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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities and Exchange Act of 1934
(Amendment No. 3)*
INTEK Diversified Corporation
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(Name of Issuer)
Common Stock, par value $0.01 per share
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(Title of Class of Securities)
458134-10-3
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(CUSIP Number)
Steven L. Wasserman, Kohrman Jackson & Krantz P.L.L.,
1375 East 9th Street, Cleveland, Ohio 44114, 216-736-7220
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
February 1, 1995
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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), check the following box [ ].
Check the following box if a fee is being paid with the 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).
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<TABLE>
SCHEDULE 13D
CUSIP NO. 458134-10-3
<S> <C>
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Roamer One Holdings, Inc.
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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*
N/A
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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
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES 1,493,333
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,493,333
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PERSON 10 SHARED DISPOSITIVE POWER
WITH -0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,493,333
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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)
3.7%
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14 TYPE OF REPORTING PERSON*
CO
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</TABLE>
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CUSIP No. 458134-10-3
The Schedule 13D ("Schedule 13D") of Roamer One Holdings, Inc. ("Roamer")
filed on October 3, 1994 and amended on June 26, 1995 and July 10, 1996
("Amendment No. 2") regarding the Common Stock of INTEK Diversified Corporation
("INTEK"), par value $0.01 per share (the "Shares"), is hereby further amended
as follows:
Item 5. Interest in Securities of the Issuer.
Item 5 of Schedule 13D is amended and supplemented as follows:
(a) According to information provided by INTEK, there were 40,383,702
Shares outstanding on December 31, 1996. Roamer beneficially owns 1,493,333
Shares, or approximately 3.7% of the outstanding Shares.
(b) Nicholas R. Wilson, as a director, the President and the 73.5% owner
of Roamer's outstanding common stock, has the sole power to direct the voting
and disposition of the Shares owned by Roamer.
(c) (i) Since the filing of Amendment No. 2 to Schedule 13D on July 10,
1996, Roamer has sold 766,666 Shares to Simmonds Capital, Ltd. (formerly known
as Simmonds Communications, Ltd.) as follows:
<TABLE>
Approximate Per
Date Number of Shares Share Price
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<S> <C> <C>
August 29, 1996 200,000 $1.50
September 25, 1996 66,667 $1.50
October 30, 1996 133,333 $1.50
November 30, 1996 133,333 $1.50
January 2, 1997 233,333 $1.50
</TABLE>
(ii) On February 1, 1995, Roamer sold 400,000 Shares to Sendek Travel
for an aggregate purchase price of $400,000.
(iii) On October 24, 1996, RFF Family Partnership, L.P. ("RFF") became the
beneficial owner of 100,000 Shares previously owned by Roamer as partial
consideration for a $500,000 loan to Roamer, pursuant to the terms of the
Pledge Agreement, dated as of April 16, 1996, by and between Roamer and RFF
(the "Pledge Agreement"), which agreement is attached hereto as Exhibit 7.H.
(iv) In the past 60 days, Roamer disposed of Shares in the following open
market transactions:
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CUSIP No. 458134-10-3
<TABLE>
Approximate Per
Date Number of Shares Share Price
---- ---------------- ---------------
<S> <C> <C>
December 6, 1996 10,000 $5.94
December 6, 1996 10,000 $6.06
December 10, 1996 10,000 $6.19
December 12, 1996 10,000 $5.81
</TABLE>
(d) Not Applicable.
(e) Roamer ceased to be the beneficial owner of at least 5.0% of the
outstanding Shares on December 3, 1996.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
Item 6 of Schedule 13D is amended and supplemented as follows:
On April 16, 1996, Roamer and RFF entered into the Pledge Agreement
in order to partially secure a Promissory Note of even date therewith (the
"Note") executed by Roamer in favor of RFF in the principal amount of $500,000.
The Pledge Agreement and the Note are attached hereto as Exhibits 7.H and 7.I,
respectively.
Item 7. Material to be Filed as Exhibits.
Item 7 of Schedule 13D is amended and supplemented as follows:
Exhibit 7.H -- Pledge Agreement dated April 16, 1996
Exhibit 7.I -- Promissory Note dated April 16, 1996
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CUSIP No. 458134-10-3
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: January 9, 1997 Roamer One Holdings, Inc.
/s/ Nicholas R. Wilson
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Nicholas R. Wilson, President
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Exhibit Index
Exhibit 7.H -- Pledge Agreement dated April 16, 1996
Exhibit 7.I -- Promissory Note dated April 16, 1996
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Exhibit 7.H
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "Agreement") is entered into as of April
16, 1996 by and between Roamer One Holdings, Inc., a Delaware corporation
("Pledgor"), and RFF Family Partnership, L.P., a California limited partnership
(the "Lender").
WHEREAS, the Lender has agreed to make a loan (the "Loan") to Pledgor
in the sum of $500,000; Pledgor has agreed to repay the Loan pursuant to that
certain Promissory Note (the "Note") of even date;
WHEREAS, Pledgor is the legal and beneficial owner of 100,000 of the
issued and outstanding shares of capital stock of Intek Diversified
Corporation, a Delaware corporation ("'Intek"), evidenced by Certificate No.
______ issued by Intek (the "Pledged Shares");
WHEREAS, it is a condition to the Lender's making the Loan that
Pledgor shall have granted the pledge and security interest contemplated by
this Agreement; and
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and in order to induce the Lender to make the Loan, the parties
hereto agree as follows:
SECTION 1. Grants of Security. Pledgor hereby assigns, pledges
and grants to the Lender a first priority security interest in all of such
Pledgor's right, title and interest in and to the following (the "Collateral")
to secure the Secured Obligations (as defined in Section 2).
(i) the Pledged Shares and the certificates representing the
Pledged Shares and any interest of such Pledgor in the entries on the books of
any financial intermediary pertaining to the Pledged Shares, and all dividends,
cash, warrants, rights, instruments and other property or proceeds from time to
time received, receivable or otherwise distributed in respect of or in exchange
for any or all of the Pledged Shares; and
(ii) all proceeds of the foregoing items described in the
preceding clause (i).
SECTION 2. Secured Obligations. This Agreement secures, and the
Collateral is collateral security for, the prompt payment or performance in
full when due, whether upon demand, at stated maturity, by acceleration or
otherwise, of: (a) all obligations of Pledgor in respect of the Note, whether
for principal, interest (including, without limitation, interest that, but for
the filing of a petition in bankruptcy with respect to Pledgor, would accrue on
such obligations), fees, expenses or otherwise; and (b) all obligations of
Pledgor now or hereafter existing under this Agreement and any and all damages
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and claims (including any third party claims) suffered by Lender which may
result from any breach by Pledgor of, or any misrepresentation contained in
this Agreement or the Note (all such obligations of Pledgor are referred to
herein as the "Secured Obligations").
SECTION 3. Delivery of Pledged Shares. All certificates or
instruments representing or evidencing the Pledged Share. shall be delivered to
and held by or on behalf of the Lender pursuant hereto and shall be in suitable
form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Lender. The Lender shall have the right, at any time in its
discretion and without notice to Pledgor, whether prior to or following the
occurrence of an Event of Default (as defined herein), to transfer to or to
register in the name of the Lender or any of its nominees any or all of the
Pledged Shares. In addition, the Lender shall have the right, subject to the
reasonable approval of Intek's transfer agent, at any time to exchange
certificates or instruments representing or evidencing Pledged Shares for
certificates or instruments of smaller or larger denominations.
SECTION 4. Representations and Warranties. Pledgor represents
and warrants to the Lender that the following statements are true, correct and
complete:
(a) Pledgor is the legal and beneficial owner of the Collateral,
free and clear of any lien or security interest except for the security
interest created by this Agreement. Pledgor shall defend the Collateral
against all claims and demands of all persons at any time claiming any interest
therein adverse to the Lender;
(b) Pledgor has full power, authority, and legal right to pledge the
Collateral pursuant to this Agreement;
(c) All of the Pledged Share have been duly authorized and validly
issued and are fully paid and non-assessable;
(d) The pledge and delivery of the Collateral to the Lender pursuant
to this Agreement creates a valid and perfected first priority security
interest in the Collateral, securing the
payment of the Secured Obligations;
(e) Except as have already been made or obtained, no consent of any
other party (including, without limitation, creditors of Pledgor) and no
consent, authorization, approval, or other action by, and no notice to or
filing with any governmental authority or regulatory body is required either
(i) for the pledge by Pledgor of the Collateral pursuant to this Agreement or
for the execution, delivery or performance of this Agreement by Pledgor or (ii)
for the perfection of or exercise by the Lender of the rights provided for in
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this Agreement or the remedies in respect of the Collateral pursuant to this
Agreement;
(f) The pledge of the Pledged Shares does not violate Regulations G,
T, U or X of the Board of Governors of the Federal Reserve System; and
(g) Except as permitted under this Agreement, the Pledgor at all
times will be the sole beneficial owner of the Pledged Shares.
SECTION 5. Further Assurances. Pledgor agrees that at any time
and from time to time, at the expense of Pledgor, it will promptly execute and
deliver all further instruments and documents, and take all further action,
that may be necessary or desirable, or that the Lender may request, in order to
perfect and protect any security interest granted hereby or to enable the
Lender to exercise and enforce its rights and remedies hereunder with respect
to any Collateral.
SECTION 6. Voting Rights, Dividends, Etc.
(a) So long as no Event of Default shall have occurred and be
continuing:
(i) Pledgor shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Collateral or any part thereof
for any purpose not inconsistent with the terms of this Agreement; provided,
however, that Pledgor shall give the Lender at least five days' written notice
of the manner in which it intends to exercise, or the reasons for refraining
from exercising, any such right;
(ii) Pledgor shall be entitled to receive and retain any and all
dividends, principal and interest paid in respect of the Collateral; provided,
however, that any and all
(A) dividends, principal and interest paid or payable
other than in cash in respect of, and instruments and other property received,
receivable or otherwise distributed in respect of, or in exchange for, any
Collateral,
(B) dividends and other distributions paid or payable in
cash in respect of any Collateral in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in
redemption of, or in exchange for, any Collateral, shall be, and shall be
forthwith delivered to the Lender to hold as, Collateral and shall, if received
by Pledgor, be received in trust for the benefit of the Lender, be segregated
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from the other property or funds of Pledgor, and be forthwith delivered to the
Lender as Collateral in the same form as so received (with any necessary
indorsement); and
(iii) the Lender shall execute and deliver (or cause to be
executed and delivered) to Pledgor all such proxies and other instruments as
Pledgor may reasonably request for the purpose of enabling Pledgor to exercise
the voting and other rights which it is entitled to exercise pursuant to
subsection 6(a)(i) and to receive the dividends, principal or interest payments
which it is authorized to receive and retain pursuant to subsection 6(a)(ii).
(b) Upon the occurrence and during the continuance of an Event of
Default:
(i) Upon written notice from the Lender to Pledgor, all rights
of Pledgor to exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to subsection 6(a)(i) shall cease,
and all such rights shall thereupon become vested in the Lender which shall
thereupon have the sole right to exercise such voting and other consensual
rights.
(ii) All rights of Pledgor to receive the dividends,
distributions, principal and interest payments which it would otherwise be
authorized to receive and retain pursuant to subsection 6(a}(ii) shall cease
and all such rights shall thereupon become vested in the Lender which shall
thereupon have the sole right to receive such dividends, distributions,
principal and interest payments and the right to hold such dividends,
distributions, principal and interest payments as Collateral during the
continuance of such Event of Default. All dividends, interest and interest
payments which are received by Pledgor contrary to the provisions of this
subsection 6(b)(ii) shall be received in trust for the benefit of the Lender,
shall be segregated from other funds of Pledgor and shall be forthwith paid
over to the Lender as Collateral in the same form as so received (with any
necessary indorsement).
(iii) Pledgor shall execute and deliver (or cause to be
executed and delivered) to the Lender all such proxies and other instruments as
the Lender may reasonably request for the purpose of enabling the Lender to
exercise the voting and other rights which it is entitled to exercise pursuant
to subsection 6(b)(i) and to receive the dividends, principal or interest
payments which it is authorized to receive and retain pursuant to subsection
6(b)(ii).
SECTION 7. Transfers and Other Liens; Additional Shares.
(a) Pledgor agrees that it will not (i) sell or otherwise dispose
of, or grant any option with respect to, any collateral, or (ii} create or
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permit to exist any lien or security interest upon or with respect to any
Collateral, except for the security interest under this Agreement.
(b) Pledgor agrees that it will vote to cause Intek not to issue any
additional stock or other securities or in substitution for the Pledged Shares.
SECTION 8. Lender Appointed Attorney-in-Fact. Pledgor hereby
appoints the Lender as Pledgor's attorney-in-fact, with full authority in the
place and stead of Pledgor and in the name of Pledgor or otherwise, from time
to time upon the occurrence and continuation of an Event of Default, in the
Lender's discretion to take any action and to execute any instrument which the
Lender may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation:
(i) to receive, indorse and collect all instruments made
payable to Pledgor representing any dividend, principal of interest payment or
other distribution in respect of the Collateral or any part thereof and to give
full discharge for the same;
(ii) to ask, demand, collect, sue for, recover, compound,
receive and give acquittance and receipts for money due and to become due under
or in respect of any of the Collateral;
(iii) to file any claims or take any action or institute any
proceedings which the Lender may deem necessary or desirable for the collection
of any of the Collateral or otherwise to enforce the rights of the Lender with
respect to any of the Collateral; and
(iv) generally to sell, transfer, pledge, make any agreement
with respect to or otherwise deal with any of the Collateral as fully and
completely as though the Lender were the absolute owner thereof for all
purposes, and to do, at the Lender's option and Pledgor's expense, at any time,
and from time to time, all acts that the Lender deems necessary to protect,
preserve or realize upon the Collateral and the Lender's security interest
therein, in order to effect the intent of this Agreement, all as full and
effectively as Pledgor might do.
This appointment as attorney-in-fact is coupled with an interest and is
irrevocable. In performing its functions and duties under this Agreement, the
Lender has not assumed and shall not be deemed to have assumed any obligation
toward or relationship of agency or trust with or for Pledgor.
SECTION 9. Lender May Perform. If Pledgor fails to perform any
agreement contained herein, the Lender may itself perform, or cause performance
of, such agreement, and the expenses of the Lender incurred in connection
therewith shall be payable by Pledgor under Section l4(b).
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SECTION 10. The Lender's Duties and Liabilities.
(a) The powers conferred on the Lender hereunder are solely to
protect its interest in the Collateral and shall not impose any duty upon it to
exercise any such powers. The Lender shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if the Collateral is accorded treatment substantially equal to that
which the Lender accords its own property, it being understood that the Lender
shall have no responsibility for (i) ascertaining or taking action with respect
to calls, conversions, exchanges, maturities, tenders or other matters relative
to any Collateral, whether or not the Lender has or is deemed to have knowledge
of such matters, or (ii) taking any necessary steps to assert rights against
any parties with respect to any Collateral.
(b) The Lender shall not be liable to Pledgor (i) for any loss or
damage sustained by Pledgor or (ii) for any loss, damage, depreciation or other
diminution in the value of any of the Collateral that may occur as a result of,
in connection with or that is in any way related to (x) any exercise by the
Lender of any right or remedy under this Agreement or (y) any other act or
failure to act of the Lender, except to the extent that the same shall be
determined by a judgment of a court of competent jurisdiction, that is final
and not subject to review on appeal, to be the result of acts or omissions on
the part of the Lender constituting gross negligence or willful misconduct.
SECTION 11. Events of Default; Remedies Upon Defaults; Decisions
Relating to Exercise of Remedies.
11.1 Any one or more of the following events shall constitute an
Event of Default by Pledgor under this Agreement:
(a) Failure to Pay Obligations. If Pledgor or any guarantor of
the Secured Obligations ("Guarantor") fails to pay, no later than thirty (30)
calendar days following the date when due and payable or when declared due and
payable, all or any portion of the Secured Obligations owing to Lender (whether
for principal, interest, taxes, reimbursement of expenses, or otherwise);
(b) Failure to Perform. If Pledgor or any Guarantor fails or
neglects to perform, keep or observe any other term, provision, condition,
covenant, agreement, warranty or representation contained in this Agreement,
the Note, the Option Agreement or any other present or future agreement between
Pledgor and Lender;
(c) Inaccurate Information. If any material representation,
statement, report, or certificate made or delivered by Pledgor, or any of its
officers, employees or agents, or any Guarantor to Lender, is not true and
correct, or if any warranty or representation to Lender is withdrawn by Pledgor
or by any officer or director of Pledgor or any Guarantor;
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(d) Third Party Claim. If any or a material portion of
Pledgor's or any Guarantor's assets are attached, seized, subjected to a writ
or distress warrant, or are levied upon, or come into the possession of any
Judicial Officer or Assignee (as defined below), and such attachment, seizure,
writ and/or levy is not released within thirty (30) days;
(e) Acceleration of Indebtedness. If there is a default in any
material agreement to which Pledgor or any Guarantor is a party with third
parties resulting in a right by such third parties to accelerate the maturity
of Pledgor's or such Guarantor's indebtedness, and such default is not cured
prior to such acceleration;
(f) Impairment. If there is a material impairment of the
prospect of repayment of all or any portion of the Secured Obligations or a
material impairment of the value or priority of Lender's security interests in
the Collateral;
(g) Voluntary Insolvency Proceeding. If Pledgor or any
Guarantor commences any Insolvency Proceeding (as defined below);
(h) Involuntary Insolvency Proceeding. If any Insolvency
Proceeding is commenced against Pledgor or any Guarantor and which is not
dismissed within sixty (60) days of the date of filing;
(i) Interruption of Business. If Pledgor or any Guarantor is
enjoined, restrained or in any way prevented by court order from continuing to
conduct all or any material part of its respective business affairs;
(j) Governmental Lien. If a notice of lien, levy or assessment
is filed of record with respect to any or all of Pledgor's or any Guarantor's
assets by the United States Government, or any department, agency or
instrumentality thereof, or by any state, county, municipal or other
governmental agency, or if any tax or debt owing at any time hereafter to any
one or more of such entities becomes a lien, whether choate or otherwise, upon
any or all of the Pledgor's or any Guarantor's assets and the same is not paid
on the payment date thereof, and such lien, levy or assessment is not released
or payment made in full within thirty (30) days;
(k) Liens. If a judgment or other claim becomes a lien or
encumbrance upon all or a material portion of Pledgor's or any Guarantor's
assets, and such lien or encumbrance is not released within thirty (30) days;
(l) Payment of Taxes or Filing Tax Returns. If Pledgor or any
Guarantor fails to make any payment on any sales, use, income, property or
other taxes no later than the fifteenth (15th) calendar day following the date
such taxes are due and payable, or Pledgor or any Guarantor fails to file any
tax return on or before the date due; or
(m) Impairment of Guaranty. If any Guarantor dies, or revokes
or terminates his guaranty, or defaults in the payment or performance of any
obligations of Guarantor owing to Secured Party.
11.2 As use herein:
(a) The term "Insolvency Proceeding" means and includes any
proceeding commenced by or against any person or entity under any provision of
the federal Bankruptcy Code, as amended, or under any other bankruptcy or
insolvency law, including, but not limited to, assignments for the benefit of
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creditors, formal or informal moratoriums, compositions or extensions generally
with its creditors.
(b) The term "Judicial Officer or Assignee" means and includes
any trustee, receiver, controller, custodian, assignee for the benefit of
creditors or any other person or entity having powers or duties like or similar
to the powers and duties of a trustee, receiver, controller, custodian or
assignee for the benefit of creditors.
11.3 If an Event of Default shall have occurred and be continuing:
(a) the Lender may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies
of a secured party on default under the Uniform Commercial Code (the "UCC") in
effect in the State of California at that time;
(b) the Lender may transfer all or any part of the Collateral
into the Lender's name or the name of its nominee or nominees;
(c) the Lender may give all consents, waivers and ratifications
in respect of the Collateral and otherwise act with respect thereto as though
it were a party thereto or outright owner thereof;
(d) the Lender may settle, adjust, compromise and arrange all
accounts, controversies, questions, claims and demands whatsoever in relation
to all or any part of the Collateral;
(e) the Lender may, in respect of the Collateral, execute all
such contracts, agreements, deeds, documents and instruments; bring, defend and
abandon all such actions, suites and proceedings; and take all actions in
relation to all or any part of the Collateral as the Lender in its absolute
discretion may determine;
(f) the Lender may without notice (except as specified below)
sell the Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange, broker's board or at any of the Lender's offices
or elsewhere, for cash, on credit or for future delivery, at such time or times
and at such price or prices and upon such other terms as the Lender may deem
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commercially reasonable, irrespective of the impact of any such sales on the
market price of the Collateral. To the extent permitted by law, the Lender may
be the purchaser of any or all of the Collateral at any such public or private
sale. Pledgor agrees that, to the extent notice of sale shall be required by
law, at least ten days'' notice to Pledgor of the time and place of any public
sale or the time after which a private sale is to be made shall constitute
reasonable notification. The Lender shall not be obligated to make any sale of
the Collateral regardless of notice of sale having been given. The Lender may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
(i) Pledgor recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as from time to time amended (the
"Securities Act"), and applicable state securities laws, the Lender may be
compelled, with respect to any sale of all or any part of the Collateral
conducted without prior registration or qualification of such Collateral under
the Securities Act and/or such state securities laws, to limit purchasers to
those who will agree, among other things, to acquire the Collateral for their
own account, for investment and not with a view to the distribution or resale
thereof. Pledgor acknowledges that any such private sales may be at prices and
on terms less favorable to the Lender than those obtainable through a public
sale without such restrictions (including, without limitation, a public
offering made pursuant to a registration statement under the Securities Act
and, notwithstanding such circumstances, Pledgor agrees that any such private
sale shall be deemed to have been made in a commercially reasonable manner and
that the Lender shall have no obligation to engage in public sales and no
obligation to delay the sale of any Collateral for the period of time necessary
to permit the issuer thereof to register it for a form of public sale requiring
registration under the Securities Act or under applicable state securities
laws.
(ii) If the Lender determines to exercise its rights to
sell any or all of the Collateral, upon written request, Pledgor shall and
shall cause Intek from time to time to furnish to the Lender all such
information as the Lender may request in order to determine the number of
shares and other instruments included in the Collateral which may be sold by
the Lender as exempt transactions under the Securities Act and the rules of the
Securities and Exchange Commission thereunder, as the same are from time to
time in effect;
(g) The Lender may appoint managers, sub-agents, officers and
servants for any of the purposes mentioned in the foregoing provisions of this
Section 11 and to dismiss the same, all as the Lender in its absolute
discretion may determine; and
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<PAGE> 10
(h) The Lender may generally take all such other action as the
Lender in its absolute discretion may determine to be incidental or conductive
to any of the matters or powers mentioned in the foregoing provisions of this
Section 11 and which the Lender may or can do lawfully.
SECTION 12. Remedies Cumulative. Each and every right, power and
remedy hereby specifically given to the Lender shall be in addition to every
other right, power and remedy
specifically given under this Agreement, the Note or the Option Agreement or
now or hereafter existing at law or in equity, or by statute, and each and
every right, power and remedy whether specifically herein given or otherwise
existing may be exercised from time to time or simultaneously and as often and
in such order as may be deemed expedient by the Lender. All such rights, powers
and remedies shall be cumulative, and the exercise or the beginning of exercise
of one shall not be deemed a waiver of the right to exercise of any other or
others. No delay or omission of the Lender in the exercise of any such right,
power or remedy and no renewal or extension of any of the Secured Obligations
shall impair any such right, power or remedy or shall be construed to be a
waiver of any default or Event of Default or an acquiescence therein.
SECTION 13. Application of Proceeds. After and during the
continuance of an Event of Default, any cash held by the Lender as Collateral
and all cash proceeds received by the Lender
(all such cash being "Proceeds") in respect of any sale of, collection from, or
other realization upon all or any part of the Collateral pursuant to the
exercise by the Lender of its remedies as a secured creditor as provided in
Section 11 of this Agreement shall promptly be applied by the Lender from time
to time as follows:
First: To the payment of the costs and expenses of such sale,
collection or other realization, and all expenses, liabilities and advances
made or incurred by the Lender in connection therewith, in accordance with
Section 14(b);
SECOND: After payment in full of the amounts specified in the
preceding subparagraph, to the payment of the Secured Obligations to the
Lender; and
THIRD: After payment in full of the amounts specified in the
preceding subparagraphs, and any other amount required by any provision of law,
to Pledgor, or its successors or assigns, or to whomever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may
direct, of any surplus then remaining from such Proceeds.
All applications of Proceeds to the Secured Obligations shall be applied to the
payment of interest before application to the payment of principal. If any
portion of the Secured Obligations shall remain unpaid following application of
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<PAGE> 11
the Proceeds, Pledgor shall remain liable therefor.
SECTION 14. Indemnity and Expenses.
(a) Pledgor agrees to indemnify the Lender from and against any and
all claims, losses and liabilities growing out of or resulting from Pledgor's
breach of any term hereof or the Option Agreement or any misrepresentation made
hereunder, under the Option Agreement or in connection with this Agreement
(including, without limitation, enforcement of this Agreement), except claims,
losses or liabilities resulting from the Lender's gross negligence or willful
misconduct. This provision shall remain in effect following payment of the
Secured Obligations.
(b) Pledgor will upon demand pay to the Lender the amount of any and
all of the Lender's reasonable out-of-pocket expenses, including fees and
disbursements of its counsel, that the Lender may incur in connection with (i)
the administration of this Agreement, (ii) the custody, preservation, use or
operation of, or the sale of, collection from, or other realization upon, any
of the Collateral, (iii) the exercise or enforcement of any of the rights of
the Lender hereunder or (iv) the failure by Pledgor to perform or observe any
of the provisions hereof.
SECTION 15. Amendments, Etc. No amendment, modification,
termination or waiver of any provision of this Agreement or consent to any
departure by Pledgor herefrom shall in any event be effective without the
written concurrence of the Lender. Any waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
SECTION 16. Addresses for Notices. Any communications between the
parties hereto or notices or requests provided herein to be given may be given
by mailing the same, postage prepaid, or by telex, facsimile transmission or
cable to each party at its address set forth on the signature pages hereof or
to such other addresses as each party may in writing hereafter indicate. Any
notice, request or demand to or upon the Lender or Pledgor shall not be
effective until received (provided, in the case of telex, facsimile
transmission or cable, that receipt is confirmed).
SECTION 17. Effect of Disposition of Collateral. Any sale of, or
the grant of options to purchase, or any other realization upon, any Collateral
shall operate to divert all right, title, interest, claim and demand, either at
law or in equity, of Pledgor therein and thereto, and shall be a perpetual bar
both at law and in equity against Pledgor and against any and all persona
claiming or attempting to claim the collateral so sold, optioned or realized
upon, or any part thereof, from, through and under Pledgor. Any such
transaction will be subject to the Option Agreement.
<PAGE>
<PAGE> 12
SECTION 16. Continuing Security Interest; Transfer of Secured
Obligations; Termination. This Agreement shall create a continuing security
interest in the Collateral and shall:
(i) remain in full force and effect until the indefeasible
payment and performance in full of the Secured Obligations;
(ii) be binding upon Pledgor, its successors and assigns; and
(iii) inure, together with the rights and remedies of the
Lender, to the benefit of the Lender and its successors, transferees and
assigns.
Without limiting the generality of the foregoing clause (iii), the Lender may
assign or otherwise transfer all or a portion of its interests and rights under
the Note to any other person or entity, and such other person or entity shall
thereupon become vested with all the benefits in respect thereof granted to the
Lender herein or otherwise. Upon the date set forth in subsection 18(i),
Pledgor shall be entitled to the return, upon its request and at its expense,
of such of the Collateral as shall not have been sold or otherwise applied
pursuant to the terms hereof.
SECTION 19. Headings. Section and subsection headings in this
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Agreement or be given any substantive effect.
SECTION 20. Severability. In case any provision in or obligation
under this Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
SECTION 21. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original and all of
which shall constitute one and the same.
SECTION 22. Governing Law; Terms. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF PLEDGOR AND THE LENDER AND ALL OTHER ASPECTS HEREOF SHALL BE
DEEMED TO BE MADE UNDER, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, EXCEPT AS
REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE
VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES
HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF
A JURISDICTION OTHER THAN THE STATE OF CALIFORNIA. Unless otherwise defined
herein or in the Note, terms defined in Divisions 8 and 9 of the UCC are used
herein as therein defined.
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<PAGE> 13
SECTION 23. Interpretation. Whatever in this Agreement the
context may require, the masculine gender shall be deemed to include the
feminine and/or neuter, and the singular to include the plural.
SECTION 24. Consent to Jurisdictional and Service of Process;
Waiver of Trial by Jury. Pledgor hereby irrevocably submits to the
jurisdiction of any California State or Federal court sitting in the Central
District of California in any action or proceeding arising out of or relating
to this Agreement, and Pledgor hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such
California State or Federal court. Pledgor hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient forum
to the maintenance of such action or proceeding. Pledgor agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Section 24 shall affect the right of the
lender to serve legal process in any other manner permitted by law or affect
the right of the Lender to bring any action or proceeding against Pledgor or
its property in the courts of any other jurisdiction. IN ANY LITIGATION
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE NOTE, EACH PARTY HERETO
WAIVES TRIAL BY JURY.
SECTION 25. Security Interest Absolute. All rights of the Lender
and security interests hereunder, and all obligations of Pledgor hereunder,
shall be absolute and unconditional irrespective of:
(I) any lack of validity or enforceability of the Note, the
Option Agreement, or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Note or any
other related document;
(iii) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to any
departures from any guaranty for all or any of the Secured Obligations; or
(iv) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Pledgor.
SECTION 26. Pledgor Remains Liable. Anything herein to the
contrary notwithstanding, (i) Pledgor shall remain liable under the contracts
and agreements included in or relating to the Collateral to the extent set
forth therein to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed, (ii) the exercise by
the Lender of any of the rights hereunder shall not release Pledgor from any of
<PAGE>
<PAGE> 14
its duties or obligations under the contracts and agreements included in or
relating to the Collateral and (iii) the Lender shall not have any obligation
or liability under the contracts and agreements included in or relating to the
Collateral by reason of this Agreement, nor shall the Lender be obligated to
perform any of the obligations or duties of Pledgor thereunder or to take any
action to collect or enforce any claim for payment assigned hereunder.
SECTION 27. Facsimile Execution. Execution of this Agreement
shall be deemed binding upon the party executing this Agreement notwithstanding
that delivery of the executed document may be by facsimile transmission. Any
party shall be entitled to rely on a faxed execution copy of this Agreement
with the same force and effect as if an originally inked execution copy were
delivered. Inked original documents shall be delivered to the other parties by
Federal Express mail within one business day of the facsimile transmission.
<PAGE>
<PAGE> 15
IN WITNESS WHEREOF, Pledgor and the Lender have caused this Agreement
to be duly executed and delivered as of the date first above written.
RFF Family Partnership, L.P., a
California limited partnership
By R.F.F., Inc., a California
Corporation, general partner
By: /s/ Robert F. Freedman
----------------------------
Its: President
Notice Address for Lender:
11575 Dona Dorotea
Studio City, California 91604
with a copy to:
Jeffer, Mangels, Butler & Marmaro
2121 Avenue of the Stars
Tenth Floor
Los Angeles, California 90067
Attn: William M. Weintraub, Esq.
Roamer One Holdings, Inc., a
Delaware corporation
By: /s/ Steven L. Wasserman
------------------------------
Its: Secretary
Notice Address:
c/o Kohrman Jackson & Krantz
1375 East Ninth Street
One Cleveland Center - 20th Floor
Cleveland, Ohio 44114
<PAGE>
EXHIBIT 7.I
PROMISSORY NOTE
April 16, 1996 $500,000
FOR VALUE RECEIVED, the undersigned promises to pay to the order of RFF
Family Partnership, L.P., a California limited partnership ("Lender"), at 11575
Dona Dorotea, Studio City, California 91604, or at such other address as the
holder of this Note shall from time to time designate, the principal sum of
Five Hundred Thousand Dollars ($500,000), together with the interest thereon
until paid in full at the rate of twelve percent (12%) per annum.
All unpaid principal and accrued interest shall be due and payable on
September 24, 1996. Any unpaid principal and interest not paid when due shall
bear interest thereon until paid in full at the rate of fifteen percent (15%)
per annum.
Each payment shall be credited first to interest, if any then due, and the
remainder to principal. Principal and interest shall be payable in lawful
money of the United States of America. The undersigned shall have the right to
prepay this Note.
This Note is secured by that certain Pledge Agreement (the "Pledge
Agreement"), of even date, by the undersigned in favor of Lender.
Upon the default in the payment or performance of any of the terms hereof
or the occurrence of any Event of Default under the Pledge Agreement, all
unpaid principal and accrued interest shall become immediately due and payable
without demand.
The undersigned agrees to pay all costs and expenses (including without
limitation attorneys' fees) incurred by the holder of this Note in connection
with or related to this Note or the enforcement thereof, whether or not suit be
brought. IN ANY LITIGATION ARISING OUT OF OR RELATING TO THIS NOTE, IN WHICH
ANY HOLDER OF THIS NOTE IS AN ADVERSE PARTY, THE UNDERSIGNED HEREBY WAIVES
TRIAL BY JURY. the undersigned hereby further waives presentment, demand for
payment, notice of dishonor, notice of nonpayment, protest, notice of protest,
and any and all other notices and demand in connection with the delivery,
acceptance, performance, default, or enforcement of this Note. To the fullest
extent permitted by law, the undersigned waives the statute of limitations in
any action brought by the holder in connection with this Note.
No failure to exercise, and no delay in exercising, any right, power or
remedy hereunder or under any document delivered to the holder hereof shall
impair any right, power or remedy which the holder may have. The rights and
<PAGE>
<PAGE> 2
remedies of the holder hereof are cumulative and not exclusive of any rights or
remedies which the holder would otherwise have.
No waiver or modification of any of the terms or provisions of this Note
shall be valid or binding unless set forth in writing signed by the holder of
this Note and the undersigned, and then only to the extent therein specifically
set forth.
If this note is signed by more than one person, all obligations, covenants
and waivers herein are the joint and several obligations, covenants and waivers
of each of the undersigned.
If any one of the provisions of this Note shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
This Note and all transactions hereunder and/or evidenced hereby shall be
governed by, construed under and enforced in accordance with the laws of the
State of California. the undersigned hereby: (i) agrees that all actions or
proceedings relating directly or indirectly hereto shall be litigated in courts
located within the State of California, and that, at the option of the holder,
the exclusive venue therefor shall be Los Angeles County; (ii) consents to the
jurisdiction and venue of any such court and consents to the service of process
in any such action or proceeding by personal delivery, by certified or
registered mail directed to the undersigned at the address set forth below, or
by any other method permitted by law; and (iii) waives any and all rights the
undersigned may have to object to the jurisdiction of any such court, or to
transfer or change the venue of any such action or proceeding.
ROAMER ONE HOLDINGS, INC.,
a Delaware corporation
By: /s/ Steven L. Wasserman
--------------------------
Its: Secretary
Address: c/o Kohrman Jackson & Krantz
1375 East Ninth Street
One Cleveland Center - 20th Floor
Cleveland, Ohio 44114
