EXHIBIT 10.2
BRIDGE FINANCING AGREEMENT
This agreement is made this day of November, 1995, by and
between Norman Winer
("Lender" or "Holder"), and Skyway Advertising, Inc. ("Skyway" or
"Borrower").
Whereas, Lender wishes to provide and Borrower wishes to secure
certain short-term
financing in anticipation of a proposed Initial Public Offering of the
securities of Borrower, and
Whereas, both of the parties hereto have acknowledged the receipt of
good and valuable
consideration for the covenants, promises, performances and obligations
undertaken, or to be
undertaken in fulfillment of this Agreement,
NOW, THEREFORE, IT IS HEREBY AGREED:
1. Closing on the financing anticipated hereby shall take place at the
offices of
Tuschner & Company, 120 South 6th Street, Suite 800, Minneapolis,
Minnesota at a time to be
set by the parties on November , 1995.
2. Lender shall deliver to Borrower the sum of $150,000.
3. Borrower shall deliver to Lender the following documents:
a. An executed Promissory Note in the form attached hereto as
Exhibit "A";
b. A Security Agreement in a form satisfactory to Lender and
Lender's counsel;
c. A UCC-1 Financing Statement with respect to the security
interest granted
pursuant to said Security Agreement;
d. A Warrant as set forth in this Agreement;
e. A n opinion of counsel that th e transactions described in this
Agreement and related docume nts have been authorized by all
necessary corporate actio n on the part of the Borrower from
counsel that represents that it is knowledgeable and experienced in the
area of securities law, and in which said counsel also indicates that he has
examined the books and records of Skyway to the extent he has deemed
necessary, and is aware of no reason why the Lender would not be able to
register the sale of its shares under Minnesota and Federal Securities
Laws;
f. An agreement from Tuschner & Company, Inc. and any other
party that has a right to a commission as a result of the loan
described herein, waiving any right to receive such commission
until the loan has been repaid in full, in a form satisfactory to
Lender and his Counsel;
g. A Personal Guaranty executed by Robert Blank and his spouse
personally
guaranteeing repayment of the loan described herein;
h. Subordination/Standby Agreem ents executed by all related
party creditors of Borrower by which they subordinate their
indebtedness to the debt owed to Lender and agree that they will
accept no payments on such debt until Lender has been repaid in full,
together with Borrower's agreement to make no payments on any such
debt; and
i. Evidence satisfactory to Lender and Lender's counsel that all
holders of the preferred shares of Borrower have waived their right
to put such shares for redemption until the loan described herein
has been repaid in full to Lender.
4. This Bridge Financing Agreement is made in anticipation of an
Initial Public
Offering of the securities of Skyway. Part of the consideration herefor is a
promise by Skyway
to file with the Securities and Exchange Commission a Registration
Statement no later than
January 31, 1996.
5. Borrower shall issue and deliver to Lender Warrants for the
purchase of 50,000
shares of the Common Stock of Skyway, exercisable at a price of one-half
of the price at
which similar shares are offered to the public in the above-referenced
Initial Public Offering.
6. Lender shall be entitled to demand registration with the Securities
and Exchange
Commission of the securities acquired by Lender pursuant to the warrant
described in paragraph
5 hereof. Said right to demand registration shall be exercisable only once,
at a date to be
determined solely by Lender.
7. Borrower shall direct Tuschner & Company, the anticipated
underwriter of the
above-referenced Initial Public Offering; or any substitute underwriter
hereafter named; to pay
the Promissory Note described in paragraph 3, above, directly out of the
proceeds of said Initial
Public Offering, first, and before any other creditors of Borrower
(including all related party
creditors and entities or person owed commissions as a result of the loan
anticipated hereby) at
closing thereon.
Dated: November , 1995
Skyway Advertising, Inc.
By:
Norman Winer Robert H. Blank
Its:
EXHIBIT "A" BRIDGE FINANCING AGREEMENT
This agreement is made this 1st day of November, 1995, by and
between Norman Winer ("Lender" or "Holder"), and Skyway Advertising,
Inc. ("Skyway" or "Borrower").
Whereas, Lender wishes to provide and Borrower wishes to secure
certain short-term financing in anticipation of a proposed Initial Public
Offering of the securities of Borrower, and
Whereas, both of the parties hereto have acknowledged the receipt
of good and valuable consideration for the covenants, promises,
performances and obligations undertaken, or to be undertaken in
fulfillment of this Agreement,
NOW, THEREFORE, IT IS HEREBY AGREED:
1. Closing on the financing anticipated hereby shall take place
at the offices of Tuschner & Company, 120 South 6th Street, Suite 800,
Minneapolis, Minnesota at a time to be set by the parties on Friday,
November 3, 1995.
2. Lender shall deliver to Borrower the sum of $150,000.
3. Borrower shall deliver to Lender an executed Promissory
Note in the form attached hereto as Exhibit "A".
4. This Bridge Financing Agreement is made in anticipation
of an Initial Public Offering of the securities of Skyway. Part of the
consideration herefor is a promise by Skyway to file with the Securities
and Exchange Commission a Registration Statement no later than
December 31, 1995.
5. Borrower shall issue and deliver to Lender Warrants for the
purchase of 50,000 shares of the Common Stock of Skyway, exercisable at
a price of one-half of the price similar shares are offered to the public
in the above-referenced Initial Public Offering.
6. Lender shall be entitled to demand registration with the
Securities and Exchange Commission of the securities acquired by Lender
pursuant to the warrant described in paragraph 5 hereof. Said right to
demand registration shall be exercisable only once, at a date to be
determined solely by Lender.
7. Borrower shall authorize Tuschner & Company, the
anticipated underwriter of the above-referenced Initial Public Offering; or
any substitute underwriter hereafter named; to pay the Promissory Note
described in paragraph 3, above, directly out of the proceeds of said Initial
Public Offering, first, and before any other creditors of Borrower
(including all related party creditors and entities or person owed
commissions as a result of the loan anticipated hereby) at closing thereon.
8. Borrower shall provide to Lender at closing written waivers
of the right to "put" their shares to Skyway, until the entire indebtedness to
Lender is satisfied, executed by each of the holders of Series A and/or
Series B Convertible Preferred Stock of Skyway.
9. Borrower shall provide to Lender at closing a written
Guarantee for repayment of the entire indebtedness to Lender executed by
Robert H. Blank and Ann E. Tatlock.
10. Borrower shall provide to Lender at closing an Opinion of
counsel setting forth counsel's opinion of the validity of the transaction
anticipated hereby and the basis for that opinion.
Dated: November , 1995
Skyway Advertising, Inc.
By:
Norman Winer Robert H. Blank
Its:
PROMISSORY NOTE
FOR VALUABLE CONSIDERATION RECEIVED, Skyway
Advertising, Inc., ("Skyway", or "Maker"), in conjunction with that
certain Bridge Financing Agreement, (which shall be incorporated herein
by reference) hereby promises to pay to Norman Winer ("Holder"), his
successors and assigns, at Holder's office at 3050 Multifoods Tower, 33
South 6th Street, Minneapolis, Minnesota, or at any other place designated
by Holder, the principal sum of $150,000, together with interest
(calculated on the basis of actual days elapsed and a 360 day year) on the
unpaid principal hereof, from the date of this Note until this Note is fully
paid, in the following manner and upon the following terms and
conditions:
1. Payment. This Note shall be payable in full at such time as the
Initial Public Offering of securities of Skyway closes and proceeds thereof
are delivered to Skyway, but in no event later than one hundred twenty
(120) days from the date of this Note, or at such other or different time as
the parties hereto may hereafter agree in writing.
2. Security. The loan evidenced hereby shall be secured by a
lien against all of the assets of Skyway to the full extent of principal and
interest accrued at any time hereunder. Said lien and the Security
Agreementcreating it shall be given priority over all claims of related
creditors of Skyway
3. Prepayment. This Note may be prepaid in whole or in part at any
time.
4. Interest. Interest shall accrue on this note at the rate of ten
per cent (10%).
5. Governing Law. This Note shall be construed and interpreted
in accordance with the laws of the State of Minnesota.
6. Binding Effect. Except as herein otherwise provided to the
contrary, this Note shall be binding upon, and shall inure to the benefit of,
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
Maker waives presentment, dishonor, protest, demand, diligence,
notice of protest, notice of demand, notice of dishonor, notice of
nonpayment, and any other notice of any kind otherwise required by law
in connection with the delivery, acceptance, performance, default,
enforcement or collection of this Note and expressly agrees that this Note,
or any payment hereunder, may be extended or subordinated (by
forbearance of otherwise) at any time, without in any way affecting the
liability of Maker.
Maker agrees to pay on demand all costs of collecting or enforcing
payment under this Note, including attorneys' fees and legal expenses,
whether suit be brought or not, and whether through courts of original
jurisdiction, courts of appellate jurisdiction, or bankruptcy courts, or
through other legal proceedings.
This Note may not be amended or modified, nor shall waiver of
any provision hereof be effective, except only by an instrument in writing
signed by the party against whom enforcement of any amendment,
modification, or waiver is sought.
IN WITNESS WHEREOF, this Note has been executed as of the
date set forth below.
Date: November , 1995
Skyway Advertising, Inc.
By:
Robert H. Blank
SECURITY AGREEMENT
This Security Agreement ("Agreement") is made this date by and between
Skyway Advertising, Inc., a Minnesota corporation, ("Debtor") and
Norman Winer ("Secured Party").
Section 1. Grant of Security Interest. Debtor, in consideration of the
indebtedness described in this Agreement, hereby grants, conveys, and
assigns to Secured Party for security all of Debtor's existing and future
right, title and interest in, to and under the property listed in Section 2 of
this Agreement. This security interest is granted to the Secured Party to
(a) secure the payment of the indebtedness evidenced by Debtor's note
payable to Secured Party dated November , 1995 ("Note") in the
principal sum of $150,000 with interest thereon, and all renewals,
extensions, and modifications of the Note; (b) the payment, performance
and observance of all obligations, covenants and agreements to be paid,
performed or observed by Debtor under that certain Bridge Financing
Agreement of even date, herewith, between Secured Party and the Debtor
("Financing Agreement"); (c) the payment of all other sums, with interest
thereon, advanced under the terms of this Agreement; and (d) the
performance of the agreements and warranties of Debtor contained in the
Note, this Agreement, the Financing Agreement, or incorporated in either
Agreement by reference .
Section 2. Property. The property subject to the security interest (the
Collateral) is as follows:
2.1 Equipment. All equipment of the Debtor, including office
equipment, signage and other equipment used in the business of Debtor.
2.2 Accounts Receivable and Other Intangibles. All of the Debtor's
accounts, chattel paper, contract rights, commissions, warehouse receipts,
bills of lading, delivery orders, drafts, acceptances, notes, securities and
other instruments; documents; general intangibles and all other forms of
receivables, and all guaranties and securities therefor.
2.3 Inventory and Other Tangible Personal Property. All of the
Debtor's inventory, including all goods, merchandise, materials, raw
materials, work in progress, finished goods, now owned or hereinafter
acquired and held for sale or lease or furnished or to be furnished under
contracts or service agreements or to be used or consumed in the Debtor's
business and all other tangible personal property of Debtor.
2.4 After-Acquired Property. All property of the types described in
Sections 2.1 and 2.2, or similar thereto, that at any time hereafter may be
acquired by Debtor, including but not limited to all accessions, parts,
additions, and replacements.
2.5 Proceeds. All proceeds of the sale or other disposition of any of
the Collateral described or referred to in Sections 2.1-2.3. Sale or
disposition of Collateral is prohibited.
Section 3. Covenants of Debtor. The Debtor agrees and covenants as
follows:
3.1 Payment of Principal and Interest. The Debtor shall promptly pay
when due the principal of and interest on the indebtedness evidenced by
the Note, any other charges provided in the Note, and all other sums
secured by this Agreement and/or the Financing Agreement.
3.2 Corporate Existence. The Debtor is a corporation duly organized
and existing under the laws of the state of Minnesota and is duly qualified
in every other state in which it is doing business.
3.3 Corporate Authority. The execution, delivery, and performance of
this Agreement, the Financing Agreement, and the execution, delivery,
and payment of the Note are within Debtor's corporate powers, have been
duly authorized, and are not in contravention of law or the terms of the
Debtor's articles of incorporation and bylaws, or of any indenture,
agreement, or undertaking to which the Debtor is a party or by which it is
bound.
Section 4. Removal of Collateral Prohibited. The Debtor shall not
remove the Collateral from its premises without the written consent of the
Secured Party, except as necessary for the normal operation of Debtor's
business.
Section 5. Perfection of Security Interest. The Debtor agrees to
execute and file financing statements, and do whatever may be necessary
under the applicable Uniform Commercial Code in the state where the
Collateral is located, to perfect and continue the Secured Party's interest in
the Collateral, all at the Debtor's expense.
Section 6. Taxes and Assessments. The Debtor will pay or cause to
be paid promptly when due all taxes and assessments on the Collateral,
this Agreement, the Sales/Loan Agreement, and the Note. The Debtor
may, however, withhold payment of any tax assessment or claim if a good
faith dispute exists as to the obligation to pay.
Section 7. Insurance. The Debtor shall have and maintain, or cause to
be maintained, insurance at all times with respect to all Collateral except
accounts receivable, against such risks as the Secured Party may
reasonably require, in such form, for such periods, and written by such
companies as may be satisfactory to the Secured Party. All policies of
insurance shall have endorsed a loss payable clause acceptable to the
Secured Party and/or such other endorsements as the Secured Party may
from time to time request, and the Debtor will promptly provide the
Secured Party with the original policies or certificates of such insurance.
The Debtor shall promptly notify the Secured Party of any loss or damage
that may occur to the Collateral. The Secured Party is hereby authorized
to make proof of loss if it is not made promptly by the Debtor. All
proceeds of any insurance on the Collateral shall be held by the Secured
Party as a part of the Collateral. Such proceeds shall be paid out from
time to time upon order of the Debtor for the purpose of paying the
reasonable cost of repairing or restoring the property damaged. Any
proceeds that have not been so paid out within 120 days following their
receipt by the Secured Party shall be applied to the prepayment of
principal on the Note. In the event of failure to provide insurance as
herein provided, the Secured Party may, at the Secured Party's option,
provide such insurance at the Debtor's expense.
Section 8. Application of Payments. Unless applicable law provides
otherwise, all payments received by the Secured Party from the Debtor
under the Note, this Agreement, and/or the Financing Agreement shall be
applied by the Secured Party in the following order of priority: (i) interest
payable on the Note in the manner provided therein; (ii) principal of the
Note in the manner provided therein; and (iii) any other sums secured by
this Agreement and/or the Financing Agreement in such order as the
Secured Party, at the Secured Party's option, may determine.
Section 9. Protection of Secured Party's Security. If the Debtor fails
to perform the covenants and agreements contained or incorporated in this
Agreement and/or the Financing Agreement, or if any action or proceeding
is commenced which affects the Collateral or title thereto or the interest of
the Secured Party therein, including, but not limited to eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then the Secured Party, at the Secured Party's
option, may make such appearance, disburse such sums, and take such
action as the Secured Party deems necessary, in its sole discretion, to
protect the Secured Party's interest, including but not limited to (i)
disbursement of attorneys' fees, (ii) entry upon the Debtor's property to
make repairs to the Collateral, and (iii) procurement of satisfactory
insurance. Any amounts disbursed by Secured Party pursuant to this
Section, with interest thereon, shall become additional indebtedness of the
Debtor secured by this Agreement. Unless the Debtor and the Secured
Party agree to other terms of payment, such amounts shall be immediately
due and payable and shall bear interest from the date of disbursement at
the default rate stated in the Note unless collection from the Debtor of
interest at such rate would be contrary to applicable law, in which event
such amounts shall bear interest at the highest rate which may be collected
from the Debtor under applicable law. Nothing contained in this Section
shall require the Secured Party to incur any expense or take any action.
Section 10. Inspection. The Secured Party may make or cause to be
made reasonable entries upon and inspections of the Debtor's premises to
inspect the Collateral.
Section 11. Debtor and Lien Not Released. From time to time, the
Secured Party may, at the Secured Party's option, without giving notice to
or obtaining the consent of the Debtor, the Debtor's successors or assigns
or of any other lienholder or guarantors, without liability on the Secured
Party's part, and notwithstanding the Debtor's breach of any covenant or
agreement of the Debtor in this Agreement and/or the Financing
Agreement, extend the time for payment of said indebtedness or any part
thereof, reduce the payments thereon, release anyone liable on any of said
indebtedness, accept a renewal note or notes therefor, modify the terms
and the time of payment of said indebtedness, release from the lien of this
Agreement any part of the Collateral, take or release other or additional
security, reconvey any part of the Collateral, consent to any map or plan of
the Collateral, consent to the granting of any easement, join in any
extension or subordination agreement, and agree in writing with the
Debtor to modify the rate of interest or period of amortization of the Note
or change the amount of any installments payable thereunder. Any actions
taken by the Secured Party pursuant to the terms of this Section shall not
affect the obligation of the Debtor or the Debtor's successors or assigns to
pay the sums secured by this Agreement and/or the Financing Agreement
and to observe the covenants of the Debtor contained herein, shall not
affect the guaranty of any person, corporation, partnership, or other entity
for payment of the indebtedness secured hereby, and shall not affect the
lien or priority of lien hereof on the Collateral. The Debtor shall pay the
Secured Party a reasonable service charge, together with such title
insurance premiums and attorneys' fees as may be incurred at the Secured
Party's option for any such action if taken at the Debtor's request.
Section 12. Forbearance by Secured Party Not a Waiver. Any
forbearance by the Secured Party in exercising any right or remedy
hereunder, or otherwise afforded by applicable law, shall not be a waiver
of or preclude the exercise of any right or remedy. The acceptance by the
Secured Party of payment of any sum secured by this Agreement and/or
the Financing Agreement after the due date of such payment shall not be a
waiver of the Secured Party's right to either require prompt payment when
due of all other sums so secured or to declare a default for failure to make
prompt payment. The procurement of insurance or the payment of taxes,
rents or other liens or charges by the Secured Party shall not be a waiver of
the Secured Party's right to accelerate the maturity of the indebtedness
secured by this Agreement, nor shall the Secured Party's receipt of any
awards, proceeds or damages as provided in this Agreement operate to
cure or waive the Debtor's default in payment of sums secured by this
Agreement.
Section 13. Uniform Commercial Code Security Agreement. This
Agreement is intended to be a security agreement pursuant to the Uniform
Commercial Code for any of the items specified above as part of the
Collateral which, under applicable law, may be subject to a security
interest pursuant to the Uniform Commercial Code, and the Debtor hereby
grants the Secured Party a security interest in said items. The Debtor
agrees that the Secured Party may file any appropriate document in the
appropriate index as a financing statement for any of the items specified
above as part of the Collateral. In addition, the Debtor agrees to execute
and deliver to the Secured Party, upon the Secured Party's request, any
financing statements, as well as extensions, renewals and amendments
thereof, and reproductions of this Agreement and/or the Financing
Agreement in such form as the Secured Party may require to perfect a
security interest with respect to said items. The Debtor shall pay all costs
of filing such financing statements and any extensions, renewals,
amendments, and releases thereof, and shall pay all reasonable costs and
expenses of any record searches for financing statements the Secured Party
may reasonably require. Without the prior written consent of the Secured
Party, the Debtor shall not create or suffer to be created pursuant to the
Uniform Commercial Code any other security interest in the Collateral,
including replacements and additions thereto. Upon the occurrence of an
event of default, the Secured Party shall have the remedies of a secured
party under the Uniform Commercial Code and, at the Secured Party's
option, may also invoke the other remedies provided in this Agreement
and/or the Financing Agreement as to such items. In exercising any of
said remedies, the Secured Party may proceed against the items of real
property and any items of personal property specified above as part of the
Collateral separately or together and in any order whatsoever, without in
any way affecting the availability of the Secured Party's remedies under
the Uniform Commercial Code or of the other remedies provided in this
Agreement and/or the Financing Agreement.
Section 14. Events of Default. The Debtor shall be in default under this
Agreement when any of the following events or conditions occurs:
14.1 The Debtor shall be in default under the Note.
14.2 The Debtor fails to comply with any term, obligation, covenant, or
condition contained in this Agreement and/or in the Financing Agreement,
within 10 days after receipt of written notice from the Secured Party
demanding such compliance.
14.3 Any warranty, covenant, or representation made to the Secured
Party by the Debtor under this Agreement, and/or under the Financing
Agreement, proves to have been false in any material respect when made
or furnished.
14.4 Any levy, seizure, attachment, lien, or encumbrance of or on the
Collateral which is not discharged by the Debtor within 10 days or, any
sale, transfer, or disposition of any interest in the Collateral, other than in
the ordinary course of business, without the written consent of the Secured
Party.
Section 15. Acceleration in Case of Borrower's Insolvency. If the
Debtor shall voluntarily file a petition under the federal Bankruptcy Act,
as such Act may from time to time be amended, or under any similar or
successor federal statute relating to bankruptcy, insolvency, arrangements
or reorganizations, or under any state bankruptcy or insolvency act, or file
an answer in an involuntary proceeding admitting insolvency or inability
to pay debts, or if the Debtor shall be adjudged a bankrupt, or if a trustee
or receiver shall be appointed for the Debtor's property, or if the Collateral
shall become subject to the jurisdiction of a federal bankruptcy court or
similar state court, or if the Debtor shall make an assignment for the
benefit of its creditors, or if there is an attachment, receivership, execution
or other judicial seizure, then the Secured Party may, at the Secured
Party's option, declare all of the sums secured by this Agreement to be
immediately due and payable without prior notice to the Debtor, and the
Secured Party may invoke any remedies permitted by this Agreement.
Any attorneys' fees and other expenses incurred by the Secured Party in
connection with the Debtor's bankruptcy or any of the other events
described in this Section shall be additional indebtedness of the Debtor
secured by this Agreement.
Section 16. Rights of Secured Party.
16.1 Upon default or at any time before default when the Secured Party
reasonably feels insecure, the Secured Party may require the Debtor to
assemble the Collateral and make it available to the Secured Party at the
place to be designated by the Secured Party which is reasonably
convenient to both parties. The Secured Party may sell all or any part of
the Collateral as a whole or in parcels either by public auction, private
sale, or other method of disposition. The Secured Party may bid at any
public sale on all or any portion of the Collateral. Unless the Collateral is
perishable or threatens to decline speedily in value or is of the type
customarily sold on a recognized market, the Secured Party shall give the
Debtor reasonable notice of the time and place of any public sale or of the
time after which any private sale or other disposition of the Collateral is to
be made, and notice given at least 10 days before the time of the sale or
other disposition shall be conclusively presumed to be reasonable. A
public sale in the following fashion shall be conclusively presumed to be
reasonable:
16.1.1 Notice shall be given at least 10 days before the date of sale
by publication once in a newspaper of general circulation published in the
county in which the sale is to be held;
16.1.2 The sale shall be held in a county in which the Collateral or
any part is located or in a county in which the Debtor has a place of
business;
16.1.3 Payment shall be in cash or by certified check immediately
following the close of the sale;
16.1.4 The sale shall be by auction, but it need not be by a
professional auctioneer;
16.1.5 The Collateral may be sold as is and without any
preparation for sale.
16.2 Notwithstanding any provision of this Agreement, the Secured
Party shall be under no obligation to offer to sell the Collateral. In the
event the Secured Party offers to sell the Collateral, the Secured Party will
be under no obligation to consummate a sale of the Collateral if, in its
reasonable business judgment, none of the offers received by it reasonably
approximates the fair value of the Collateral.
16.3 In the event the Secured Party elects not to sell the Collateral, the
Secured Party may elect to follow the procedures set forth in the Uniform
Commercial Code for retaining the Collateral in satisfaction of the
Debtor's obligation, subject to the Debtor's rights under such procedures.
16.4 In addition to the rights under this Agreement and/or the Financing
Agreement, in the event of a default by the Debtor, the Secured Party shall
be entitled to the appointment of a receiver for the Collateral as a matter of
right whether or not the apparent value of the Collateral exceeds the
outstanding principal amount of the Note and any receiver appointed may
serve without bond. Employment by the Secured Party shall not
disqualify a person from serving as receiver.
Section 17. Waiver of Statute of Limitations. Debtor hereby waives the
right to assert any statute of limitations as a bar to the enforcement of the
lien of this Agreement or to any action brought to enforce the Note or any
other obligation secured by this Agreement and/or the Financing
Agreement.
Section 18. Waiver of Marshaling. Notwithstanding the existence of
any other security interest in the Collateral held by the Secured Party or by
any other party, the Secured Party shall have the right to determine the
order in which any or all of the Collateral shall be subjected to the
remedies provided by this Agreement and/or the Financing Agreement.
The Secured Party shall have the right to determine the order in which any
or all portions of the indebtedness secured by this Agreement are satisfied
from the proceeds realized upon the exercise of the remedies provided in
this Agreement and/or the Financing Agreement. The Debtor, any party
who consents to this Agreement, and any party who now or hereafter
acquires a security interest in the Collateral and who has actual or
constructive notice of this Agreement, hereby waives any and all right to
require the marshaling of assets in connection with the exercise of any of
the remedies permitted by applicable law or by this Agreement and/or the
Financing Agreement.
Section 19. Provisions of Agreement. The Debtor agrees to comply
with the covenants and conditions of the Financing Agreement which is
hereby incorporated by reference in and made a part of this Agreement.
All advances made by the Secured Party pursuant to the Financing
Agreement shall be indebtedness of the Debtor secured by this Agreement,
and such advances may be obligatory as provided in the Agreement. All
sums disbursed by the Secured Party to protect the security of this
Agreement and/or the Financing Agreement up to the principal amount of
the Note shall be treated as disbursements pursuant to such Agreements.
All such sums shall bear interest from the date of disbursement at the rate
stated in the Note, unless collection from the Debtor of interest at such rate
would be contrary to applicable law in which event such amount shall bear
interest at the highest rate which may be collected from the Debtor under
applicable law. In case of a breach by the Debtor of the covenants and
conditions of the Agreement, the Secured Party at the Secured Party's
option (i) may invoke any of the rights or remedies provided in the
Agreement, (ii) may accelerate the sums secured by this Agreement and
invoke the remedies provided in this Agreement or, (iii) may do both.
Section 20. Remedies Cumulative. Each remedy provided in this
Agreement and/or the Financing Agreement is distinct and cumulative to
all other rights or remedies under this Agreement and/or the Financing
Agreement or afforded by law or equity, and may be exercised
concurrently, independently, or successively, in any order whatsoever.
Section 21. Notices. Any notices permitted or required under this
Agreement shall be deemed given upon the date of personal delivery or 48
hours after deposit in the United States mail, postage fully prepaid, return
receipt requested, addressed to Secured Party at:
Norman H. Winer
3050 Multifoods Tower
33 south 6th Street
Minneapolis, Minnesota 55402
with a copy to:
William D. Klein
3400 City Center
33 South 6th Street
Minneapolis, Minnesota 55402
addressed to the Debtor at:
Robert H. Blank
Skyway Advertising, Inc.
12 South 6th Street, Suite 1126
Minneapolis, Minnesota 55402
or at any other address as any party may, from time to time, designate by
notice given in compliance with this Section.
Section 22. Law Governing. This Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota.
Section 23. Titles and Captions. All section titles or captions contained
in this Agreement are for convenience only and shall not be deemed part
of the context nor effect the interpretation of this Agreement.
Section 24. Entire Agreement. This Agreement and the Note and other
agreements executed contemporaneously hereto contain the entire under-
standing between and among the parties and supersedes any prior
understandings and agreements among them respecting the subject matter
of this Agreement.
Section 25. Agreement Binding. This Agreement shall be binding
upon the heirs, executors, administrators, successors and assigns of the
parties hereto.
Section 26. Computation of Time. In computing any period of time
pursuant to this Agreement, the day of the act, event or default from which
the designated period of time begins to run shall be included, unless it is a
Saturday, Sunday or a legal holiday, in which event the period shall begin
to run on the next day which is not a Saturday, Sunday or legal holiday, in
which event the period shall run until the end of the next day thereafter
which is not a Saturday, Sunday or legal holiday.
Section 27. Pronouns and Plurals. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter,
singular or plural as the identity of the person or persons may require.
Section 28. Presumption. This Agreement or any section thereof shall
not be construed against any party due to the fact that said Agreement or
any section thereof was drafted by said party.
Section 29. Further Action. The parties hereto shall execute and deliver
all documents, provide all information and take or forbear from all such
action as may be necessary or appropriate to achieve the purposes of this
Agreement and the Financing Agreement.
Section 30. Parties in Interest. Nothing herein shall be construed to be
to the benefit of any third party, nor is it intended that any provision shall
be for the benefit of any third party.
Section 31. Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such
provision to persons or circumstances other than those as to which it is
held invalid, shall not be affected thereby.
Dated:
SKYWAY ADVERTISING, INC.
Norman Winer
By:
Robert H. Blank
Its: Executive Vice-President
GUARANTEE OF REPAYMENT
The undersigned, Robert H. Blank and Ann E. Tatlock do hereby
personally guarantee repayment to Norman Winer of all indebtedness of
Skyway Advertising, Inc. growing out of that certain Bridge Financing
Agreement and Promissory Note executed this Day of November,
1995.
Robert H. Blank
Ann E. Tatlock
TEMPORARY WAIVER OF RIGHT TO PUT
WHEREAS, the undersigned is a record owner of
shares of Series Convertible Preferred Stock of Skyway Advertising,
Inc. (the "Company"); and
WHEREAS, the Company proposes to enter into a Bridge
Financing Agreement (the "Agreement") with an unrelated lender
("Lender") in the form attached hereto as Exhibit "A", as revised; and
WHEREAS, the undersigned agrees that the proposed financing is
in the best interests of the Company; and
WHEREAS, as a condition of the financing proposed by said
Agreement, the Company has been asked to request that its holders of
Series A and/or Series B Convertible Preferred Stock waive their right to
"put" their shares to the Company until after the proposed indebtedness is
repaid in full;
NOW, IN CONSIDERATION OF THE FOREGOING,
I, , a record owner of
shares of the Series Convertible Preferred Stock of the Company, do
hereby waive my right to put my preferred shares to the Company at any
time until after the above-described indebtedness of the Company to
Lender is repaid in full. I understand that the lender is relying upon this
waiver in entering into and performing the Bridge Financing Agreement.
Dated: November , 1995
SUBORDINATION AGREEMENT
WHEREAS, Skyway Advertising, Inc. (the "Company") proposes
to enter into a Bridge Financing Agreement (the "Agreement") with
Norman Winer ("Winer" or "Lender") in the form attached hereto as
Exhibit "A"; and
WHEREAS, the undersigned agree that the financing proposed
by said Agreement is in the best interests of the Company; and
WHEREAS, the proceeds of said financing are designated by the
Company as partial payment of the agreed upon redemption of the
common stock of the Company heretofore owned by the undersigned; and
WHEREAS, the said financing is to be repaid not later than 120
days after closing scheduled to take place on or about November 17, 1995;
and
WHEREAS, as a condition of the financing proposed by said
Agreement, the related creditors of the Company must subordinate their
interest, including security interests, and forgo repayment of all debts
owing until after the proposed indebtedness to Winer is repaid in full;
NOW, IN CONSIDERATION OF THE FOREGOING,
We, Mark W. Lease and Michael W. Lease, do hereby agree to
subordinate our rights to repayment of all debts from the Company,
whether now owing or hereafter created; owed to us jointly, severally or in
the name of our partnership, Lease Companies, Inc.; until the above-described
indebtedness of the Company to Norman Winer is repaid in full.
Dated: November , 1995
Mark W. Lease
Michael W. Lease