or default in any of the covenants,
representations, warranties, terms, or conditions of this Agreement, the
non-defaulting party shall be entitled to recover any costs, including
attorneys' fees incurred in enforcing the obligations of the other party under
the terms of this Agreement or in collecting any judgment that may be entered.
7.13 Time of Essence. Time is of the essence in the performance of the
duties, covenants, or obligations of the parties under the terms of this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
LENDER: BORROWER:
MARK A. SCHARMANN, CHICAGO MAP CORPORATION,
an Individual an Illinois corporation
/s/ Mark A. Scharmann By: /s/ Steven J. Peskaitis
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Mark A. Scharmann Its Duly Authorized Officer
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