Attached files
| file | filename |
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| 8-K - NATIONAL RESEARCH CORP | v192465_8k.htm |
| EX-2.1 - NATIONAL RESEARCH CORP | v192465_ex2-1.htm |
| EX-4.2 - NATIONAL RESEARCH CORP | v192465_ex4-2.htm |
| EX-99.1 - NATIONAL RESEARCH CORP | v192465_ex99-1.htm |
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For
Bank Use Only
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Reviewed
by _________________
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Due
July 31, 2013
Customer
# 1735063949 Loan
#_____________
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INSTALLMENT
OR SINGLE PAYMENT NOTE
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$10,000,000.00
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July
30, 2010
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FOR VALUE
RECEIVED, the undersigned borrower (the "Borrower”), promises to pay to
the order of U.S. BANK
N. A. (the "Bank"), the principal sum of
TEN MILLION DOLLARS ($10,000,000.00) the "Loan Amount).
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1.
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Terms for Advance(s). [Choose
One:]
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x Single
Advance
o Multiple
Advances. Prior to n/a or the earlier
termination hereof, the Borrower may obtain advances from the Bank under this
Installment or Single Payment Note (the "Note") in an aggregate amount
not exceeding the Loan Amount. Although this Note is expressed as payable in the
full Loan Amount, the Borrower will be obligated to pay only the amounts
actually disbursed hereunder, together with accrued interest on the outstanding
balance at the rates and on the dates specified therein and such other charges
provided for herein.
2. Interest.
The
unpaid principal balance will bear interest at an annual rate of
3.79%.
3. Payment Schedule.
See
Attached Payment Schedule Rider
4. Closing Fee. o If checked here, the
Borrower will pay the Bank a one-time closing fee of $ n/a
contemporaneously with execution of this Note. This fee is in
addition to all other fees, expenses and other amounts due
hereunder.
5. Late Payment Fee. Subject to
applicable law, if any payment is not made on or before its due date, the Bank
may collect a delinquency charge of 5.00% of the unpaid
amount. Collection of the late payment fee shall not be deemed to be a waiver of
the Bank's right to declare a default hereunder.
6. Calculation of Interest.
Interest will be computed for the actual number of days principal is unpaid,
using a daily factor obtained by dividing the stated interest rate by
360.
7. Default Interest
Rate. Notwithstanding any provision of this Note to the
contrary, upon any default or at any time during the continuation thereof
(including failure to pay upon maturity), the Bank may, at its option and
subject to applicable law, increase the interest rate on this Note to a rate of
5% per annum plus the interest rate otherwise payable hereunder. Notwithstanding
the foregoing and subject to applicable law, upon the occurrence of a default by
the Borrower or any guarantor involving bankruptcy, insolvency, receivership
proceedings or an assignment for the benefit of creditors, the interest rate on
this Note shall automatically increase to a rate of 5% per annum plus the rate
otherwise payable hereunder.
8. Maximum Rate. In no event will
the interest rate hereunder exceed that permitted by applicable law. If any
interest or other charge is finally determined by a court of competent
jurisdiction to exceed the maximum amount permitted by law, the interest or
charge shall be reduced to the maximum permitted by law, and the Bank may credit
any excess amount previously collected against the balance due or refund the
amount to the Borrower.
9. Additional Terms. This note
may be prepaid in full or in part at any time without prepayment penalty or fee.
Prepayments of less than all the outstanding principal amount of this Note shall
be applied upon principal payments in the inverse order of their
maturities.
Notice/Cure
Period. In the event default shall be made by the Borrower in
the due observance or performance of any covenant, condition or agreement
contained herein (other than those specified in sections 13(a), 13(c) and 13(f)
below), the Borrower shall have a period of thirty (30) days following the
earlier to occur of (i) Borrower’s actual knowledge of such default or (ii)
written notice provided by the Bank to Borrower which shall specify the claimed
default and shall be provided in accordance with section 6.7of the Revolving
Credit Agreement in which to cure such default. During such cure
period, the Bank shall have the right to cease making additional advances to
Borrower pursuant to the Note.
10. Financial Information. The
Borrower will (i) maintain accounting records in accordance with generally
recognized and accepted principles of accounting consistently applied throughout
the accounting periods involved; (ii) provide the Bank with such information
concerning its business affairs and financial condition (including insurance
coverage) as the Bank may reasonably request; and (iii) without request, provide
the Bank with annual financial statements prepared by an accounting firm
acceptable to the Bank within 120 days of the end of each fiscal
year.
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11. Credit Balances; Setoff. As
additional security for the payment of the obligations described in this Note or
any document securing or related to the loan evidenced by this Note
(collectively the "Loan
Documents') and any other obligations of the Borrower to the Bank of any
nature whatsoever (collectively the "Obligations)', the Borrower
hereby grants to the Bank a security interest in, a lien on and an express
contractual right to set off against all depository account balances, cash and
any other property of the Borrower now or hereafter in the possession of the
Bank and the right to refuse to allow withdrawals from any account (collectively
"Setoff”). The Bank may,
at any time upon the occurrence of a default hereunder and after expiration of
any applicable cure period, Setoff against the Obligations whether or not the
Obligations (including future installments) are then due or have been
accelerated, all without any advance or contemporaneous notice or demand of any
kind to the Borrower, such notice and demand being expressly
waived.
12. Advances and Paying Procedure.
The Bank is authorized and directed to credit any of the Borrower's accounts
with the Bank (or to the account the Borrower designates in writing) for all
loans made hereunder, and the Bank is authorized to debit such account or any
other account of the Borrower with the Bank for the amount of any principal,
interest or expenses due under the Note or other amount due hereunder on the due
date with respect thereto. Payments due under the Note and other Loan Documents
will be made in lawful money of the United States. All payments may be applied
by the Bank to principal, interest and other amounts due under the Loan
Documents in any order which the Bank elects. If, upon any request by the
Borrower to the Bank to issue a wire transfer, there is an inconsistency between
the name of the recipient of the wire and its identification number as specified
by the Borrower, the Bank may, without liability, transmit the payment via wire
based solely upon the identification number.
13. Defaults.
Notwithstanding any cure periods described below, the Borrower shall immediately notify
the Bank in writing when the Borrower obtains knowledge of the occurrence
of any default specified below. Regardless of whether the Borrower has given the
required notice, the occurrence of one or more of the following shall constitute
a default:
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(a)
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Nonpayment. The Borrower
shall fail to pay (i) any interest due on this Note or any fees, charges,
costs or expenses under the Loan Documents when due; or (ii) any principal
amount of this Note when due, except principal amount due at maturity, and
such nonpayment shall remain unremedied for a period of ten (10)
days.
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(b)
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Nonperformance. The
Borrower or any guarantor of the Borrower's Obligations to the Bank
("Guarantor")
shall fail to perform or observe any agreement, term, provision,
condition, or covenant (other than a default occurring under (a), (c),
(d), (e), (f) or (g) of this paragraph 13) required to be performed or
observed by the Borrower or any Guarantor hereunder or under any other
Loan Document or other agreement with or in favor of the
Bank.
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(c)
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Misrepresentation. Any
financial information, statement, certificate, representation or warranty
given to the Bank by the Borrower or any Guarantor (or any of their
representatives) in connection with entering into this Note or the other
Loan Documents and/or any borrowing thereunder, or required to be
furnished under the terms thereof, shall prove untrue or misleading in any
material respect (as determined by the Bank in the exercise of its
judgment) as of the time when
given.
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(d)
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Default on Other
Obligations. The Borrower or any Guarantor shall be in default
under the terms of any loan agreement, promissory note, lease, conditional
sale contract or other agreement, document or instrument evidencing,
governing or securing any indebtedness owing by the Borrower or any
Guarantor to the Bank or any indebtedness in excess of $100,000 owing by
the Borrower to any third party, and the period of grace, if any, to cure
said default shall have passed,
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(e)
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Judgments. Any
judgment shall be obtained against the Borrower or any Guarantor which,
together with all other outstanding unsatisfied judgments against the
Borrower (or such Guarantor), shall exceed the sum of $100,000 and shall
remain unvacated, unbonded or unstayed for a period of 30 days following
the date of entry thereof.
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(f)
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Inability to Perform;
Bankruptcy/insolvency. (i) The Borrower or any Guarantor shall die
or cease to exist; or (ii) any Guarantor shall attempt to revoke any
guaranty of the Obligations described herein, or any guaranty becomes
unenforceable in whole or in part for any reason; or (iii) any bankruptcy,
insolvency or receivership proceedings, or an assignment for the benefit
of creditors, shall be commenced under any Federal or state law by or
against the Borrower or any Guarantor; or (iv) the Borrower or any
Guarantor shall become the subject of any out-of-court settlement with its
creditors; or (v) the Borrower or any Guarantor is unable or admits in
writing its inability to pay its debts as they mature; or (vi) if the
Borrower is a limited liability company, any member thereof shall withdraw
or otherwise become disassociated from the
Borrower.
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(g)
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Adverse Change;
Insecurity. (i) There is a material adverse change in the business,
properties, financial condition or affairs of the Borrower or any
Guarantor, or in any collateral securing the Obligations; or (ii) the Bank
in good faith deems itself
insecure.
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14. Termination of Loans; Additional Bank
Rights. Upon the occurrence of any of the events identified in paragraph
13, the Bank may at any time (subject to any notice requirements or grace/cure
periods and the Bank’s right to cease making additional advances to Borrower,
all pursuant to section 9 above) (i) immediately terminate its obligation, if
any, to make additional loans to the Borrower; (ii) Setoff; and/or (iii) take
such other steps to protect or preserve the Bank's interest in any collateral,
including without limitation, notifying account debtors to make payments
directly to the Bank, advancing funds to protect any collateral and insuring
collateral at the Borrower's expense; all without demand or notice of any kind,
all of which are hereby waived.
15. Acceleration of Obligations.
Upon the occurrence of any of the events identified in paragraph 13(a)
through 13(e) and 13(g), and the passage of any applicable cure periods, the
Bank may at any time thereafter, by written notice to the Borrower, declare the
unpaid principal balance of any Obligations, together with the interest accrued
thereon and other amounts accrued hereunder and under the other Loan Documents,
to be immediately due and payable; and the unpaid balance shall thereupon be due
and payable, all without presentation, demand, protest or further notice of any
kind, all of which are hereby waived, and notwithstanding anything to the
contrary contained herein or in any of the other Loan Documents. Upon the
occurrence of any event under paragraph 13(f), the unpaid principal balance of
any Obligations, together with all interest accrued thereon and other amounts
accrued hereunder and under the other Loan Documents, shall thereupon be
immediately due and payable, all without presentation, demand, protest or notice
of any kind, all of which are hereby waived, and notwithstanding anything to the
contrary contained herein or in any of the other Loan Documents. Nothing contained in paragraph 13 or
14 or this paragraph shall limit the Bank's right to Setoff as provided in this
Note.
16. Collateral. This Note is
secured by any and all security interests, pledges, mortgages/deeds of trust
(except any mortgage/deed of trust expressly limited by its terms to a specific
obligation of Borrower to Bank) or liens now or hereafter in existence granted
to the Bank to secure indebtedness of the Borrower to the Bank (unless
prohibited by law), including, without limitation, as described in the following
documents: Mortgage/Deed
of Trust dated 05/26/06; Security Agreement dated
05/26/06.
_____________________________________________________________________________________
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17. Guaranties. This Note is
guarantied by each and every guaranty now or hereafter in existence guarantying
the indebtedness of the Borrower to the Bank (except for any guaranty expressly
limited by its terms to a specific separate obligation of Borrower to the Bank)
including, without limitation, the
following: ___________________________________
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N/A
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18. Additional Bank Rights.
Without affecting the liability of any Borrower, endorser, surety or
guarantor, the Bank may, without notice, renew or extend the time for payment,
accept partial payments, release or impair any collateral security for the
payment of this Note, or agree not to sue any party liable on it.
19. Warranties. The Borrower makes
the following warranties: (A) This Note and the other Loan Documents are the
legal, valid and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their terms. (B) The execution, delivery and
performance of this Note and all other Loan Documents to which the Borrower is a
party (i) are within the borrower's power; (ii) have been duly authorized by all
appropriate entity action; (iii) do not require the approval of any governmental
agency; and (iv) will not violate in any material respect any law, agreement or
restriction by which the Borrower is bound. (C) If the Borrower is not an
individual, the Borrower is validly existing and in good standing under the laws
of its state of organization, has all requisite power and authority and
possesses all licenses necessary to conduct its business and own its
properties.
20. Waivers; Relationship to Other
Documents. All Borrowers, endorsers, sureties and guarantors waive
presentment, protest, demand, and notice of dishonor. No delay on the part of
the Bank in exercising any right, power or privilege hereunder or under any of
the other Loan Documents will operate as a waiver thereof, nor will any single
or partial exercise of any right, power or privilege hereunder preclude other or
further exercise thereof or the exercise of any other right, power or privilege.
The warranties, covenants and other obligations of the Borrower (and rights and
remedies of the Bank) in this Note and all related documents are intended to be
cumulative and to supplement each other.
21. Expenses and Attorneys' Fees.
Upon demand, the Borrower will immediately reimburse the Bank and any
participant in the Obligations ("Participant”) all attorneys' fees and
all other costs, fees and out-of-pocket disbursements incurred by the Bank or
any Participant in connection with the preparation, execution, delivery,
administration, defense and enforcement of this Note or any of the other Loan
Documents, including attorneys' fees and all other costs and fees (a) incurred
before or after commencement of litigation or at trial, on appeal or in any
other proceeding, (b) incurred in any bankruptcy proceeding and (c) related to
any waivers or amendments with respect thereto (examples of costs and fees
include but are not limited to fees and costs for: filing, perfecting or
confirming the priority of the Bank's lien, title searches or insurance,
appraisals, environmental audits and other reviews related to the Borrower, any
collateral or the loans, if requested by the Bank). The Borrower will also
reimburse the Bank and any Participant for all costs of collection before and
after judgment, and the costs of preservation and/or liquidation of any
collateral.
22. Applicable Law and Jurisdiction; Interpretation;
Joint Liability; Severability. This Note and all other Loan Documents
shall be governed by and interpreted in accordance with the internal laws of the
State of Nebraska except to the extent superseded by Federal law. THE BORROWER
HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT
SITUATED IN THE COUNTY OR FEDERAL JURISDICTION OF THE BANK'S BRANCH WHERE THE
LOAN WAS ORIGINATED, AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS,
WITH REGARD TO ANY ACTIONS, CLAIMS, DISPUTES OR PROCEEDINGS RELATING TO THIS
NOTE, THE COLLATERAL, ANY OTHER LOAN DOCUMENT, OR ANY
TRANSACTIONSARISINGTHEREFROM, OR ENFORCEMENT AND/OR INTERPRETATION OF ANY OF THE
FOREGOING. Nothing herein shall affect the Bank's rights to serve process in any
manner permitted by law, or limit the Bank's right to bring proceedings against
the Borrower in the competent courts of any other jurisdiction or jurisdictions.
This Note, the other Loan Documents and any amendments hereto (regardless of
when executed) will be deemed effective and accepted only upon the Bank's
receipt of the executed originals thereof. If there is more than one Borrower,
the liability of the Borrowers shall be joint and several, and the reference to
"Borrower" shall be deemed to refer to all Borrowers. Invalidity of any
provision of this Note shall not affect the validity of any other
provision.
23. Successors. The rights,
options, powers and remedies granted in this Note and the other Loan Documents
shall be binding upon the Borrower and the Bank and their respective successors
and assigns, and shall inure to the benefit of the Borrower and the Bank and the
successors and assigns of the Bank, including without limitation any purchaser
of any or all of the rights and obligations of the Bank under the Note and the
other Loan Documents. The Borrower may not assign its rights or obligations
under this Note or any other Loan Documents without the prior written consent of
the Bank.
24. Disclosure. The Bank may, in
connection with any sale or potential sale of all or any interest in the Note
and other Loan Documents, disclose any financial information the Bank may have
concerning the Borrower to any purchaser or potential purchaser. From time to
time, the Bank may, in its discretion and without obligation to the Borrower,
any Guarantor or any other third party, disclose information about the Borrower
and this loan to any Guarantor, surety or other accommodation party. This
provision does not obligate the Bank to supply any information or release the
Borrower from its obligation to provide such information, and the Borrower
agrees to keep all Guarantors, sureties or other accommodation parties advised
of its financial condition and other matters which may be relevant to their
obligations to the Bank.
25. Copies; Entire Agreement;
Modification. The Borrower hereby acknowledges the receipt of a copy of
this Note and all other Loan Documents. This Note is a "transferable record" as
defined in applicable law relating to electronic transactions. Therefore, the
holder of this Note may, on behalf of Borrower, create a microfilm or optical
disk or other electronic image of this Note that is an authoritative copy as
defined in such law. The holder of this Note may store the authoritative copy of
such Note in its electronic form and then destroy the paper original as part of
the holder's normal business practices. The holder, on its own behalf, may
control and transfer such authoritative copy as permitted by such
law.
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IMPORTANT:
READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY
BECAUSE ONLY THOSE TERMS IN WRITING, EXPRESSING CONSIDERATION AND SIGNED BY THE
PARTIES ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS
WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. THE TERMS OF THIS AGREEMENT MAY ONLY
BE CHANGED BY ANOTHER WRITTEN AGREEMENT. THIS NOTICE SHALL ALSO BE EFFECTIVE
WITH RESPECT TO ALL OTHER CREDIT AGREEMENTS NOW IN EFFECT BETWEEN BORROWER AND
THE BANK. A MODIFICATION OF ANY OTHER CREDIT AGREEMENTS NOW IN EFFECT BETWEEN
BORROWER AND THE BANK, WHICH OCCURS AFTER RECEIPT BY BORROWER OF THIS NOTICE,
MAY BE MADE ONLY BY ANOTHER WRITTEN INSTRUMENT. ORAL OR IMPLIED MODIFICATIONS TO
SUCH CREDIT AGREEMENTS ARE NOT ENFORCEABLE AND SHOULD NOT BE RELIED
UPON.
26. Waiver of Jury Trial. TO THE EXTENT
PERMITTED BY LAW, THE BORROWER AND THE BANK HEREBY JOINTLY AND SEVERALLY WAIVE
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO ANY
OF THE LOAN DOCUMENTS, THE OBLIGATIONS THEREUNDER, ANY COLLATERAL SECURING THE
OBLIGATIONS, OR ANY TRANSACTION ARISING THEREFROM OR CONNECTED THERETO. THE
BORROWER AND THE BANK EACH REPRESENTS TO THE OTHER THAT THIS WAIVER IS
KNOWINGLY, WILLINGLY AND VOLUNTARILY GIVEN.
27. Attachments.
All documents attached hereto, including any appendices, schedules, riders, and
exhibits to this Installment or Single Payment Note, are hereby expressly
incorporated by reference.
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(Individual
Borrower)
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National Research
Corporation
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Borrower
Name (Organization)
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A Wisconsin Corporation
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Borrower
Name N/A
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By
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/s/ Patrick E.
Beans
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Name
and Title Patrick E. Beans, Chief Financial
Officer
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Borrower
Name N/A
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Borrower
Address: 1245 Q Street,
Lincoln, NE 68508
Borrower
Telephone Number: ____________________________________
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PAYMENT
SCHEDULE RIDER
This
Rider is made part of the Installment or Single Payment Note (the “Note”) in the
original amount of $10,000,000.00 by the undersigned borrower (the “Borrower”)
in favor of U.S. Bank N.A. (the “Bank”) as of the date identified
below. The following payment scheduled is hereby added to the
Note:
Principal
and interest are payable in 35 installments of $121,190.01 each, beginning
August 31, 2010, and on the last day of each consecutive month thereafter, plus
a balloon payment equal to all unpaid principal and accrued interest on July 31,
2013, the maturity date.
Dated
July 30, 2010.
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National
Research Corporation, A Wisconsin Corporation
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By
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/s/ Patrick E. Beans
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Patrick
E. Beans, Chief Financial
Officer
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ADDENDUM
TO NOTE
NOTICE
PURSUANT TO NEBRASKA REVISED STATUTES 45-1,112 et. seq.
This
Notice is Provided Pursuant to Nebraska Revised Statutes 45-1,112 et
seq.
NOTICE -
WRITTEN AGREEMENTS. A credit agreement must be in writing to be
enforceable under Nebraska law. To protect you and us from any
misunderstandings or disappointments, any contract, promise, undertaking, or
offer to forebear repayment of money or to make any other financial
accommodation in connection with this loan of money or grant or extension of
credit, or any amendment of, cancellation of, waiver of, or substitution for any
or all of the terms or provisions of any instrument or document executed in
connection with this loan of money or grant or extension of credit, must be in
writing to be effective.
IN
WITNESS WHEREOF, the undersigned have executed and acknowledged this NOTICE
PURSUANT TO NEBRASKA REVISED STATUTES 45-1,112 et seq. as of July 30,
2010.
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NATIONAL
RESEARCH CORPORATION,
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A
Wisconsin Corporation
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By:
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/s/ Patrick E. Beans
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Name
and Title: Patrick E. Beans,
C.F.O.
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U.
S. BANK N.A.
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By:
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/s/ Elizabeth A. Morgan
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Name
and Title: Elizabeth A. Morgan,
Vice
President
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Borrower
Address: 1245 Q Street, Lincoln, NE 68508
Borrower
Telephone No.: ______________________
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SECOND
ADDENDUM TO NOTE
This
Addendum is made part of the Installment
or Single Payment Note dated as of the date of this Addendum (the "Note") by the undersigned
borrower (the "Borrower”) in favor U.S. BANK N.A.
(the "Bank") in the
original principal amount of $10,000,000.00. The warranties, covenants and other
terms described below are hereby added to the Note.
Incorporation of Loan Agreement.
Borrower and Bank entered into a loan agreement dated June 30,
2010 (as amended, extended, or restated from time to time,
the "Loan
Agreement”) which Loan Agreement
remains in full force and effect and is incorporated in its entirety herein by
reference as though fully set forth herein. The warranties, covenants and other
obligations of Borrower (and the rights and remedies of Bank) that are outlined
in the Note and the Loan Agreement are intended to supplement each other. In the
event of any inconsistencies in any of the terms of the Note and the Loan
Agreement, all terms will be cumulative so as to give Bank the most favorable
rights set forth in the conflicting documents, except that if there is a direct
conflict between the Note and the Loan Agreement, the terms of the Note shall
control as to the loan covered by the Note. The provisions of the Loan Agreement
shall continue in full force and effect with respect to the Note notwithstanding
termination of the Loan Agreement subsequent to the date hereof unless the
documentation terminating the Loan Agreement expressly states that the
representations, warranties and covenants of the Borrower as set forth in the
Loan Agreement no longer apply to the Note. The Note is in addition to any notes
referred to in the Loan Agreement. The term “Loan Agreement” shall
mean the Revolving Credit Agreement dated June 30, 2010.
Dated as
of: July 30,
2010 .
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National Research
Corporation
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Borrower
Name (Organization)
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A Wisconsin Corporation
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By
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/s/
Patrick E. Beans
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Name
and Title Patrick E. Beans, Chief Financial
Officer
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Agreed
to:
U.S.
Bank N.A.
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By
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/s/
Elizabeth A. Morgan
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Name
and Title Elizabeth A. Morgan,
Vice
President
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