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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 4)
FRANK E. BEST, INC.
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(Name of Issuer)
Common Stock Par Value $1.00
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(Title of Class of Securities)
086522109
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(CUSIP Number)
Russell C. Best, c/o Frank E. Best, Inc., P.O. Box 50444, Indianapolis, IN 46250
(317) 849-2250
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
August 25, 1997
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), checking the following box
_____.
Check the following box if a fee is being paid with this statement _____.
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class. (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that
section of the Act but shall be subject to all other provisions of the Act
(however, see the Notes).
(Continued on following page(s))
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SCHEDULE 13D
CUSIP NO. 086522109 PAGE 2 OF 9 PAGES
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1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE
PERSONS
Russell C. Best -- Social Security Number ###-##-####
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
BK
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED / /
PURSUANT TO ITEMS 2(d) OR 2(e)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 169,970
OWNED BY ---------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH None
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9 SOLE DISPOSITIVE POWER
169,970
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10 SHARED DISPOSITIVE POWER
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
169,970
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) / /
EXCLUDES CERTAIN SHARES*
Not applicable
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
56.2%
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14 TYPE OF REPORTING PERSON IN
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
2 OF 9
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SCHEDULE 13D
CUSIP NO. 086522109 PAGE 3 OF 9 PAGES
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Walter E. Best Company, Inc. -- EIN 35-1842918
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
Not applicable
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED / /
PURSUANT TO ITEMS 2(d) OR 2(e)
Not applicable
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Indiana
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NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY
OWNED BY ---------------------------------------------------------------
EACH 8 SHARED VOTING POWER
REPORTING
PERSON WITH None
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9 SOLE DISPOSITIVE POWER
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10 SHARED DISPOSITIVE POWER
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) / /
EXCLUDES CERTAIN SHARES*
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
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14 TYPE OF REPORTING PERSON IN
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
3 OF 9
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ITEM 1. SECURITY AND ISSUER.
This Schedule relates to the class of common stock, par value $1.00 per
share, of Frank E. Best, Inc. (the "FEBI Shares"). The address of the
principal executive offices of Frank E. Best, Inc. ("FEBI") is: P.O. Box 50444,
Indianapolis, Indiana 46250.
ITEM 2. IDENTITY AND BACKGROUND.
The two persons jointly filing this amended statement pursuant to Reg.
Section 240.13d-1(f)(1) are Russell C. Best and Walter E. Best Company, Inc.
A. INFORMATION RESPECTING RUSSELL C. BEST.
1. The person filing this statement is Russell C. Best ("Best").
2. His business address is P.O. Box 50444, Indianapolis, Indiana
46250.
3. Best is Chief Executive Officer of Best Lock
Corporation, a corporation incorporated under the laws of
Delaware ("BLC"). Best Lock Corporation's address is P.O. Box
50444, Indianapolis, Indiana 46250 and its principal business
is the manufacture and sale of master keyed locking systems.
4. During the last five years, Best has not been
convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors.)
5. During the last five years, Best was not a party
to a civil proceeding of a judicial or administrative body of
competent jurisdiction and has not been, and is not now
subject to any judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any
violation with respect to such laws.
6. Best is a citizen of the United States of
America.
B. INFORMATION RESPECTING WALTER E. BEST COMPANY, INC.
1. The person filing this statement is Walter E.
Best Company, Inc. ("WEBCO").
2. WEBCO is incorporated under the laws of the State
of Indiana. WEBCO is a holding company in the business of
owning assets for investment purposes. The address of
each of WEBCO's principal business and principal office is
P.O. Box 50444, Indianapolis, Indiana 46250.
3. During the last five years, WEBCO has not been
convicted in a criminal proceeding of any type. Similarly,
during the last five years, WEBCO was not a party to a civil
proceeding of a judicial or administrative body of competent
jurisdiction and has not been, and is not now subject to any
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judgment, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect
to such laws.
C. INFORMATION RESPECTING EXECUTIVE OFFICERS AND DIRECTORS OF
WEBCO.
1. RUSSELL C. BEST. Russell C. Best is President
and a director of WEBCO. For additional information regarding
Russell C. Best, see Item 2.A., above.
2. MARIEA L. BEST. Mariea L. Best is vice president
and a director of WEBCO. Her business address is: c/o Walter
E. Best Company, Inc., P.O. Box 50444, Indianapolis, Indiana
46250. She is a homemaker. During the last five years,
Mariea L. Best has not been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors).
During the last five years, she has not been a party to a
civil proceeding of a judicial or administrative body of
competent jurisdiction and has not been, and is not now
subject to any judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any
violation with respect to such laws. She is a citizen of the
United States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
On August 25, 1997, WEBCO purchased 23,000 FEBI shares for a total
consideration of $1,233,030.00. The source of the funds used in making these
purchases were borrowings from Huntington National Bank, Indianapolis, Indiana.
ITEM 4. PURPOSE OF TRANSACTION.
BCO, and BLC were general partners of Best Lock Partnership, an Indiana
general partnership ("BLP"), which owned 204,053 shares of FEBI. The partners
dissolved the partnership on August 25, 1997 and distributed the FEBI Shares
in accordance with the partnership agreement. Subsequently, WEBCO purchased the
23,000 shares of FEBI from BLC to reduce BLC's ownership of FEBI.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
A. INTEREST OF BEST
1. Best beneficially owns 169,970 FEBI Shares. He
actually owns 115,809 shares in his own name. His wife,
Mariea L. Best, owns 1 FEBI Share. By virtue of his ownership
of the 1,000 voting common shares of WEBCO (100% of the
outstanding voting shares), he beneficially owns an additional
54,161 FEBI Shares which are actually owned by WEBCO. Best
also owns 465 non-voting shares of WEBCO The aggregate
percentage of the
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FEBI Shares issued and outstanding which Best beneficially
owns is approximately 56.2%.
2. The number of FEBI Shares as to which Best has
the sole power to vote or to direct the vote is 169,970. The
number of FEBI Shares as to which Best has a shared power to
vote or to direct the vote is zero. The number of FEBI Shares
as to which Best has the sole power to dispose is 169,970.
The number of FEBI Shares as to which Best has a shared power
to dispose is zero.
3. Except for the distribution of FEBI Shares in
connection with its dissolution of BLP, Best has not been a
party to any transaction involving FEBI Shares that was
effected during the past sixty days.
4. Except for Mariea L. Best as respects the 1 FEBI
Share which she actually owns, no other person is known to
have the right to receive the power to direct the receipt of
dividends from, or the proceeds from the sale of, the FEBI
Shares which Best beneficially owns.
B. INTEREST OF WEBCO.
1. WEBCO beneficially owns 54,161 FEBI Shares.
WEBCO has direct ownership of all such FEBI shares. The
aggregate percentage of the FEBI Shares issued and outstanding
which WEBCO owns is approximately 17.9%.
2. The number of FEBI Shares as to which WEBCO has
the sole power to vote or to direct the vote is 54,161. The
number of FEBI Shares as to which WEBCO has a shared power to
vote or to direct the vote is zero. The number of FEBI
Shares as to which WEBCO has the sole power to dispose is
54,161. The number of FEBI Shares as to which WEBCO has a
shared power to dispose is zero.
3. Except for the distribution of FEBI Shares in
connection with its dissolution of BLP, WEBCO has not been a
party to any transaction involving FEBI Shares that was
effected during the past sixty days.
4. No person is known to have the right to directly
receive or the power to direct the receipt of dividends from,
or the proceeds from the sale of, the FEBI Shares which WEBCO
beneficially owns other than Mariea L. Best and Best, as
custodian for Alexander Best (his son), under the Indiana
U/T/M/A, who own, respectively, 58 and 78 non-voting shares of
WEBCO. As the holder of all of the voting common shares of
WEBCO, however, Russell C. Best has powers consistent with
being the controlling shareholder of WEBCO.
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C. INTEREST OF EXECUTIVE OFFICERS AND DIRECTORS OF WEBCO.
1. RUSSELL C. BEST, PRESIDENT AND DIRECTOR. See
Item 5, Section A above.
2. MARIEA L. BEST, VICE PRESIDENT AND DIRECTOR.
a. Mariea L. Best beneficially owns 1
FEBI Share, which is owned in her own name. The
aggregate percentage of the FEBI Shares issued and
outstanding which Mariea L. Best owns is approximately
0.0%.
b. The number of FEBI Shares as to which
Mariea L. Best has the sole power to vote or to direct
the vote is 1. The number of FEBI Shares as to which
Mariea L. Best has a shared power to vote or to direct
the vote is zero. The number of FEBI Shares as to which
Mariea L. Best has the sole power to dispose is 1. The
number of FEBI Shares as to which Mariea L. Best has a
shared power to dispose is zero.
c. Mariea L. Best has not been a party
to any transaction involving FEBI Shares that was
effected during the past sixty days.
d. No other person is known to have the
right to receive or the power to direct the receipt of
dividends from, or the proceeds from the sale of, the
FEBI Shares which Mariea L. Best beneficially owns.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
To the best knowledge of the parties filing this Schedule, none of Best,
WEBCO or any Executive Officer or Director of WEBCO is a party to any contract,
arrangement, understanding or relationship (legal or otherwise) with respect to
FEBI Shares which either Best or WEBCO beneficially owns, except for the
following:
113,311 of the FEBI Shares which Best owns directly are pledged as
security for a loan obtained by Best from BLC on May 18, 1994. A copy of the
Loan Agreement with respect to such loan was filed as an Exhibit to an amended
Schedule 13D filed by Best on May 31, 1994.
Best has personally guaranteed the repayment of the funds borrowed by
WEBCO to purchase the FEBI Shares. In addition, all of Best's shares of WEBCO
and all of WEBCO's shares of FEBI are pledged as security for a loan obtained
by WEBCO from Huntington National Bank ("Huntington") on August 25, 1997. A
copy of the promissory note, the guaranty and both stock pledge agreements are
being filed as Exhibits hereto.
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ITEM 7.MATERIAL TO BE FILED AS EXHIBITS.
The following items are filed herewith and incorporated herein:
99.1. A copy of the written agreement of Best and WEBCO relating to
their joint filing of this statement as required by Reg. Section
240.13d-1(f);
99.2. Promissory Note dated August 25, 1997 by WEBCO in favor of
Huntington;
99.3. Continuing Guaranty dated August 25, 1997 by Best in favor of
Huntington;
99.4. Stock Pledge Agreement dated August 25, 1997 by Best in favor
of Huntington; and
99.5. Stock Pledge Agreement dated August 25, 1997 by WEBCO in
favor of Huntington;
SIGNATURES.
After reasonable inquiry and to the best of our knowledge and belief, we
certify that the information set forth in this statement is true, complete and
correct.
Date: September 4, 1997 Date: September 4, 1997
_________________________________ ____________________________
/s/ Russel C. Best WALTER E. BEST COMPANY, INC.
_______________________________________
Russell C. Best
By: /s/ Russell C. Best
_____________________________
Russell C. Best, President
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EXHIBIT 99.1
AGREEMENT
We, Russell C. Best and Walter E. Best Company, Inc., an Indiana
corporation ("WEBCO"), hereby agree that the Schedule 13D to which this
Agreement is an Exhibit, respecting the acquisition of additional common stock
of Frank E. Best, Inc. by WEBCO, is to be filed jointly by us on behalf of all
of us.
This Agreement is intended to satisfy the requirements of Reg. Section
240.13d-1(f).
We agree that we will jointly file any required amendments to this
Schedule 13D.
Dated this 4 day of September, 1997
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/s/ Russell C. Best
______________________________________
Russell C. Best
WALTER E. BEST COMPANY, INC.
By: /s/ Russell C. Best
____________________________________
Russell C. Best, President
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EXHIBIT 99.2
PROMISSORY NOTE
U.S. $1,233,030.00 Indianapolis, Indiana
Executed to be effective
August 25, 1997
For the value received, WALTER E. BEST COMPANY, INC., an Indiana
corporation having its principal office at 6161 East 75th Street, Indianapolis,
Indiana 46250 (hereinafter referred to as "Maker"), unconditionally promises to
pay, on or before August __, 1998 (the "Maturity Date"), in the manner
hereinafter specified and at the times hereinafter specified, to the order of
THE HUNTINGTON NATIONAL BANK, a national banking association having banking
offices at 201 North Illinois Street, Suite 1800, Indianapolis, Indiana 46204
(hereinafter referred to as "Huntington"), at such banking offices or at such
other place or to such other party as the holder hereof may from time to time
designate, the principal sum of One Million Two Hundred Thirty-Three Thousand
Thirty and no/100 Dollars (U.S. $1,233,030.00), with interest on the principal
balance from time to time remaining unpaid at the applicable rates per annum
hereinafter specified.
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Interest Rate/Interest Payment
So long as no default has occurred and is continuing hereunder, interest
will accrue on the unpaid principal balance hereof at the rate of eight percent
(8%) per-annum.
Accrued interest shall be due and payable on each Interest Payment Date
and on the Maturity Date. For purposes of the preceding sentence, "Interest
Payment Date" shall mean November 25, 1997, February 25, 1998 and May 25, 1998.
Principal Repayment
On May 25, 1998 an installment of principal in the amount of Six Hundred
Sixteen Thousand Five Hundred Fifteen and no/100 Dollars ($616,515.00) shall be
due and payable. On the Maturity Date the entire unpaid principal balance
shall be due and payable.
Reimbursements/Default Interest/Late Charges
In addition, Maker shall pay to the holder hereof (a) all reasonable
fees, costs and expenses (including but not limited to the reasonable fees and
out-of-pocket expenses of any legal counsel) incurred by the holder in
connection with the collection of the indebtedness evidenced hereby and the
enforcement or attempted enforcement of this Note, or any agreement, instrument
or document executed in connection with this Note, and (b) interest at the rate
of ten percent (10%) per annum during the period of delinquency on all amounts
not paid when due.
Maker shall pay a "late charge" for the purpose of defraying expense
incident to handling upon any installment of principal or interest, or portion
thereof, referred to above not paid within ten (10) days after the date when
first due at the rate of five cents ($0.05) for each dollar ($1.00) so overdue.
Nothing herein contained shall be construed as a waiver by the holder of this
Note of its option to declare a default if any payment of any installment of
principal or
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interest, or portion thereof, is not made when due, and the assessment of a
late charge shall not affect the right of the holder of this Note to increase
the rate of interest as herein provided on all amounts not paid when due.
Guaranty/Security
This Note shall be entitled to the benefits of and is secured by (a) a
certain Stock Pledge Agreement dated of even date herewith, executed by Maker
to Lender ("the Maker Pledge Agreement"), (b) a certain Continuing Guaranty
dated of even date herewith, executed by Russell C. Best to Lender ("the
Guaranty"), (c) a certain Stock Pledge Agreement of even date herewith,
executed by Russell C. Best to Lender ("the Guarantor Pledge Agreement), and
(d) any other security agreements or documents hereafter executed to Lender in
connection with this Note, as any/all of the foregoing may hereafter from time
to time be amended.
Default
All of the indebtedness evidenced hereby and remaining unpaid shall, at
the option of the holder and without demand or notice, become immediately due
and payable upon the occurrence of an Event of Default (as such term is
hereinafter defined). For purposes of this Note, "Event of Default" shall
mean:
(a) a failure by Maker to pay when due any interest required by this
Note;
(b) a failure by Maker to pay when due any principal required by this
Note;
(c) a breach of or a failure to comply in a timely manner with
any of the other terms, conditions, agreements or covenants of this
Note;
(d) a breach of or a failure to comply timely with any of the
representations, warranties, terms, conditions, agreements or
covenants of the Maker Pledge
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Agreement, Guaranty, Guarantor Pledge Agreement or any other security
agreement or document executed to Huntington in connection with this
Note.
(e) a dissolution or liquidation of Maker or Frank E. Best, Inc.,
a Delaware corporation ("FEB");
(f) an assignment for the benefit of creditors by Maker,
Guarantor or FEB;
(g) an appointment of a receiver or trustee for Maker, Guarantor
or FEB;
(h) a filing by Maker, Guarantor or FEB of a voluntary petition
for relief under the United States Bankruptcy Code;
(i) a filing against Maker, Guarantor or FEB of an involuntary
petition for relief under the United States Bankruptcy Code and the
failure of such petition to be dismissed within sixty (60) days
after its filing;
(j) an occurrence of any adverse change in the financial
condition of Maker, Guarantor or FEB which could reasonably be
expected to have a material adverse effect on the obligations of
Maker or Guarantor to meet its/his obligations with respect to this
Note;
(k) the holding of any voting share(s) of Maker by any party
other than Guarantor; or
(l) the incurring by Maker or FEB of any indebtedness (i.e., for
borrowed money or lease obligations) to any party other than
Huntington or Russell C. Best (without the prior written consent of
Huntington);
and any such event shall have remained unremedied for a period of
5 business days.
General
All amounts payable under or with respect to this Note shall be payable
without relief from valuation and appraisement laws.
This Note is given to evidence indebtedness of Maker to Huntington with
respect to the loan made by Huntington to Maker.
Presentment, notice of dishonor and demand, protest and diligence in
collection and bringing suit are hereby severally waived by Maker and each
endorser or guarantor, each of whom hereby consents that the time for the
payment of this Note, or of any installment
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hereunder, may be extended from time to time without notice by the holder. No
waiver of any default or failure to delay to exercise any right or remedy by the
holder of this Note shall operate as a waiver of any other default or of the
same default in the future or as a waiver of any right or remedy with respect to
the same or any other occurrence.
Each payment hereunder prior to default shall be applied first to the
payment of accrued and unpaid interest and then to the reduction of the
principal balance. After a default, payments shall be applied by the holder of
this Note in its sole discretion. Maker may prepay all or any portion of the
principal amount outstanding under this Note at any time and from time to time
without penalty. No such prepayment shall be readvanced.
It is the intention of the parties hereto to comply strictly with all
applicable usury laws. Accordingly, in no event and upon no contingency
shall the holder be entitled to receive, collect or apply as interest any
interest, fees, charges or other payments equivalent to interest in excess of
the amount which may be charged from time to time under applicable law. In the
event that the holder of this Note ever receives, collects or applies as
interest any such excess, then immediately upon becoming aware of such receipt,
collection or application, the holder shall notify Maker of the usurious
overcharge and refund to Maker the amount of any overcharge taken, plus
interest on the overcharge taken at the maximum lawful rate in effect at the
time the usurious interest rate was taken, and make whatever adjustments in
this Note as are necessary to insure that Maker will not be required to pay any
further interest in excess of the amount permitted under applicable law. Maker
shall not institute any action or file any defense based upon the charging or
collecting of usurious interest hereunder unless (i) Maker shall give the
holder written notice of any intent to do so and (ii) the holder shall fail to
comply with the terms
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hereof, by notification and refund to Maker and making necessary adjustments as
aforesaid, within fifteen (15) days after receipt by the holder of such written
notice from Maker. The provisions of this paragraph shall be given precedence
over any other provision contained herein or in any other agreement between the
parties hereto that is in conflict with the provisions of this paragraph.
Maker hereby agrees that any suit, action or proceeding, whether a claim
or counterclaim, brought or instituted by any party on or with respect to this
Note or any other documents executed in connection herewith or which in any way
relates, directly or indirectly, to any event, transaction or occurrence arising
out of or in any way connection with this Note or the dealings of the parties
with respect to this Note, shall be tried only by a court and not a jury.
MAKER, AND HUNTINGTON BY ACCEPTANCE HEREOF, HEREBY EXPRESSLY WAIVE ANY RIGHT TO
A TRIAL BY JURY IN SUCH SUIT, ACTION OR PROCEEDING. Maker acknowledges that
Maker may have a right to a trial by jury in any such suit, action or proceeding
and that Maker hereby is knowingly, intentionally and voluntarily waiving any
such right. Maker further acknowledges and agrees that this paragraph is
material to this Note and that adequate consideration has been given by
Huntington and received by Maker in exchange for the waiver made by Maker
pursuant to this paragraph.
Any notice permitted or required hereunder shall be effective when
received, certified or registered United States mail, postage prepaid, return
receipt requested, at the applicable addresses specified below:
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If to Maker: 6161 East 75th Street
Indianapolis, Indiana 46250
Attention: Russell C. Best
If to Huntington: 201 North Illinois Street
Suite 1800
Indianapolis, Indiana 46204
Attention: D. Brett Bontrager
or at such other addresses within Indiana or Ohio as Maker or Huntington may
from time to time specify by notice hereunder.
In addition to payment of principal, interest and amounts specified under
other provisions of this Note or of the Guaranty, Maker Pledge Agreement or
Guarantor Pledge Agreement, Maker shall:
(1) pay to Huntington a closing fee in the amount of Ten Thousand
and no/100 Dollars ($10,000.00). (Such amount shall be fully earned
upon Huntington's advancement of the proceeds of this Note but shall
not be payable until the earliest of (a) the Maturity Date, (b) the
date upon which all unpaid principal and unpaid accrued interest
hereunder become due and payable or (c) the date upon which all
unpaid principal and unpaid accrued interest hereunder are paid in
full.); and
(2) reimburse Huntington (upon Huntington's request) for all
reasonable attorneys' fees incurred by Huntington in connection with
the negotiation, documentation and closing of the loan evidenced by
this Note.
This Note is negotiable and is payable in lawful money of the United
States of America which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment. The obligations of Maker hereunder
shall be binding upon Maker and its successors, assigns and legal
representatives and shall inure to the benefit of Huntington and Huntington's
successors, assigns and legal representatives.
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This Note is delivered to Huntington in the State of Indiana and is
executed under and shall be governed by and construed in accordance with the
laws of the State of Indiana.
If any provision (or portion thereof) of this Note or the application
thereof to any person or circumstance shall to any extent be invalid or
unenforceable, then the remainder of this Note or the application of such
provision (or portion thereof) to any other person or circumstance shall be
valid and enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, Maker has caused this Note to be executed by its duly
authorized officer, to be effective as of August 25, 1997.
WALTER E.BEST COMPANY, INC.,
an Indiana corporation
By: /s/Russell C. Best
-------------------------------
Printed: Russell C. Best
--------------------------
Title: President
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STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for such County and State, personally
appeared Russell C. Best, the President of Walter E. Best Company, Inc., who,
after having been duly sworn, acknowledged the execution of the foregoing
Promissory Note, as the duly authorized of, and for and on behalf of, such
corporation.
WITNESS my hand and Notarial Seal this 25th day of August, 1997.
/s/ Michelle L. Zukunft
----------------------------
Notary Public
Printed: Michelle L. Zukunft
--------------------
My Commission Expires: County of Residence:
9/21/98 Marion
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EXHIBIT 99.3
CONTINUING GUARANTY
In consideration of credit which THE HUNTINGTON NATIONAL BANK, a national
banking association having its principal banking offices at 201 North Illinois
Street, Suite 1800, Indianapolis, Indiana 46204 (hereinafter referred to as
"Lender"), may concurrently with the execution hereof or from time to time
hereafter extend to WALTER E. BEST COMPANY, INC., an Indiana corporation
(hereinafter referred to as "Borrower"), the undersigned, RUSSELL C. BEST, an
Indiana resident who owns all of Borrower's issued and outstanding voting
capital stock (hereinafter referred to as the "Guarantor"), hereby
unconditionally guarantees to Lender the payment and performance when due,
whether by acceleration or otherwise, without presentment or demand, protest,
notice of dishonor or diligence in collection and with a right of set-off
against the undersigned, together with costs of collection and reasonable
attorneys' fees and without relief from valuation or appraisement laws, of the
principal of and interest on all present and future indebtedness and
obligations of Borrower to Lender arising under, pursuant to or in connection
with that certain Promissory Note (hereinafter, the "Note") to be executed by
Borrower to Lender of even date herewith in the principal amount of One Million
Two Hundred Thirty-Three Thousand Thirty and no/100 Dollars ($1,233,030.00), in
accordance with the terms of such indebtedness and obligations, and all
extensions, renewals, increases or modifications of such indebtedness and
obligations, whether direct or indirect, absolute or contingent and evidenced
by the Note, renewal/extension promissory notes, checks, drafts, letters of
credit, bills, open accounts, warranties, covenants, undertakings,
indemnifications or otherwise (all of the indebtedness, obligations and
Indemnifications guaranteed hereby are hereinafter referred to collectively as
the "Indebtedness").
Guarantor agrees to pay to Lender all amounts payable under this Guaranty,
together with all costs and expenses (including without implied limitation
reasonable attorneys' fees) incurred by Lender in connection with the
collection or enforcement of this Guaranty, without relief from valuation and
appraisement laws.
The obligations of Guarantor hereunder are primary, and Lender may proceed
directly against Guarantor without exercising and/or exhausting any right or
remedy against (a)Eany collateral which may be security for the Indebtedness or
(b) Borrower or any other guarantor or other party primarily or secondarily
liable for the payment of the Indebtedness.
In addition to the obligation of Guarantor to pay and perform when due all
Indebtedness, upon the written demand of Lender after the occurrence of any one
or more of the following events, Guarantor shall immediately pay in full and
satisfy all of the Indebtedness remaining unpaid or unsatisfied at such time,
whether or not such Indebtedness may then be due and payable, together with all
other amounts payable by Guarantor to Lender hereunder:
(a) The dissolution, liquidation or termination of the business
of Borrower;
Page 1 of 7
<PAGE> 2
(b) The assignment by Borrower for the benefit of its creditors;
(c) The appointment of a receiver or a trustee for Borrower or
any of its assets;
(d) The filing of an involuntary petition to adjudicate Borrower
as bankrupt and the failure of Borrower to obtain a dismissal of
such petition within sixty (60) days; or
(e) The filing by Borrower of a voluntary petition to adjudicate
Borrower as bankrupt or for reorganization.
Lender may from time to time without notice to or the consent of Guarantor
release, compromise, extend, increase or otherwise modify or amend any
liability of Borrower or the terms of any agreement, document or instrument
evidencing the Indebtedness or executed in connection with the Indebtedness.
The obligations of Guarantor under this Guaranty shall be absolute and
unconditional under any and all circumstances (including, but without
limitation, any event, occurrence or circumstance, whether or not within the
contemplation of the parties hereto and whether or not affecting the purposes
of or any consideration to the Guarantor in entering into this Guaranty) and
shall remain in full force and effect until the Indebtedness has been paid in
full and all credit arrangements extended by Lender to Borrower have been
terminated. Notwithstanding anything expressed or implied herein to the
contrary or any action or inaction taken by Lender with respect to the
Indebtedness or any documents executed in connection therewith, the obligations
of Guarantor with respect to the Indebtedness shall remain in full force and
effect for as long as Borrower's obligations with respect to the Indebtedness
shall remain in effect. The obligations of Guarantor shall not be affected,
modified or impaired upon the happening from time to time of any event,
including but without limitation any of the following, whether or not with
notice to, or the consent of, Guarantor (notice of and consent to each of the
following is hereby expressly waived by Guarantor):
(a) The waiver, surrender, compromise, alteration, settlement,
discharge, release or termination of any or all of the obligations,
covenants or agreements of Borrower except for the payment and
performance of the Indebtedness in full;
(b) The failure to give notice to Borrower or Guarantor of the
occurrence of an event of default under the terms and provisions of
this Guaranty, the Note or any other documents evidencing the
Indebtedness;
(c) The extension or renewal of time for payment of any of the
Indebtedness or any amount due under this Guaranty or of the time
for performance of any other obligation, covenant or agreement under
or arising out of this Guaranty, the Note or any other documents
evidencing the Indebtedness;
(d) The recision, waiver, modification or amendment (whether
material or otherwise) of any obligation, covenant or agreement set
forth in this Guaranty, the Note or any other documents evidencing
the Indebtedness or any other act or thing or omission or delay to
do any other act or thing which may in any manner or to
Page 2 of 7
<PAGE> 3
any extent vary the risk of Guarantor or would otherwise operate as
a discharge of Guarantor as a matter of law;
(e) The taking, suffering or omitting to take any of the actions
referred to or permitted to be taken by Lender in this Guaranty, the
Note or in any other documents evidencing the Indebtedness;
(f) The failure, omission, delay or lack of diligence on the part
of Lender to enforce, assert or exercise any right, power or remedy
conferred on Lender under this Guaranty, the Note or any other
documents evidencing the Indebtedness;
(g) The voluntary or involuntary liquidation, dissolution, sale
or other disposition of all or substantially all of the assets,
marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, reorganization, arrangement, composition with creditors
or readjustment of, or any similar proceedings affecting Borrower or
the allegation or contest of the validity of this Guaranty, the Note
or any other documents evidencing the Indebtedness;
(h) The release or discharge of Borrower from the performance or
observance of any obligation, covenant or agreement contained in the
Note or in any other documents evidencing the Indebtedness;
(i) Any event or action that would result in the release or
discharge of Guarantor from the performance or observance of any
obligation, covenant or agreement contained in this Guaranty;
(j) The default or failure of Guarantor fully to perform
Guarantor's obligations set forth in this Guaranty;
(k) The invalidity, illegality or unenforceability of the Note or
any other documents evidencing the Indebtedness or any part thereof;
(l) The waiver, surrender, compromise, alteration, settlement,
discharge, release or termination of any or all of the obligations,
covenants or agreements of any other guarantor or other party
primarily or secondarily liable for the payment of the Indebtedness;
(m) The consent by Lender to (i) the assignment, conveyance or
transfer by Borrower of any collateral which may be security for the
Indebtedness or (ii) the granting to third parties of a second
mortgage lien, security interest or collateral assignment in any of
collateral which may secure the Indebtedness; or
(n) Any other cause similar or dissimilar to any of the
foregoing.
Guarantor acknowledges that Guarantor has had an opportunity to review the
Note, all other documentation evidencing the Indebtedness and all other
documentation and information which Guarantor feels is necessary or appropriate
in order to execute and deliver this Guaranty
Page 3 of 7
<PAGE> 4
to Lender. Guarantor warrants and represents to Lender that Guarantor has
knowledge of Borrower's financial condition and affairs and of all other
circumstances which bear upon the risk assumed by Guarantor under this Guaranty.
Guarantor agrees to continue to keep informed thereof while this Guaranty is in
force and further agrees that Lender does not have and will not have any
obligation to investigate the financial condition or affairs of Borrower for the
benefit of Guarantor or to advise Guarantor of any fact respecting, or any
change in, the financial condition or affairs of Borrower or any other
circumstance which may bear upon Guarantor's risk hereunder which comes to the
knowledge of Lender, its directors, officers, employees or agents at any time,
whether or not Lender knows, believes or has reason to know or to believe that
any such fact or change is unknown to Guarantor or might or does materially
increase the risk of Guarantor hereunder.
Guarantor hereby ratifies all representations and warranties made by
Borrower with respect to Guarantor and agrees to be bound by all covenants,
agreements and releases made by Borrower with respect to Guarantor.
Guarantor hereby waives each of the following:
(a) Notice of (i) the acceptance of this Guaranty, (ii) the
existence or creation of all or any of the Indebtedness, (iii) any
extension of credit, advance, loan or similar accommodation by
Lender to Borrower, and (iv) the amount of the Indebtedness which
may exist from time to time;
(b) Any and all presentment, demand, protest or notice of
dishonor, nonpayment or other default with respect to any of the
Indebtedness;
(c) Any claim, right or remedy which Guarantor may now have or
hereafter acquire against Borrower that arises hereunder and/or from
the performance by Guarantor hereunder including, without
limitation, any claim, remedy or right of subrogation,
reimbursement, exoneration, contribution, indemnification, or
participation in any claim, right or remedy of Lender against
Borrower or any security which Lender may have or hereafter acquire,
whether or not such claim, right or remedy arises in equity, under
contract, by statute, under common law or otherwise; unless and
until Lender shall have received payment in full of all of the
Indebtedness;
(d) All diligence in collection or protection of or realization
upon (i) the Indebtedness or any part thereof, (ii) any obligation
hereunder, and (iii)Eany collateral securing the Indebtedness; and
(e) Any rights arising by reason of the incapacity, lack of
authority, death or disability of any other guarantor of the
Indebtedness or any failure by Lender to file or enforce a claim
against the estate of any other guarantor.
Guarantor shall have no right of contribution with respect to any other
guarantor unless and until Lender shall have received payment in full of all of
the Indebtedness. Guarantor shall not pursue collection of any indebtedness of
Borrower to Guarantor or exercise any right or
Page 4 of 7
<PAGE> 5
remedy with respect to any security therefor unless and until Lender shall have
received payment in full of all of the Indebtedness.
If any demand is made at any time upon Lender for the repayment or
recovery of any amount or amounts received by Lender in payment or on account
of any of the Indebtedness and Lender repays all or any part of such amount or
amounts by reason of any judgment, decree or order of any court or
administrative body or by reason of any settlement or compromise of any such
demand, Guarantor will be and remain liable hereunder for the amount or amounts
so repaid or recovered to the same extent as if such amount or amounts had
never been received originally by Lender.
Guarantor hereby subordinates any and all indebtedness of Borrower now or
hereafter owed to Guarantor to all Indebtedness of Borrower to Lender, and
agrees with Lender that Guarantor shall not demand or accept any payment of
principal or interest from Borrower, shall not claim any offset or other
reduction of Guarantor's obligations hereunder because of any such
indebtedness, and shall not take any action to obtain any of the security
described in and encumbered by any instrument securing the Indebtedness of
Borrower to Lender; provided, however, that if Lender so requests, such
indebtedness of Borrower to Guarantor shall be collected, enforced and received
by Guarantor as trustee for Lender and be paid over to Lender on account of the
Indebtedness of Borrower to Lender, but without reducing or effecting in any
manner the liability of Guarantor under the other provisions of this Guaranty.
Any written notice permitted or required hereunder shall be effective when
(a)Emailed by certified United States mail, postage prepaid with return receipt
requested, or (b)Esent by an overnight carrier which provides for a return
receipt, to the applicable address specified below:
If to Guarantor: 6161 E. 75th Street
Indianapolis, IN 46250
If to Lender: 201 North Illinois St., Suite 1800
Indianapolis, IN 46204
Attention: D. Brett Bontrager
or at such other address within the States of Indiana or Ohio as Guarantor or
Lender may from time to time specify for itself by notice hereunder.
This Guaranty is entitled to the benefit and security of a certain Stock
Pledge Agreement, executed by Guarantor to Lender of even date herewith.
This Guaranty shall be binding upon Guarantor and Guarantor's successors,
assigns and legal representatives and shall inure to the benefit of Lender and
its successors, assigns and legal representatives.
This Guaranty is executed and shall be construed in accordance with the
laws of the State of Indiana. If any provision (or portion thereof) of this
Guaranty or the application thereof to any person or circumstance shall to any
extent be invalid or unenforceable, then the remainder of this Guaranty or the
application of such provision (or portion thereof) to any other person or
Page 5 of 7
<PAGE> 6
circumstance shall be valid and enforceable to the fullest extent permitted by
law. Whenever the context requires or permits the singular shall include the
plural, the plural shall include the singular and the masculine, feminine and
neuter shall be freely interchangeable.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty on this 25th day
of August, 1997.
/s/ Russell C. Best
-------------------------------------
Russell C. Best
Page 6 of 7
<PAGE> 7
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State, personally
appeared Russell C. Best, who, after having been duly sworn, acknowledged the
execution of the foregoing Continuing Guaranty.
WITNESS, my hand and Notarial Seal this 25th day of August, 1997.
/s/ Michelle L. Zukunft
-------------------------------------
(Michelle L. Zukunft) Notary Public
My Commission Expires: My County of Residence:
9/21/98 Marion
- ---------------------- --------------------------
Page 7 of 7
<PAGE> 1
EXHIBIT 99.4
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT, executed to be effective as of the 25th day
of August, 1997, by WALTER E. BEST COMPANY, INC., an Indiana corporation
(hereinafter referred to as "Pledgor"), to THE HUNTINGTON NATIONAL BANK, a
national banking association having its principal banking offices at 201 North
Illinois Street, Suite 1800, Indianapolis, Indiana 46204 (hereinafter referred
to as "Lender"), WITNESSES THAT, in order to induce Lender to extend a certain
loan to Pledgor, to be evidenced by a certain Promissory Note of even date
herewith, executed by Pledgor in favor of Lender in the principal amount of One
Million Two Hundred Thirty-Three Thousand Thirty and no/100 Dollars
($1,233,030.00) (such promissory note and any direct or remote extension,
renewal, modification, amendment or replacement of such promissory note is
hereinafter referred to as the "Note"), Pledgor hereby pledges to Lender, and
assigns, transfers and grants to Lender a security interest in, all of
Pledgor's right, title and interest in the following:
(1) Fifty-Four Thousand One Hundred Sixty-One (54,161) shares of
the capital stock of Frank E. Best, Inc., a Washington corporation
qualified to do business in Indiana, which are owned by Pledgor
(hereinafter referred to as the "FEB Stock");
(2) Any and all substitutions for, additions to and replacements
of the FEB Stock (the FEB Stock, and all such substitutions
therefor, additions thereto, replacements therefor and income
therefrom are hereinafter collectively referred to as the
"Securities");
(3) Any and all income accruing from or arising in connection
with any or all of the Securities;
(4) All additional shares of stock, debt obligations or other
securities at any time acquired by Pledgor with respect to the
Securities, including but not limited to all stock dividend shares,
stock split shares, warrants and conversion rights;
(5) All certificates representing the Securities or representing
such additional shares, debt obligations or other securities; and
<PAGE> 2
(6) All proceeds of the Securities and any/all of the foregoing
items (the Securities and such additional shares, obligations,
securities, certificates and proceeds referred to above are
sometimes hereinafter referred to collectively as the "Collateral"),
to secure the payment when due of (i) any and all present and future
indebtedness and obligations of Pledgor to Lender arising under, pursuant to,
with respect to or in connection with the Note, (ii) the agreements and
obligations of Pledgor hereunder, and (iii) all extensions, renewals,
modifications or amendments of the foregoing; whether direct or indirect,
absolute or contingent, and whether evidenced by promissory notes, checks,
drafts, agreements, contracts, letters of credit, bills, overdrafts, open
accounts or otherwise (the indebtedness, obligations, agreements, commitments
and liabilities secured hereby are hereinafter referred to collectively as the
"Indebtedness").
TERMS, CONDITIONS AND AGREEMENTS
1. Rights of Pledgor and Delivery of Certificates. Unless and until a
default shall occur under the terms of this Stock Pledge Agreement, Pledgor
shall be entitled to the income from the Collateral and to exercise any voting
rights arising in connection with the Collateral. Pledgor shall, from time to
time and immediately upon receipt by Pledgor, deliver to Lender any and all
certificates evidencing (and shall from time to time promptly take or cause to
be taken any other action or execute and deliver such further documentation
which Lender may require in order to perfect its security interest in) the
existing Collateral and any Collateral hereafter distributed or issued to
Pledgor, together with stock powers executed in blank.
2. Events of Default. Each of the following-listed events shall
constitute an event of default under this Stock Pledge Agreement:
2
<PAGE> 3
a. the occurrence of an "Event of Default" under the Note (as such
term is defined in the Note); or
b. any sale, assignment or transfer of, or any encumbrance,
attachment, lien or security interest (whether voluntary or involuntary)
upon, any of the Collateral (except for the security interest/pledge
granted to Lender hereunder).
3. Remedies. Upon the occurrence of any default under this Stock Pledge
Agreement, Lender is authorized, at its option and without notice or demand, to
cause the Collateral to be transferred of record to Lender and Lender shall be
entitled to exercise all rights of ownership with respect to the Collateral and
income therefrom pending disposition under paragraph 4 of this Stock Pledge
Agreement.
4. Disposition of Collateral. Upon the occurrence of any default under
this Stock Pledge Agreement, Lender shall have the right, after giving at least
ten (10) days' advance notice in writing to Pledgor, to sell and transfer the
Collateral or any portion thereof at any public or private sale, for cash or
such other consideration as Lender shall in its discretion determine to be
reasonable, all in accordance with the Uniform Commercial Code as adopted and
then in effect in Indiana or in accordance with any other applicable
statute(s). After deducting the expenses of such sale or sales, including
without implied limitation reasonable attorneys' fees, the proceeds therefrom
shall be applied to the payment of the Indebtedness and the surplus, if any,
shall be paid to Pledgor. All rights and remedies of Lender hereunder are
cumulative and are in addition to, but not in limitation of, any rights or
remedies which it may have by law or at equity. No delay or failure by Lender
to exercise any right or remedy which it may have hereunder shall operate as a
waiver of any present or future default or any right or remedy of Lender.
Lender shall not be deemed to have waived any of its rights upon, under
3
<PAGE> 4
or with respect to the Indebtedness or the Collateral unless such waiver be in
writing and signed by Lender. A waiver on any one occasion shall not be
construed as a bar to or waiver of any right on any future occasion. All
rights and remedies of Lender with respect to the Indebtedness and the
Collateral, whether evidenced hereby or by any other document or agreement, may
be exercised singularly or concurrently.
5. Power of Attorney. Pledgor hereby constitutes and appoints Lender,
through any of Lender's officers, as Pledgor's true and lawful
Attorney-In-Fact, with full power of substitution and authority in the place
and stead of Pledgor and in the name of Pledgor or in its own name, from and
after the occurrence of an event of default, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary and desirable to carry out any term(s), or to accomplish any
purpose(s), of this Stock Pledge Agreement. Such power of attorney is coupled
with an interest and shall be irrevocable until the Indebtedness has been fully
and finally paid and performed.
6. Release of Security Interest. At such time as the Indebtedness has
been paid and performed in full, Lender shall release to Pledgor Lender's
security interest in the Collateral then remaining in accordance with Pledgor's
written directions.
7. Representations, Warranties and Covenants as to Ownership. Pledgor
represents, warrants and covenants to Lender that Pledgor is currently the sole
owner, and shall continue to be the sole owner, of the Collateral, free and
clear of all liens, security interests, restrictions, agreements and
encumbrances, except for the security interest granted to Lender under this
Stock Pledge Agreement. Pledgor represents and warrants to Lender that the
shares constituting the Collateral are fully paid and nonassessable. Pledgor
shall pay all taxes and assessments levied
4
<PAGE> 5
against or with respect to the Collateral or the income therefrom. Pledger
represents, warrants and covenants to Lender that there is and shall continue
to be only the above-described one (1) class of capital stock of Frank E. Best,
Inc.
8. Waivers. Pledgor waives demand, notice, protest, notice of acceptance
of this Stock Pledge Agreement, notice of credit extended and all other demands
and notices of any description, except to the extent provided herein. With
respect to the Indebtedness and after an event of default under the terms of
this Stock Pledge Agreement with respect to the Collateral, Pledgor assents to
(a) any extension or postponement of the time of payment or any other
indulgence, (b) any substitution or release of any party or person primarily or
secondarily liable, (c) the acceptance of partial payments thereon and (d) the
settlement, compromising or adjusting of any thereof, all in such manner and at
such time or times as Lender may deem advisable. Lender shall have no duty as
to the protection of the Collateral or any income thereon, or as to the
preservation of the rights against prior parties, or as to the preservation of
any rights pertaining thereto beyond the safe custody thereof. Lender may
exercise its rights with respect to the Collateral without resorting or regard
to other sources of reimbursement for the Indebtedness.
9. Representations and Warranties as to Execution of this Agreement.
Pledgor represents and warrants to Lender that neither Pledgor's execution of
(or the consummation of the transactions contemplated by) this Stock Pledge
Agreement, nor Pledgor's compliance with the terms hereof, conflicts with,
results in a breach of or constitutes a default under any agreement creating or
governing Pledgor, to which Pledgor is a party or by which Pledgor is bound.
5
<PAGE> 6
10. Perfection of Security Interest. Pledgor represents and warrants to
Lender that Pledgor has directed that the Collateral be issued in certificates
in Pledgor's name to be delivered to Pledgor. Pledgor shall cause such
certificates evidencing the ownership of Pledgor of the Collateral to be
delivered to Lender upon the execution hereof. In addition, Pledgor shall
perform, promptly upon request by Lender, such acts and execute and deliver, or
cause to be executed and delivered, to Lender any agreement, certificate, form
or document reasonably required by Lender and which is necessary, appropriate
or prudent to assure perfection, collection or enforcement of the Collateral,
including but not limited to delivering or causing to be delivered to Lender
any certificated securities (as defined in Indiana Code Section 26-1-8-102)
evidencing ownership of the Collateral (such securities to be issued in the
name of Pledgor) together with stock powers for the Collateral, in form and
substance acceptable to Lender, executed in blank by Pledgor. Furthermore,
Pledgor shall cause any financial intermediary that Lender deems appropriate,
promptly upon request by Lender, to issue an acknowledgment and confirmation,
in form and substance acceptable to Lender, acknowledging the security interest
of Lender granted by this Stock Pledge Agreement and setting forth such other
acknowledgements and confirmations as Lender may require and which is
necessary, appropriate or prudent to assure perfection, collection or
enforcement of the Collateral. Pledgor authorizes Lender, at Lender's option,
to provide a copy of this Stock Pledge Agreement to the Intermediary. Pledgor
further authorizes Lender, at the expense of Pledgor, to execute and file
financing statements signed only by Lender in those public offices deemed
necessary or appropriate by Lender to perfect Lender's security interests in
the Collateral.
6
<PAGE> 7
11. Successors and Assigns. The rights under this Stock Pledge Agreement
shall inure to the benefit of Lender and its successors, assigns and legal
representatives and shall be binding upon Pledgor and Pledgor's successors,
assigns and legal representatives.
12. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be sufficient when (a)Emailed by
certified United States mail, postage prepaid with return receipt requested, or
(b)Esent by an overnight carrier which provides for a return receipt, if to
Pledgor at c/o Best Lock Corporation, 6161 East 75th Street, Indianapolis,
Indiana 46250, and if to Lender at 201 North Illinois Street, Suite 1800,
Indianapolis, Indiana 46204, Attention: D. Brett Bontrager, Vice President, or
at such other address within the State of Indiana as may be specified in
written notice hereunder by Lender or Pledgor.
13. General. If at any time or times, by assignment or otherwise, Lender
transfers any portion of the Indebtedness, then such transfer shall carry with
it Lender's powers and rights respectively under this Stock Pledge Agreement
with respect to the Indebtedness and the Collateral and the transferee shall
become vested with such powers and rights whether or not they are specifically
referred to in the transfer. If and to the extent Lender obtains any other
Collateral replacements or substitutions for the Collateral, Lender will
continue to have the rights and powers herein set forth with respect thereto.
This Stock Pledge Agreement and all rights and obligations hereunder including
matters of construction, validity and performance, shall be governed by and
construed in accordance with the Uniform Commercial Code as adopted and then in
effect in Indiana and other applicable laws of the State of Indiana. Whenever
possible, each provision of this Stock Pledge Agreement shall be interpreted in
such a manner as to be
7
<PAGE> 8
effective and valid under applicable law, but if any provision of this Stock
Pledge Agreement shall be prohibited by or invalid under applicable law, such
provisions shall be ineffective only to the extent of such prohibition without
invalidating the remainder of such provision or the remaining provisions of
this Stock Pledge Agreement.
14. Expenses. Pledgor shall pay to Lender on demand any and all expenses,
including reasonable attorney's fees, incurred or paid by Lender in perfecting,
protecting or enforcing its rights upon, under or with respect to the
Indebtedness or the Collateral.
15. Captions. The captions or headings herein have been inserted solely
for the convenience of reference and in no way define or limit the scope,
intent or substance of any provision of this Stock Pledge Agreement. Whenever
the context requires or permits the singular shall include the plural, the
plural shall include the singular and the masculine, feminine and neuter shall
be freely interchangeable.
IN WITNESS WHEREOF, Pledgor has executed this Stock Pledge Agreement on
the day and in the year first above written.
WALTER E. BEST COMPANY, INC.
By: /s/ Russell C. Best
-----------------------------
Printed: Russell C. Best
------------------------
Title: President
--------------------------
8
<PAGE> 9
STATE OF Indiana )
) SS:
COUNTY OF Marion )
Before me, a Notary Public in and for said County and State, personally
appeared Russell C. Best, who, after having been duly sworn,
acknowledged the execution of the foregoing Stock Pledge Agreement as the duly
authorized officer of, and for and on behalf of, Walter E. Best Company, Inc..
WITNESS, my hand and Notarial Seal this 25th day of August, 1997.
/s/ Michelle L. Zukunft
-----------------------------------------
(Michelle L. Zukunft) Notary Public
My Commission Expires: My County of Residence:
9/21/98 Marion
- ---------------------- -----------------------
9
<PAGE> 1
EXHIBIT 99.5
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT, executed to be effective as of the 25th
day of August, 1997, by RUSSELL C. BEST, an Indiana resident (hereinafter
referred to as "Pledgor"), to THE HUNTINGTON NATIONAL BANK, a national banking
association having its principal banking offices at 201 North Illinois Street,
Suite 1800, Indianapolis, Indiana 46204 (hereinafter referred to as "Lender"),
WITNESSES THAT, in order to induce Lender to extend a certain loan to Walter E.
Best Company, Inc., an Indiana corporation ("Borrower"), to be evidenced by a
certain Promissory Note of even date herewith, executed by Borrower in favor of
Lender in the principal amount of One Million Two Hundred Thirty-Three Thousand
Thirty and no/100 Dollars ($1,233,030.00) (such promissory note and any direct
or remote extension, renewal, modification, amendment or replacement of such
promissory note is hereinafter referred to as the "Note"), Pledgor hereby
pledges to Lender, and assigns, transfers and grants to Lender a security
interest in, all of Pledgor's right, title and interest in the following:
(1) One Thousand (1,000) voting shares of the capital stock of
Borrower which are owned by Pledgor (hereinafter referred to as
the "Voting WEB Stock");
(2) Four Hundred Sixty-Five (465) non-voting shares of the capital
stock of Borrower which are owned by Pledgor (hereinafter
referred to as the "Non-Voting WEB Stock");
(3) Any and all substitutions for, additions to and replacements of
the Voting WEB Stock and the Non-Voting WEB Stock (the Voting WEB
Stock and the Non-Voting WEB Stock, and all such substitutions
therefor, additions thereto, replacements therefor and income
therefrom are hereinafter collectively referred to as the
"Securities");
(4) Any and all income accruing from or arising in connection with
any or all of the Securities;
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(5) All additional shares of stock, debt obligations or other
securities at any time acquired by Pledgor with respect to the
Securities, including but not limited to all stock dividend
shares, stock split shares, warrants and conversion rights;
(6) All certificates representing the Securities or representing such
additional shares, debt obligations or other securities; and
(7) All proceeds of the Securities and any/all of the foregoing items
(the Securities and such additional shares, obligations,
securities, certificates and proceeds referred to above are
sometimes hereinafter referred to collectively as the
"Collateral"),
to secure the payment when due of (i) any and all present and future
indebtedness and obligations of Borrower to Lender arising under, pursuant to,
with respect to or in connection with the Note, (ii) any and all present and
future indebtedness and obligation of Pledgor to Lender arising under, pursuant
to, with respect to or in connection with that certain Continuing Guaranty of
even date herewith executed by Pledgor to Lender with respect to the Note, (iii)
the agreements and obligations of Pledgor hereunder, and (iv) all extensions,
renewals, modifications or amendments of the foregoing; whether direct or
indirect, absolute or contingent, and whether evidenced by promissory notes,
checks, drafts, agreements, contracts, letters of credit, bills, overdrafts,
open accounts or otherwise (the indebtedness, obligations, agreements,
commitments and liabilities secured hereby are hereinafter referred to
collectively as the "Indebtedness").
TERMS, CONDITIONS AND AGREEMENTS
1. Rights of Pledgor and Delivery of Certificates. Unless and until
a default shall occur under the terms of this Stock Pledge Agreement, Pledgor
shall be entitled to the income from the Collateral and to exercise any voting
rights arising in connection with the Collateral. Pledgor shall, from time to
time and immediately upon receipt by Pledgor, deliver to Lender any and all
certificates evidencing (and shall from time to time promptly take or cause to
be taken
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any other action or execute and deliver such further documentation which lender
may require in order to perfect its security interest in) the existing
Collateral and any Collateral hereafter distributed or issued to Pledgor,
together with stock powers executed in blank.
2. Events of Default. Each of the following-listed events shall
constitute an event of default under this Stock Pledge Agreement:
a. the occurrence of an "Event of Default" under the Note (as
such term is defined in the Note); or
b. any sale, assignment or transfer of, or any encumbrance,
attachment, lien or security interest (whether voluntary or
involuntary) upon, any of the Collateral (except for the security
interest/pledge granted to Lender hereunder); and
3. Remedies. Upon the occurrence of any default under this Stock
Pledge Agreement, Lender is authorized, at its option and without notice or
demand, to cause the Collateral to be transferred of record to Lender and Lender
shall be entitled to exercise all rights of ownership with respect to the
Collateral and income therefrom pending disposition under paragraph 4 of this
Stock Pledge Agreement.
4. Disposition of Collateral. Upon the occurrence of any default
under this Stock Pledge Agreement, Lender shall have the right, after giving at
least ten (10) days' advance notice in writing to Pledgor, to sell and transfer
the Collateral or any portion thereof at any public or private sale, for cash or
such other consideration as Lender shall in its discretion determine to be
reasonable, all in accordance with the Uniform Commercial Code as adopted and
then in effect in Indiana or in accordance with any other applicable statute(s).
After deducting the expenses of such sale or sales, including without implied
limitation reasonable attorneys' fees, the proceeds therefrom shall be applied
to the payment of the Indebtedness and the surplus, if any, shall be paid to
Pledgor. All rights and remedies of Lender hereunder are
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cumulative and are in addition to, but not in limitation of, any rights or
remedies which it may have by law or at equity. No delay or failure by Lender to
exercise any right or remedy which it may have hereunder shall operate as a
waiver of any present or future default or any right or remedy of Lender. Lender
shall not be deemed to have waived any of its rights upon, under or with respect
to the Indebtedness or the Collateral unless such waiver be in writing and
signed by Lender. A waiver on any one occasion shall not be construed as a bar
to or waiver of any right on any future occasion. All rights and remedies of
Lender with respect to the Indebtedness and the Collateral, whether evidenced
hereby or by any other document or agreement, may be exercised singularly or
concurrently.
5. Power of Attorney. Pledgor hereby constitutes and appoints
Lender, through any of Lender's officers, as Pledgor's true and lawful
Attorney-In-Fact, with full power of substitution and authority in the place and
stead of Pledgor and in the name of Pledgor or in its own name, from and after
the occurrence of an event of default, to take any and all appropriate action
and to execute any and all documents and instruments which may be necessary and
desirable to carry out any term(s), or to accomplish any purpose(s), of this
Stock Pledge Agreement. Such power of attorney is coupled with an interest and
shall be irrevocable until the Indebtedness has been fully and finally paid and
performed.
6. Release of Security Interest. At such time as the Indebtedness
has been paid and performed in full, Lender shall release to Pledgor Lender's
security interest in the Collateral then remaining in accordance with Pledgor's
written directions.
7. Representations, Warranties and Covenants as to Ownership.
Pledgor represents, warrants and covenants to Lender that Pledgor is currently
the sole owner, and shall continue
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to be the sole owner, of the Collateral, free and clear of all liens, security
interests, restrictions, agreements and encumbrances, except for the security
interest granted to Lender under this Stock Pledge Agreement. Pledgor
represents and warrants to Lender that the shares constituting the Collateral
are fully paid and nonassessable. Pledgor shall pay all taxes and assessments
levied against or with respect to the Collateral or the income therefrom.
Pledgor represents, warrants and covenants to Lender that the shares of each
class of shares of stock pledged hereby currently constitute, and shall
hereafter continue to constitute, at least the percentage indicated below of all
issued and outstanding shares for such class:
Minimum
Class Percentage
----- ----------
(a) Voting WEB Stock 100%
(b) Non-Voting WEB Stock 77%
Pledger represents, warrants and covenants to Lender that there are and shall
continue to be only the above-described two (2) classes of capital stock of
Borrower.
8. Waivers. Pledgor waives demand, notice, protest, notice of
acceptance of this Stock Pledge Agreement, notice of credit extended and all
other demands and notices of any description, except to the extent provided
herein. With respect to the Indebtedness and after an event of default under
the terms of this Stock Pledge Agreement with respect to the Collateral, Pledgor
assents to (a) any extension or postponement of the time of payment or any other
indulgence, (b) any substitution or release of any party or person primarily or
secondarily liable, (c) the acceptance of partial payments thereon and (d) the
settlement, compromising or adjusting of any thereof, all in such manner and at
such time or times as Lender may deem advisable. Lender shall have no duty as
to the protection of the Collateral or any income thereon, or as to the
preservation of the rights against prior parties, or as to
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the preservation of any rights pertaining thereto beyond the safe custody
thereof. Lender may exercise its rights with respect to the Collateral without
resorting or regard to other sources of reimbursement for the Indebtedness.
9. Representations and Warranties as to Execution of this Agreement.
Pledgor represents and warrants to Lender that neither Pledgor's execution of
(or the consummation of the transactions contemplated by) this Stock Pledge
Agreement, nor Pledgor's compliance with the terms hereof, conflicts with,
results in a breach of or constitutes a default under any agreement creating or
governing Pledgor, to which Pledgor is a party or by which Pledgor is bound.
10. Perfection of Security Interest. Pledgor represents and warrants
to Lender that Pledgor has directed that the Collateral be issued in
certificatesin Pledgor's name to be delivered to Pledgor. Pledgor shall cause
such certificates evidencing the ownership of Pledgor of the Collateral to be
delivered to Lender upon the execution hereof. In addition, Pledgor shall
perform, promptly upon request by Lender, such acts and execute and deliver, or
cause to be executed and delivered, to Lender any agreement, certificate, form
or document reasonably required by Lender and which is necessary, appropriate or
prudent to assure perfection, collection or enforcement of the Collateral,
including but not limited to delivering or causing to be delivered to Lender any
certificated securities (as defined in Indiana Code Section 26-1-8-102)
evidencing ownership of the Collateral (such securities to be issued in the name
of Pledgor) together with stock powers for the Collateral, in form and substance
acceptable to Lender, executed in blank by Pledgor. Furthermore, Pledgor shall
cause any financial intermediary that
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Lender deems appropriate, promptly upon request by Lender, to issue an
acknowledgment and confirmation, in form and substance acceptable to Lender,
acknowledging the security interest of Lender granted by this Stock Pledge
Agreement and setting forth such other acknowledgements and confirmations as
Lender may require and which is necessary, appropriate or prudent to assure
perfection, collection or enforcement of the Collateral. Pledgor authorizes
Lender, at Lender's option, to provide a copy of this Stock Pledge Agreement to
the Intermediary. Pledgor further authorizes Lender, at the expense of
Pledgor, to execute and file financing statements signed only by Lender in
those public offices deemed necessary or appropriate by Lender to perfect
Lender's security interests in the Collateral.
11. Successors and Assigns. The rights under this Stock Pledge
Agreement shall inure to the benefit of Lender and its successors, assigns and
legal representatives and shall be binding upon Pledgor and Pledgor's heirs,
beneficiaries, successors, assigns and legal and personal representatives.
12. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be sufficient when (a) mailed
by certified United States mail, postage prepaid with return receipt requested,
or (b) sent by an overnight carrier which provides for a return receipt, if to
Pledgor at c/o Best Lock Corporation, 6161 East 75th Street, Indianapolis,
Indiana 46250, and if to Lender at 201 North Illinois Street, Suite 1800,
Indianapolis, Indiana 46204, Attention: D. Brett Bontrager, Vice President, or
at such other address within the State of Indiana as may be specified in written
notice hereunder by Lender or Pledgor.
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13. General. If at any time or times, by assignment or otherwise,
Lender transfers any portion of the Indebtedness, then such transfer shall carry
with it Lender's powers and rights respectively under this Stock Pledge
Agreement with respect to the Indebtedness and the Collateral and the transferee
shall become vested with such powers and rights whether or not they are
specifically referred to in the transfer. If and to the extent Lender obtains
any other Collateral replacements or substitutions for the Collateral, Lender
will continue to have the rights and powers herein set forth with respect
thereto. This Stock Pledge Agreement and all rights and obligations hereunder
including matters of construction, validity and performance, shall be governed
by and construed in accordance with the Uniform Commercial Code as adopted and
then in effect in Indiana and other applicable laws of the State of Indiana.
Whenever possible, each provision of this Stock Pledge Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Stock Pledge Agreement shall be prohibited by or
invalid under applicable law, such provisions shall be ineffective only to the
extent of such prohibition without invalidating the remainder of such provision
or the remaining provisions of this Stock Pledge Agreement.
14. Expenses. Pledgor shall pay to Lender on demand any and all
expenses, including reasonable attorney's fees, incurred or paid by Lender in
perfecting, protecting or enforcing its rights upon, under or with respect to
the Indebtedness or the Collateral.
15. Captions. The captions or headings herein have been inserted
solely for the convenience of reference and in no way define or limit the scope,
intent or substance of any provision of this Stock Pledge Agreement. Whenever
the context requires or permits the
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singular shall include the plural, the plural shall include the singular and the
masculine, feminine and neuter shall be freely interchangeable.
IN WITNESS WHEREOF, Pledgor has executed this Stock Pledge Agreement
on the day and in the year first above written.
/s/ Russell C. Best
--------------------------------
Russell C. Best
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Before me, a Notary Public in and for said County and State,
personally appeared Russell C. Best, who, after having been duly sworn,
acknowledged the execution of the foregoing Stock Pledge Agreement.
WITNESS, my hand and Notarial Seal this 25th day of August, 1997.
/s/ Michelle L. Zukunft
------------------------------------
(Michelle L. Zukunft) Notary Public
My Commission Expires: My County of Residence:
9/21/98 Marion
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