UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[ x ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended: June 30, 1997.
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 0-18083
Williams Controls, Inc.
----------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 84-1099587
- ------------------------------- -----------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
14100 SW 72nd Avenue
Portland, Oregon 97224
- -------------------------------------- ------------
(Address of principal executive office) (zip code)
Registrant's telephone number, including area code:
(503) 684-8600
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
The number of shares outstanding of the registrant's common stock as of August
14, 1997 were 17,782,040.
<PAGE>
Williams Controls, Inc.
Index
Page
Number
Part I. Financial Information
Item 1. Financial Statements
Consolidated Balance Sheets, June 30, 1997 (unaudited)
and September 30, 1996 1
Unaudited Consolidated Statement of Stockholders' Equity,
nine months ended June 30, 1997 2
Unaudited Consolidated Statements of Operations,
three and nine months ended June 30, 1997 and 1996 3
Unaudited Consolidated Statements of Cash Flows,
nine months ended June 30, 1997 and 1996 4
Notes to Unaudited Consolidated Financial Statements 5-10
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of Operations 11-14
Part II. Other Information
Item 4. Submission of Matters to a Vote of Security Holders 15
Item 5. Other Information 15
Item 6. Exhibits and Reports on Form 8-K 15
Signature Page 16
<PAGE>
Consolidated Balance Sheets
(Dollars in thousands, except per share amounts) Williams Controls, Inc.
June 30, September 30,
1997 1996
---------- -------------
(unaudited)
Assets
Current Assets:
Cash $ 3,091 $ 1,379
Accounts receivable, net 12,234 13,103
Inventories 14,879 15,288
Other 1,545 1,885
Total current assets 31,749 31,655
------ ------
Investment in affiliate 739 943
Property, plant and equipment 25,968 24,955
Less accumulated depreciation and amortization 6,376 5,154
------ ------
19,592 19,801
------ ------
Other assets 1,862 1,379
------ ------
$53,942 $53,778
====== ======
Liabilities and Stockholders' Equity
Current Liabilities:
Revolving line of credit $ - $21,000
Current portion of long-term debt
and capital leases 258 212
Estimated net loss from discontinued operations 1,171 -
Accounts payable and accrued expenses 8,831 8,388
------ ------
Total current liabilities 10,260 29,600
------ ------
Long-term debt 19,542 2,734
Finance and capital lease obligations 4,524 48
Other liabilities 2,951 2,673
Commitments and contingencies - -
Minority interest in consolidated subsidiaries 597 713
Stockholders' equity:
Preferred stock of $.01 par value, 50,000,000
shares authorized - -
Common stock of $.01 par value, 50,000,000
shares authorized, 17,912,240 and
17,869,987 shares issued 179 179
Additional paid-in capital 9,777 9,671
Retained earnings 7,229 9,439
Unearned ESOP shares (511) (511)
Treasury stock (130,200 and 195,200 shares) (378) (540)
Pension liability adjustment (228) (228)
------- -------
16,068 18,010
------ ------
$53,942 $53,778
====== ======
The accompanying notes are an integral part of these statements.
1
<PAGE>
Unaudited Consolidated Statement of Stockholders' Equity
(Dollars in thousands, except per share amounts) Williams Controls, Inc.
<TABLE>
<CAPTION>
Number of Additional Pension Unearned
Shares Common Paid-in Retained Liability ESOP Treasury Stockholders'
Issued Stock Capital Earnings Adjustment Shares Shares Equity
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance, September 30, 1996 17,869,987 $ 179 $9,671 $9,439 $(228) $(511) $ (540) $18,010
Issuance of contingent shares
for acquisition 42,253 - 106 - - - - 106
Issuance of shares from treasury
for acquisition advisory services - - - - - - 162 162
Net loss - - - (2,210) - - - (2,210)
---------- ------ ------- -------- ------ ------- ------- -------
Balance, June 30, 1997 17,912,240 $ 179 $9,777 $7,229 $(228) $(511) $ (378) $16,068
========== ====== ======= ====== ====== ======= ======= =======
</TABLE>
The accompanying notes are an integral part of these statements.
2
<PAGE>
Unaudited Consolidated Statements of Operations
(Dollars in thousands, except per share amounts) Williams Controls, Inc.
<TABLE>
<CAPTION>
Three months Three months Nine months Nine months
ended ended ended ended
June 30, 1997 June 30, 1996 June 30, 1997 June 30, 1996
---------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $ 14,536 $13,474 $42,305 $38,116
Cost of sales 11,470 9,695 32,286 26,921
------- ------- ------- -------
Gross margin 3,066 3,779 10,019 11,195
------- ------- ------- -------
Operating expenses:
Research and development 512 444 1,472 1,409
Selling 816 652 2,470 1,680
Administrative 1,064 922 3,001 2,397
------- ------- ------- -------
2,392 2,018 6,943 5,486
------- ------- ------- -------
Earnings from continuing operations 674 1,761 3,076 5,709
Other (income) expense:
Interest expense 477 433 1,437 1,154
Equity interest in loss of affiliate 25 - 204 75
------- ------- ------- -------
502 433 1,641 1,229
------- ------- ------- -------
Earnings from continuing operations
before income taxes 172 1,328 1,435 4,480
Income taxes 78 548 589 1,760
------- ------- ------- -------
Earnings from continuing operations
before minority interest 94 780 846 2,720
Minority interest in net (earnings) loss
of consolidated subsidiaries 85 (50) 116 (90)
------- ------- ------- -------
Earnings from continuing operations 179 730 962 2,630
Discontinued operations:
Loss from operations of discontinued
Automotive Accessories segment (306) (1,824) (1,207) (2,220)
Loss on disposal of Automotive Accessories
segment, including provision of $1,171 for
operating losses during phase-out period (1,965) - (1,965) -
------- ------- ------ -------
Loss from discontinued operations $(2,271) $(1,824) $(3,172) (2,220)
------- ------- ------ ------
Net earnings (loss) $(2,092) $(1,094) $(2,210) $ 410
====== ====== ====== ======
Earnings per common
share from continuing operations $ .01 $ .04 $ .05 $ .15
Loss per common
share from discontinued operations $ ( .13) $ (.10) $ ( .17) $ (.13)
------- ------- ------ ------
Loss per common share $ ( .12) $ (.06) $ ( .12) $ .02
======= ======= ====== ======
</TABLE>
The accompanying notes are an integral part of these statements.
3
<PAGE>
Unaudited Consolidated Statements of Cash Flows
(Dollars in thousands) Williams Controls, Inc.
Nine months Nine months
ended ended
June 30, 1997 June 30, 1996
------------- -------------
Cash flows from operations:
Net earnings $ (2,210) $ 410
Non-cash adjustments to net earnings:
Provision for loss on disposal of
discontinued operations 1,171 -
Depreciation and amortization 1,303 1,655
Restructuring charge - 2,250
Minority interest in earnings (loss)
of consolidated subsidiaries (116) 90
Equity interest in loss of affiliate 204 75
Changes in working capital items net
of the effects of acquisitions:
Receivables, net 869 (2,861)
Inventories 409 (4,817)
Other 290 (329)
Accounts payable and accrued expenses 820 461
------ -------
Net cash provided by (used for) operations 2,740 (3,066)
------ -------
Cash flows from investing:
Payment for acquisitions - (1,200)
Payment for equipment (1,013) (1,139)
------- -------
Net cash used for investing (1,013) (2,339)
------- -------
Cash flows from financing:
Net borrowings (repayments) under revolving loan (4,129) 5,759
Net proceeds from sale/leaseback 4,274 -
Payments of long-term debt and capital leases (160) (75)
Repurchase of common stock - (540)
Proceeds from stock issuance - 235
------- ------
Net cash provided by financing (15) 5,379
------- ------
Net increase/(decrease) in cash 1,712 (26)
Cash at beginning of period 1,379 1,653
------- -------
Cash at end of period $ 3,091 $ 1,627
======= =======
Cash paid for:
Interest $ 1,567 $ 1,500
======= =======
Taxes paid (net refund) $ (483) $ 1,000
======= =======
The accompanying notes are an integral part of these statements.
4
<PAGE>
Notes to Unaudited Consolidated Financial Statements
Three Months ended June 30, 1997 and 1996
(Dollars in thousands, except per share amounts) Williams Controls, Inc.
1. Organization
The interim consolidated financial statements include the accounts of the
Company and its wholly-owned subsidiaries, Williams Controls Industries,
Inc. ("Williams"); Kenco Williams, Inc. ("Kenco"); NESC Williams, Inc.
("NESC"); Williams Technologies, Inc. ("WTI"); Williams World Trade, Inc.
("WWT"); Williams Automotive, Inc.; Aptek Williams, Inc. ("Aptek"); Agrotec
Williams, Inc. ("Agrotec"); Techwood Williams, Inc. ("Techwood"); Premier
Plastic Technologies, Inc. ("PPT"); GeoFocus, Inc. ("GeoFocus"); and the
Company's 80% owned subsidiaries, Hardee Williams, Inc. ("Hardee") and
Waccamaw Wheel Williams, Inc. ("Waccamaw"). All significant intercompany
accounts and transactions have been eliminated. 2. The Interim Consolidated
Financial Statements
2. The interim unaudited consolidated financial statements
The interim unaudited consolidated financial statements have been prepared
by the Company and, in the opinion of management, reflect all material
adjustments that are necessary to a fair statement of results for the
interim periods presented. Such adjustments consisted only of normal
recurring items. Certain information and footnote disclosure made in the
last annual report on Form 10-K have been condensed or omitted for the
interim consolidated statements. The interim financial statements should be
read in conjunction with the consolidated financial statements and notes
thereto in the Company's annual report on Form 10-K. The interim period
results are not necessarily indicative of results that may be expected for
any other interim period or for the full year. Certain costs are estimated
for the full year and allocated to interim periods based on activity
associated with the interim period. Accordingly, such costs are subject to
year-end adjustment.
3. Earnings (loss) per Share
Earnings per share are computed based on the weighted average number of
common shares and common stock equivalent shares outstanding during the
period. Options and warrants are considered common stock equivalents for
the purposes of this computation. The weighted average number of common
shares used in computation of earnings per share was 18,179,000 and
18,089,000 for the three and nine months ended June 30, 1997, respectively,
and 17,600,000 for the three and nine months ended June 30, 1996. Common
stock equivalents, which are antidilutive, are not included in the earnings
per share calculation.
5
<PAGE>
Notes to Unaudited Consolidated Financial Statements
Three Months ended June 30, 1997 and 1996
(Dollars in thousands, except per share amounts) Williams Controls, Inc.
4. Inventories
June 30, September 30,
1997 1996
Raw material $ 8,535 $ 7,243
Work-in-process 1,032 1,349
Finished goods 5,312 6,696
------ ------
$14,879 $15,288
====== ======
Inventories are valued at the lower of cost (first-in, first out) or
market. Finished goods include component parts and finished product ready
for shipment.
5. Investment in Affiliate
The Company owns 4,117,647 shares of Ajay Sports, Inc. ("Ajay") common
stock, or approximately 18% of Ajay's outstanding common stock, and the
Company owns vested options to acquire 11,110,873 of Ajay's common stock at
prices ranging from $.34 to $.50 per share. The Company also has
manufacturing rights in certain Ajay facilities through 2002 under a joint
venture agreement. Ajay manufactures and distributes golf clubs, golf
accessories and leisure living furniture primarily to retailers throughout
the United States.
The investment in Ajay is recorded as an investment in affiliate in the
Consolidated Balance Sheets net of the Company's equity interest of $631 in
Ajay's losses since acquiring the investment. The Company is required to
account for the investment in Ajay on the equity method due to common
ownership by the Chairman and President of the Company who is also Chairman
and President of Ajay. At June 30, 1997, the market value of the Company's
investment in Ajay was $1,029 based upon the closing price of $.25 per
share.
The Company had guaranteed Ajay's $13,500 credit facility to the previous
lender ("Previous Lender") of which $12,051 was outstanding at July 11,
1997, the date on which the previous loan was repaid with proceeds from a
new loan ( the "Loan") with a new lender (the "Bank"). Ajay's loan
availability at the date of the Loan closing was insufficient to repay the
Previous Lender. The previous Lender provided Ajay $2,340 of bridge
financing and the Company provided Ajay a secured demand loan of $2,268 at
Loan closing to repay the previous loan in full. The loan from the Company
to Ajay bears an annual interest rate at the Bank's prime rate plus 3/4% .
The expected sources of repayment for the bridge loan are primarily derived
from expected financial transactions of the Company. Therefore, it is
likely that Ajay will need to borrow additional funds from the Company in
the future to repay the bridge loan to the extent that the bridge loan is
repaid with Company funds(See Note 6). As a condition to the loans made by
the Company to Ajay, Ajay has agreed to grant the Company a security
interest in all of the assets of Ajay subordinate to the liens of the Bank
and the Previous Lender. In addition, the Company has agreed to issue
400,000 newly issued shares of the Company's common stock to Ajay which
will be security to the previous lender for the bridge loan. The Company
has also agreed to purchase approximately $1,000 of notes payable by Ajay
to affiliated parties, which had provided loans to Ajay to help Ajay
finance operations during debt refinancing. These affiliated companies
provided these loans because the Company was prohibited from down-streaming
funds to Ajay while the previous loan was in default.
6
<PAGE>
Notes to Unaudited Consolidated Financial Statements
Three Months ended June 30, 1997 and 1996
(Dollars in thousands, except per share amounts) Williams Controls, Inc.
6. Debt - Subsequent Event
On July 11, 1997, the Company refinanced its bank debt with the Bank under
a $34,088 three year revolving credit and term loan agreement. Accordingly,
the Company has recorded the debt as a long-term liability as of June 30,
1997. At the date of the Loan closing, the Company borrowed a total of
$17,141 which was comprised of $9,619 of borrowings under the $26,000
revolving loan facility (the "Revolver"), $2,658 under a real estate term
loan ("Real Estate Loan"), $3,864 under a machinery and equipment loan
("Term Loan I"), and $1,000 under Term Loan II ("Term Loan II"). The Loan
is a joint and several obligation of the Company and Ajay. At the date of
the Loan closing, Ajay borrowed a total of $7,391 which was comprised of
$6,825 under the Revolver and $566 under Term Loan I. The proceeds from the
Company's and Ajay's borrowings plus cash on hand were used to repay the
Previous Lender. In addition, the Previous Lender provided bridge financing
of $2,340 to Ajay which is to be repaid primarily from the proceeds of the
sale of Kenco (Note 9), the sale of other assets, or from a specified
percentage of future combined Ajay and Williams cash flow. The Company's
Chairman has guaranteed $1,000 of the bridge loan and the Term Loan II.
Under the Revolver, the Company and Ajay can borrow up to $26,000 based
upon a borrowing base availability calculated using specified percentages
of eligible accounts receivable and inventory. The Revolver bears interest
at the Bank's prime rate (8.5% at July 11, 1997) plus .5%. The Real Estate
Loan and Term Loan I bear interest at the Bank's prime rate plus .75%. At
the Company's option, the Company may borrow funds under the Revolver, the
Real Estate Loan and the Term Loan I at the London InterBank Offering Rate
("Libor") plus 2.75%, 3% and 3%, respectively. The Revolver, Real Estate
Loan and Term Loan I mature on July11, 2000 and are secured by
substantially all of the assets of the Company and Ajay. The Real Estate
Loan is being amortized over 20 years and Term Loan I is being amortized
over seven years with all remaining principal outstanding due on July 11,
2000. At July 11, 1997, after the Loan closing, the Company had
approximately $1,545 available for borrowing under the Loan. Term Loan II
matures on June 1, 1999 with principal payments based upon an amortization
period of 24 months plus additional principal payments equal primarily to
any excess proceeds from the sale of Kenco after repayment of any
indebtedness under the Revolver borrowing due from Kenco plus principal
payments equal to 50% of the Company's and Ajay's annual consolidated
excess cash flow, as defined. The Loan agreement prohibits payment of any
dividends by the Company, requires the Company and Ajay in the aggregate to
maintain minimum working capital of $25,000 exclusive of the Revolver and
maintain minimum tangible net worth of $11,000. The Loan also prohibits
additional indebtedness and common stock repurchases, and restricts
combined Company and Ajay annual capital expenditures and increased
operating lease obligations to $2,500 and $600, respectively. The Loan
agreement imposes a prepayment penalty of 3%-.5%, which is waived if the
Loan is repaid with proceeds from the sale of assets or equity or is
refinanced with an affiliate of the Bank.
7. Common Stock and Treasury Shares - Stock Repurchase Program
In July 1997, the Company agreed to issue 400,000 shares of common stock to
Ajay as security for a bridge loan due to the Previous Lender. In addition,
the Company has agreed to issue, if required by the affiliated companies'
lender, up to $1,000 market value of the Company's common stock to serve as
collateral for notes due to such affiliated companies in exchange for the
affiliated companies agreement to subordinate to the Bank their rights to
principal repayments until certain financial transactions have been
completed.
7
<PAGE>
Notes to Unaudited Consolidated Financial Statements
Three Months ended June 30, 1997 and 1996
(Dollars in thousands, except per share amounts) Williams Controls, Inc.
7. Common Stock and Treasury Shares - Stock Repurchase Program (continued)
The Company granted 1,078,800 options under the Employee Stock Option Plan
to 195 employees on May 1, 1997, with an exercise price equal to the market
value at date of grant. In January 1996 the Company initiated a stock
repurchase program of up to one million shares of the Company's common
stock. The Loan prohibits further purchases under this program. Under this
program, through June 1997, the Company had acquired approximately 195,200
shares at an average price of $2.77 per share. During the nine months ended
June 30, 1997, the Company issued 65,000 treasury shares to related parties
for acquisition advisory work.
8. Sale/Leaseback - Contingent Liability
In April 1997 the Company sold its Portland, Oregon manufacturing facility
in a sale-leaseback transaction for $4,524 less $250 withheld in an escrow
fund for possible environmental cleanup costs. The Company may be required
to repurchase the property within one year if it cannot cure possible
environmental problems at the sold property and may be required to finance
part of the purchaser's price in October 1997 if the purchaser cannot
obtain permanent financing from a lender willing to accept the
environmental condition of the property. The acquisition agreement under
which the Company purchased the facility contains provisions for
indemnification by the subsidiary of the company that owned and sold the
property to the Company for any environmental cleanup costs after the
subsidiary spends $25 towards such cleanup. The Company intends to seek
indemnification from the prior property owner for cleanup costs, if any.
Although the Company has the right of first refusal to repurchase the
building during the first year if the purchaser attempts to sell the
property to a third party, the Company has discussed with the purchaser the
possible resale of the building to an acceptable third party who would
purchase the property without any contingent repurchase obligation.
The transaction was accounted for as a financing in which the property
remains recorded as an asset and continues to be depreciated and the
capitalized lease obligations are recorded as long term liabilities. The
lease has a term of 15 years and requires minimum annual payments of $450
with rental increases every two years equal to the increase in the consumer
price index for the Portland, Oregon area but not greater than a 5% nor
less than a 3% increase for every two-year period. At the time that the
contingent repurchase obligation is eliminated, the Company will record the
transaction as an operating lease. At such time, the gain on the sale of
approximately $1,700 will be recognized and the capitalized costs and lease
obligation will be eliminated from the balance sheet.
9 Discontinued Operations
On May 8, 1997, the Company signed a letter of intent to sell Kenco. The
Company anticipates that Kenco will be sold on or around September 30,
1997, but there is no assurance that the sale will occur. If the sale does
not occur, the Company will consider all strategic alternatives for
reduction of operating losses including sale, merger or liquidation of
Kenco. Accordingly, Kenco is reported as a discontinued operation for the
quarter and nine months ended June 30, 1997 and 1996. Based upon the
proposed terms of the sale, the purchaser will acquire certain assets,
excluding Kenco's manufacturing and warehousing facility, for $5,000 in
cash and assume the liability for trade payables and other current
liabilities. The proposed purchaser has expressed an interest in also
purchasing the manufacturing and warehouse facilities, which would result
in an as yet undetermined increase in the cash purchase price. In addition,
under the terms of the purchase offer, the Company will receive an equity
interest in the new company.
8
<PAGE>
Notes to Unaudited Consolidated Financial Statements
Three Months ended June 30, 1997 and 1996
(Dollars in thousands, except per share amounts) Williams Controls, Inc.
The summarized results for Kenco are as follows:
<TABLE>
<CAPTION>
Three months Three months Nine months Nine months
ended ended ended ended
June 30, 1997 June 30, 1996 June 30, 1997 June 30, 1996
<S> <C> <C> <C> <C>
Net sales $ 2,194 $ 4,001 $ 7,285 $ 11,922
Loss from discontinued operations (450) (2,928) (1,727) (3,362)
Allocated interest expense 60 113 290 339
------ -------- -------- --------
Loss before income tax benefit (510) (3,041) (2,017) (3,701)
Income tax benefit 204 1,217 810 1,481
------ ------- -------- ------
Net loss from discontinued operations (306) (1,824) (1,207) (2,220)
------ ------- -------- ------
Loss on disposal before interest
and income taxes (2,771) - (2,771) -
Allocated interest expense 505 - 505 -
-------- ------- ------- ------
Loss on disposal before
income tax benefit (3,276) - (3,276) -
Income tax benefit 1,311 - 1,311 -
------ ------- ------- ------
Loss on disposal (1,965) - (1,965) -
------ ------- ------- ------
Total loss on discontinued operations $(2,271) $(1,824) $(3,172) $ (2,220)
====== ====== ====== =======
</TABLE>
The estimated loss on disposal of Kenco of $1,965 consists of $1,171 of
estimated future operating losses net of tax benefits of $781 and $794 of
operating losses incurred since the measurement date net of tax benefits of
$530. The $794 of operating losses since the measurement date include $488
of charges which are primarily provisions for obsolete inventory and
charges for other non-recoverable assets. The Company has elected to
include estimated interest costs in its estimated loss on disposal based
upon the expected debt reduction from the $5,000 of cash proceeds and the
current rate of interest. The 1996 third quarter and nine-month loss from
discontinued operations included a $2,250 pre-tax restructuring charge.
9
<PAGE>
Notes to Unaudited Consolidated Financial Statements
Three Months ended June 30, 1997 and 1996
(Dollars in thousands, except per share amounts) Williams Controls, Inc.
10. Segment Information
<TABLE>
<CAPTION>
Three months Three months Nine months Nine months
ended ended ended ended
June 30, 1997 June 30, 1996 June 30, 1997 June 30, 1996
<S> <C> <C> <C> <C>
By classes of similar products
Net Sales - Continuing Operations:
Vehicle components $ 11,119 $ 9,333 $31,696 $26,503
Agricultural equipment 2,352 3,251 7,864 8,277
Electrical components 1,065 890 2,745 3,336
------- ------- ------- ------
Total from continuing operations 14,536 13,474 42,305 38,116
Net Sales - Discontinued Operations 2,194 4,001 7,285 11,922
------- ------ ------ ------
Total sales 16,730 17,475 49,590 50,038
====== ====== ====== ======
Earnings (Loss) from Continuing Operations:
Vehicle components 1,716 1,389 4,961 4,843
Agricultural equipment (810) 489 (1,017) 1,013
Electrical components (232) (117) (868) (147)
------ ------ ------ ------
Total from continuing operations 674 1,761 3,076 5,709
Loss - Discontinued Operations (450) (2,928) (1,727) (3,362)
------ ------ ------ -------
Total earnings (loss) from operations 224 (1,167) 1,349 2,347
====== ====== ====== =======
Capital expenditures from Continuing Operations:
Vehicle components 233 26 410 268
Agricultural equipment 40 22 169 373
Electrical components 72 3 156 213
------ ------ ------ ------
Total from continuing operations 345 51 735 854
Capital Expenditures - Discontinued Operations 59 125 278 285
------ ------ ------ -----
Total capital expenditures 404 176 1,013 1,139
====== ====== ===== =====
Depreciation and Amortization - Continuing
Operations:
Vehicle components 272 251 711 1,104
Agricultural equipment 40 80 185 178
Electrical components 78 63 220 180
----- ------ ------ --------
Total from continuing operations 390 394 1,116 1,462
Depreciation and Amortization - Discontinued
Operations 65 65 187 193
----- ------ ------ --------
Total depreciation and amortization $ 455 $ 459 $ 1,303 $ 1,655
===== ====== ====== ========
June 30, June 30,
1997 1996
Identifiable assets
Heavy vehicle components 24,229 19,370
Discontinued operations - automotive accessories 11,265 14,589
Agricultural equipment 10,565 13,678
Electrical components 7,793 7,553
------ ------
Total assets $53,942 $55,190
====== ======
</TABLE>
Note: Prior year data restated to conform with current year segment
classification.
10
<PAGE>
Management's Discussion and Analysis of
Financial Condition and Results of Operations
(Dollars in thousands, except per share amounts) Williams Controls, Inc.
Financial Condition, Liquidity and Capital Resources
The Company's principal sources of liquidity are borrowings under its Loan and
funds generated from operations. At June 30, 1997, the Company's working capital
improved to $21,489 compared with $2,055 at September 30, 1996 and the current
ratio improved to 3.1 at June 30, 1997 compared to 1.1 at September 30, 1996.
The improvement was primarily as a result of the successful refinancing of the
Company's bank debt and resulting classification of the Loan as a long-term
obligation and also as a result of a sale/leaseback transaction. The Company
generated cash flow from operations of $2,740 for the nine months ended June 30,
1997 compared to cash used of $3,066 for the nine months ended June 30, 1996.
The Company's 1997 cash flow from operations benefited from improved receivable
and inventory management and a federal tax refund.
The Company intends to reduce Bank debt and fund operational growth by raising
additional capital through the sale of Kenco, a possible sale/leaseback of a
manufacturing facility and a private placement or public offering of its common
stock. The Company has signed a letter of intent to sell certain assets of Kenco
for an expected $5,000 cash plus the assumption of certain liabilities. The
proceeds of this transaction, if completed, would be used to pay bank debt
including Term Loan II and any excess proceeds would be used towards payment of
the $2,340 bridge loan provided to Ajay by the Previous Lender. The payment on
Ajay's behalf would increase the demand loan due from Ajay.
In April 1997 the Company sold its Portland, Oregon manufacturing facility in a
sale-leaseback transaction for $4,524. The Company may be required to repurchase
the property within one year if it cannot cure possible environmental problems
and may be required to finance part of the purchaser's price in October 1997 if
the purchaser cannot obtain permanent financing from a lender willing to accept
the environmental condition of the property. Although the Company has the right
of first refusal to repurchase the building during the first year if the
purchaser attempts to sell the property to a third party, the Company has
discussed with the purchaser the possible resale of the building to an
acceptable third party who would purchase the property without any contingent
repurchase obligation. The acquisition agreement under which the Company
purchased the facility contains provisions for indemnification by the subsidiary
of the company that owned and sold the property to the Company for any
environmental cleanup costs after the subsidiary spends $25 towards such
cleanup. The Company intends to seek indemnification from the prior property
owner for cleanup costs, if any, under those indemnification provisions.
11
<PAGE>
Management's Discussion and Analysis of
Financial Condition and Results of Operations
(Dollars in thousands, except per share amounts) Williams Controls, Inc.
Results of Operations
Overview
The Company has agreed to sell the remaining operations of the automotive
accessories segment, which have been classified as discontinued operations.
Continuing Operations
The following discussion of results of operations include only the continuing
operations and all references to financial statement amounts are for continuing
operations only.
The Company's net earnings from continuing operations declined $551 and $1,668,
or 75.3% and 63.4%, respectively, for the quarter and nine months ended June 30,
1997, compared to the prior year periods primarily as a result of losses in the
agricultural equipment and electrical component segments.
Three months ended June 30, 1997 compared to the three months ended June 30,
1996
Net sales from continuing operations: Net sales increased $1,062, or 7.9%, to
$14,536 for the three months ended June 30, 1997 compared to $13,474 in the
prior year quarter. Excluding the sales of GeoFocus, which was acquired in
August 1996, sales increased $875, or 6.5% for the quarter ended June 30, 1997.
Sales as a percent of total sales in the vehicle components, agricultural
equipment and electrical components segments were 76.5%, 16.2% and 7.3% in the
1997 quarter compared to 69.3%, 24.1% and 6.6% in the 1996 quarter. Vehicle
component sales in the quarter ended June 30, 1997 increased $1,786, or 19.1%,
due to higher unit sales of component parts to heavy truck manufacturers. Sales
of agricultural equipment declined $899, or 27.7%, in the quarter ended June 30,
1997 due to lower unit sales believed to result from reduced demand resulting
from cool and rainy weather in the Spring of 1997. Electrical component sales
increased $175, or 19.7% primarily due to the acquisition of GeoFocus, Inc. in
August 1996. Electrical equipment sales exclusive of GeoFocus sales decreased
$12, or 1.3%.
Cost of sales from continuing operations: Costs of sales as a percent of sales
increased to 78.9% in the quarter ended June 30, 1997 compared to 72.0% in the
quarter ended June 30, 1996. The higher cost of sales percentage related
primarily to lower sales and the resulting lower absorption of fixed overheads
at the agricultural equipment segment and higher costs in the electrical
equipment segment.
Operating expenses - continuing operations: Operating expenses increased $374,
or 18.5%, to $2,392 in the quarter ended June 30, 1997 compared to $2,018 in the
prior year quarter. Operating expenses were 16.5% of sales in the quarter ended
June 30, 1996 compared to 15.0 % of sales in the quarter ended June 30, 1996.
Higher operating expenses related primarily to increased selling costs in the
agricultural equipment segment and increased administration costs in the
electrical component segment due to the acquisition of GeoFocus, Inc. in August
1996.
Other expenses: Other expenses increased $69, or 15.9%, to $502 in the quarter
ended June 30, 1997 compared to $433 in the prior year quarter due to higher
interest rates on defaulted bank debt and increased losses from the Company's
equity investment in Ajay.
12
<PAGE>
Management's Discussion and Analysis of
Financial Condition and Results of Operations
(Dollars in thousands, except per share amounts) Williams Controls, Inc.
Results of Operations - Continued
Nine months ended June 30, 1997 compared to the nine months ended June 30, 1996
Net sales from continuing operations: Net sales increased $4,189, or 11.0%, to
$42,305 for the nine months ended June 30, 1997 compared to $38,116 in the prior
year period. PPT and GeoFocus were not in operation for the full 1996 period.
Excluding the sales of PPT and GeoFocus, sales increased $1,225, or 3.3%, for
the nine months ended June 30, 1997 compared to the prior year period.
Sales as a percent of total sales in the vehicle components, agricultural
equipment and electrical components segments were 74.9%, 18.6% and 6.5% for the
nine months ended June 30, 1997 compared to 69.5%, 21.7% and 8.8% in the prior
year period. Vehicle component sales for the nine months ended June 30, 1997
increased $5,193, or 19.6%. Excluding sales of PPT, which was acquired in April
1996, sales of the vehicle component segment increased $2,708, or 10.8% the for
the nine months ended June 30, 1997 over the prior year period due to higher
unit sales of component parts to heavy truck manufacturers. Sales of
agricultural equipment declined $413, or 5.0%, for the nine months ended June
30, 1997 due to lower unit sales believed to result from reduced demand
resulting from cool and rainy weather in the Spring of 1997. Electrical
component sales decreased $591, or 17.7%. Electrical component sales exclusive
of GeoFocus, which was acquired in August 1996, decreased $1,070, or 32.1%
primarily due to the loss of two major customers.
Cost of sales from continuing operations: Costs of sales as a percent of sales
increased to 76.3% for the nine months ended June 30, 1997 compared to 70.6% in
the prior year period. The higher cost of sales percentage related primarily to
lower sales and the resulting lower absorption of fixed overheads at the
agricultural equipment segment and the electrical equipment segment.
Operating expenses: Operating expenses increased $1,457, or 26.6%, to $6,943 for
the nine months ended June 30, 1997 compared to $5,486 in the prior year period.
Exclusive of PPT and GeoFocus, which were not in operation for the full
nine-month period ended June 30, 1997, operating expenses increased $623, or
11.6% over the period ended June 30, 1996. Operating expenses were 16.4% of
sales for the nine months ended June 30, 1997 compared to 14.4% of sales for the
nine months ended June 30, 1996. Higher operating expenses for operations that
were in operation for both the nine months ended June 30, 1997 and 1996 related
primarily to increased selling costs in the agricultural equipment segment.
Other expenses: Other expenses increased $412, or 33.5%, to $1,641 for the nine
months ended June 30, 1997 compared to $1,229 for the same period in 1996 due to
higher interest expenses associated with increased borrowings, higher interest
rates on defaulted bank debt and increased losses from the equity investment in
Ajay.
Discontinued Operations
Net loss from the discontinued automotive accessories segment was $306 net of
tax benefits of $204 for the three months ended June 30, 1997 compared to net
losses of $1,824 net of tax benefits of $1,217 for the quarter ended June 30,
1996. The 1997 quarterly net loss includes operations for the quarter through
the measurement date of May 8, 1997. All losses after the measurement date are
reported as losses on disposal
13
<PAGE>
Management's Discussion and Analysis of
Financial Condition and Results of Operations
(Dollars in thousands, except per share amounts) Williams Controls, Inc.
Results of Operations (continued)
Discontinued Operations (continued)
of discontinued operations. The 1996 losses included a pre-tax operating
restructuring charge of $2,250. Net sales from the discontinued segment declined
$1,807, or 45.2% to $2,194 for the quarter ended June 30, 1997 compared to
$4,001 in the prior year period.
Net loss from the automotive accessories discontinued segment was $1,207 net of
tax benefits of $810 for the nine months ended June 30, 1997 compared to net
losses of $2,220 net of tax benefits of $1,481 for the nine months ended June
30, 1996. The 1996 losses included a pre-tax operating restructuring charge of
$2,250. Net sales from the discontinued segment declined $4,637, or 38.9% to
$7,285 for the nine months ended June 30, 1997 compared to $11,922 in the prior
year period. The decline in automotive accessory sales was due to lower unit
sales and lower prices resulting from strong downward price pressure generated
by competitors who are vertically integrated and have lower cost structures than
the Company's automotive accessories segment.
The estimated loss on disposal of the business of $1,965 consists of $1,171 of
estimated future operating losses net of tax benefits of $781 and $794 of
operating losses incurred since the measurement date net of tax benefits of
$530. The $794 of operating losses since the measurement date includes $489 of
charges that are primarily estimated inventory reserves. The Company has elected
to include interest costs in its estimated loss on disposal based upon the
expected debt reduction from the $5,000 of cash proceeds and the current rate of
interest. The 1996 third quarter and nine-month loss from discontinued
operations included a $2,250 restructuring charge.
14
<PAGE>
Part II
Item 4. Submission of Matters to a Vote of Security Holders
None
Item 5. Other Information
None
Item 6. Exhibits and Reports on Form 8-K
10.1 Credit Agreement dated July 11, 1997, among registrant and its
subsidiaries and Ajay Sports, Inc. And its subsidiaries, as
borrowers, and Wells Fargo Bank, National Association, as lender
(the "Credit Agreement").
10.2 Promissory Notes under the Credit Agreements
(a) Revolving Credit Loans Promissory Note
(b) Term Loan I Promissory Note
(c) Term Loan II Promissory Note
(d) Real Estate Loan Promissory Note
10.3 Mortgage and Security Agreement between Aptek Williams, Inc.
and Wells Fargo Bank
10.4 Patent Assignment and Security Agreements for
(a) Williams Controls Industries, Inc.
(b) Kenco Williams, Inc.
(c) Hardee Williams, Inc.
(d) Aptek Williams, Inc.
10.5 Trademark Security Agreements for
(a) Agrotec Williams, Inc.
(b) Hardee Williams, Inc.
(c) Kenco Williams, Inc.
10.6 Continuing Unconditional Guaranty of Thomas W. Itin in favor of Wells
Fargo Bank.
10.7 Intercreditor Agreement dated July 11, 1997 among registrant and
subsidiaries, Ajay Sports, Inc. and subsidiaries, United States
National Bank of Oregon ("US Bank"), Thomas W. Itin, and Wells Fargo
Bank, National Association. 10.8 Consent, Reaffirmation and Release
Agreement with US Bank.
10.9 Promissory Note of Ajay for $2,340,000 to US Bank.
10.10 Mortgage, Assignment of Rents, Security Agreement and Fixture
Filing by Aptek Williams, Inc. in favor of US Bank.
10.11 Guaranty to US Bank
15
<PAGE>
Williams Controls, Inc.
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
WILLIAMS CONTROLS, INC.
/s/ Thomas W. Itin
------------------
Thomas W. Itin, Chairman, President and
CEO
/s/ Gerard A. Herlihy
----------------------
Gerard A. Herlihy, Chief Financial
Officer
Date: August 14, 1996
16
CREDIT AGREEMENT
among
WILLIAMS CONTROLS, INC.
AJAY SPORTS, INC.
LEISURE LIFE, INC.
PALM SPRINGS GOLF, INC.
AJAY LEISURE PRODUCTS, INC.
AGROTEC WILLIAMS, INC.
APTEK WILLIAMS, INC.
GEOFOCUS, INC.
HARDEE WILLIAMS, INC.
KENCO/WILLIAMS, INC.
NESC WILLIAMS, INC.
PREMIER PLASTIC TECHNOLOGIES, INC.
WACCAMAW WHEEL WILLIAMS, INC.
WILLIAMS CONTROLS INDUSTRIES, INC.
WILLIAMS TECHNOLOGIES, INC.
WILLIAMS WORLD TRADE, INC.
WILLIAMS AUTOMOTIVE, INC.
TECHWOOD WILLIAMS, INC.
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
TOTAL COMMITMENT -- $34,088,000
July 11, 1997
<PAGE>
CREDIT AGREEMENT
THIS AGREEMENT is entered into as of July 11, 1997, by and among WILLIAMS
CONTROLS, INC. a Delaware corporation, AJAY SPORTS, INC., a Delaware
corporation, LEISURE LIFE, INC., a Tennessee corporation, PALM SPRINGS GOLF,
INC., a Colorado corporation, AJAY LEISURE PRODUCTS, INC., a Delaware
corporation, AGROTEC WILLIAMS, INC., a Delaware corporation, APTEK WILLIAMS,
INC., a Delaware corporation, GEOFOCUS, INC., a Florida corporation, HARDEE
WILLIAMS, INC., a Delaware corporation, KENCO/WILLIAMS, INC., a Delaware
corporation, NESC WILLIAMS, INC., a Delaware corporation, PREMIER PLASTIC
TECHNOLOGIES, INC., a Delaware corporation, WACCAMAW WHEEL WILLIAMS, INC., a
Delaware corporation, WILLIAMS CONTROLS INDUSTRIES, INC., a Delaware
corporation, WILLIAMS TECHNOLOGIES, INC., a Delaware corporation, WILLIAMS WORLD
TRADE, INC., a Delaware corporation, WILLIAMS AUTOMOTIVE, INC., a Delaware
corporation, TECHWOOD WILLIAMS, INC., a Delaware corporation, (each individually
referred to as "Borrower" and all collectively referred to as "Borrowers"), and
WELLS FARGO BANK, NATIONAL ASSOCIATION ("Bank").
RECITALS
Borrowers have requested the credit facilities described herein, and Bank
has agreed to provide said credit facilities to Borrowers on the terms and
conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises of
the parties contained herein, Borrowers and Bank hereby agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1 DEFINED TERMS
All terms defined above shall have the meanings set forth above. Any
accounting term used in this Agreement which is not specifically defined herein
shall have the meaning customarily given to it under GAAP, and all other terms
contained in this Agreement which are not defined herein shall, unless the
context indicates otherwise, have the meanings provided for by the Code to the
extent such terms are defined therein. The following terms shall have the
meanings set forth below (with all such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Accounts" shall have the meaning attributed to the term "accounts" in the
Code and shall include, without limitation, all presently existing and hereafter
arising rights to payment for goods sold or leased or for services rendered,
which are not evidenced by instruments or chattel paper, whether or not they
have been earned by performance.
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<PAGE>
"Agent" means Williams Controls, Inc., a Delaware corporation, in its
capacity as agent for each Borrower.
"Agreement" means this Credit Agreement as amended, modified or
supplemented from time to time.
"Aggregate Working Capital" means, as of any date, an amount equal to (i)
the amount (which may be a negative number) by which Williams Parent's
consolidated current assets exceed its consolidated current liabilities
(exclusive of the Revolving Loans) plus (ii) the amount (which may be a negative
number) by which Ajay Parent's consolidated current assets exceed its
consolidated current liabilities (exclusive of the Revolving Loans), computed
without duplication with respect to the Obligations.
"Ajay Parent" means Ajay Sports, Inc., a Delaware corporation.
"A/R Advance Rates" means the following (or such other rates as Bank
may designate from time to time in its sole discretion) with respect to
the Eligible Accounts of each Borrower listed below: (i) 70% for Hardee
Williams, Inc. and Kenco/Williams, Inc.; (ii) 75% for Agrotec Williams,
Inc.; (iii) 80% for Palm Springs Golf, Inc. and Premier Plastics
Technologies, Inc. and (iv) 85% for Leisure Life, Inc., Ajay Leisure
Products, Inc., Williams Controls Industries, Inc., Aptek Williams, Inc.,
NESC Williams, Inc., GeoFocus, Inc. and Waccamaw Wheel Williams, Inc.
"Authorized Representative" means a person designated by Agent on the most
current Notice of Authorized Representatives delivered by Agent to Bank as being
authorized to request any borrowing or make any interest rate selection on
behalf of Borrowers hereunder, or to give Bank any other notice hereunder which
is required by the terms hereof to be made through an Authorized Representative.
"Available Credit" means, at any time, the amount by which the aggregate
of the outstanding principal amount of the Revolving Loans at such time and the
Letter of Credit Obligations at such time is less than the lesser of (i)
$26,000,000 or (ii) the Borrowing Base.
"Availability Reserves" means, as of any date of determination, such
amounts (expressed as either a specified amount or as a percentage of a
specified category or item) as Bank may from time to time establish and revise
in Good Faith reducing the amount of Revolving Loans and Letters of Credit which
would otherwise be available to Borrowers under the lending formula(s) provided
for herein: (a) to reflect events, conditions, contingencies or risks which, as
determined by Bank in Good Faith, do or may affect either (i) the Collateral or
its value, (ii) the assets, business or prospects of Borrower or any Obligor, or
(iii) the security interests and other rights of Bank in the Collateral
(including the enforceability, perfection and priority thereof), or (b) to
reflect Bank's Good Faith belief that any collateral report or financial
information furnished by or on behalf of Borrower or any Obligor to Bank is or
may have been incomplete, inaccurate or misleading in any material respect, or
(c) in respect of any state of facts which Bank determines in Good Faith
constitutes a Default.
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<PAGE>
"Bankruptcy Code" means the Bankruptcy Reform Act, Title 11 of the United
States Code, as amended or recodified from time to time, including (unless the
context otherwise requires) any rules or regulations promulgated thereunder.
"Base Rate" means, for any day, an interest rate per annum equal to the
rate of interest most recently announced within Bank at its principal office in
San Francisco, California, as its prime rate, with any change in the prime rate
to be effective as of the day such change is announced within Bank and with the
understanding that the prime rate is one of Bank's base rates used to price some
loans and may not be the lowest rate at which Bank makes any loan, and is
evidenced by the recording thereof in such internal publication or publications
as Bank may designate.
"Base Rate Loan" means the outstanding principal amount of any Loan that
bears interest with reference to the Base Rate.
"Borrowing Base" means, as of any date of determination, an amount
equal to the following amount:
(i) the applicable A/R Advance Rates applied to an amount equal to
(A) the face amount of the then outstanding Eligible Accounts of each
Borrower for whom there is an A/R Advance Rate less (B) sales, excise or
similar taxes included in the amount thereof and less (C) returns,
discounts, claims, credits and allowances of any nature at any time
issued, owing, granted, outstanding, available or claimed with respect
thereto;
(ii) plus the lesser of (a) $15,000,000 or (b) the applicable
Inventory Advance Rates applied, with respect to the applicable category
of Eligible Inventory, to the then amount of such Eligible Inventory
valued at the lower of cost (determined on a "first in, first out" basis)
or market value;
(iii) less all outstanding Letter of Credit Obligations; and
(iv) less all Availability Reserves.
"Business Day" means (i) for all purposes other than as covered by clause
(ii) below, any day other than a Saturday, Sunday or other day on which
commercial banks are authorized or required to be closed in San Francisco,
California, and (ii) with respect to all notices, determinations, fundings and
payments in connection with any LIBOR interest selection or LIBOR Loan, any day
that is a Business Day described in clause (i) above and that also is a day for
trading by and between banks in U.S. dollar deposits in the London interbank
eurocurrency market.
"Capitalized Lease" means, as to any Person, any lease of property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with GAAP.
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<PAGE>
"Capitalized Lease Obligations" means, as to any Person, the capitalized
amount of all obligations of such Person and its subsidiaries under Capitalized
Leases, as determined on a consolidated basis in accordance with GAAP.
"Cash Collateral Account" has the meaning set forth in Section 4.1
hereof.
"Change of Law" means the adoption of any Governmental Rule, any change in
any Governmental Rule or the application or requirements thereof (whether such
change occurs in accordance with the terms of such Governmental Rule as enacted,
as a result of amendment or otherwise), any change in the interpretation or
administration of any Governmental Rule by any Governmental Authority, or
compliance by Bank (or any entity controlling Bank) with any request, guideline
or directive (whether or not having the force of law) of any Governmental
Authority.
"Closing Date" means the date of this Agreement.
"Code" means the Uniform Commercial Code of the State of Oregon as amended
from time to time.
"Collateral" means (i) all property and rights in and to property of each
Borrower, including, without limitation, all Rights to Payment, Inventory,
General Intangibles, Equipment, Records and money and all instruments, chattel
paper, deposit accounts, documents, goods, investment property (except stock of
a Borrower) and fixtures; (ii) all products, proceeds, rents and profits of the
foregoing; and (iii) all of the foregoing, whether now owned or existing or
hereafter acquired or arising or in which any Borrower now has or hereafter
acquires any rights.
"Commodity Contracts" means commodity options, futures, swaps, and other
similar agreements and arrangements designed to provide protection against
fluctuations in commodity prices.
"Contaminant" means any pollutant, hazardous substance, toxic substance,
hazardous waste or other substance regulated or forming the basis of liability
under any Environmental Law.
"Contingent Obligation" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of such Person with respect to any
Indebtedness or Contractual Obligation of another Person, if the purpose or
intent of such Person in incurring the Contingent Obligation is to provide
assurance to the obligee of such Indebtedness or Contractual Obligation that
such Indebtedness or Contractual Obligation will be paid or discharged, or that
any agreement entered into by such other Person relating to such Indebtedness or
Contingent Obligation will be complied with, or that any holder of such
Indebtedness or Contractual Obligation will be protected against loss in respect
thereof. Contingent Obligations of a Person include, without limitation, (a) the
direct or indirect guarantee, endorsement (other than for collection or deposit
in the ordinary course of business), co-making, discounting with recourse or
sale with recourse by such Person of an obligation of another Person, and (b)
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<PAGE>
any liability of such Person for an obligation of another Person through any
agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise
acquire such obligation or any security therefor, or to provide funds for the
payment or discharge of such obligation (whether in the form of a loan, advance,
stock purchase, capital contribution or otherwise), (ii) to maintain the
solvency or any balance sheet item, level of income or financial condition of
another Person, (iii) to make take-or-pay or similar payments, if required,
regardless of non-performance by any other party or parties to an agreement,
(iv) to purchase, sell or lease (as lessor or lessee) property, or to purchase
or sell services, primarily for the purpose of enabling the debtor to make
payment of such obligation or to assure the holder of such obligation against
loss, or (v) to supply funds to or in any other manner invest in such other
Person (including, without limitation, to pay for property or services
irrespective of whether such property is received or such services are
rendered), if in the case of any agreement or liability described under
subclause (i), (ii), (iii), (iv) or (v) of this sentence the primary purpose or
intent thereof is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the lesser of (i) the amount payable
under such Contingent Obligation (if quantifiable), or (ii) the portion of the
obligation so guaranteed or otherwise supported.
"Contractual Obligation" of any Person means any obligation, agreement,
undertaking or similar provision of any security issued by such Person or of any
agreement, undertaking, contract, lease, indenture, mortgage, deed of trust or
other instrument to which such Person is a party or by which it or any of its
property is bound or to which any of its property is subject.
"Default" means an Event of Default or an event or condition which with
the giving of notice or the passage of time, or both, would constitute an Event
of Default.
"Disclosure Schedule" means Schedule I attached hereto.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended or recodified from time to time, including (unless the context otherwise
requires) any rules or regulations promulgated thereunder.
"Eligible Accounts" means those Accounts which Bank determines to be
eligible in the Good Faith exercise of its discretion pursuant to Section
3.1(e).
"Eligible Inventory" means (i) Inventory which Bank determines to be
eligible in the Good Faith exercise of its discretion pursuant to Section 3.1(f)
plus (ii) the face amount of each documentary Letter of Credit issued in
connection with the acquisition by Borrower of goods that will be, on delivery
to Borrower in the United States, Eligible Inventory as defined under item (i),
provided such Letter of Credit provides that no draft against it will be honored
unless all documents necessary to claim and take delivery of the goods in the
United States are delivered with the draft and provided Borrower has delivered
to Bank such evidence of insurance of the goods (and provision for payment of
the proceeds thereof to Bank) as Bank may require.
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<PAGE>
"Environmental Law" means all applicable federal, state and local laws,
statutes, ordinances and regulations, and any applicable judicial or
administrative interpretation, order, consent decree or judgment, relating to
the regulation and protection of the environment. Environmental Laws include but
are not limited to the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. ss. 9601 et seq.); the Hazardous
Material Transportation Act, as amended (49 U.S.C. ss. 180 et seq.); the Federal
Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. ss. 136 et
seq.); the Resource Conservation and Recovery Act, as amended (42 U.S.C. ss.
6901 et seq.); the Toxic Substance Control Act, as amended (42 U.S.C. ss. 7401
et seq.); the Clean Air Act, as amended (42 U.S.C. ss. 740 et seq.); the Federal
Water Pollution Control Act, as amended (33 U.S.C. ss. 1251 et seq.); and the
Safe Drinking Water Act, as amended (42 U.S.C. ss. 300f et seq.), and their
state and local counterparts or equivalents and any applicable transfer of
ownership notification or approval statutes.
"Environmental Liabilities and Costs" means, as to any Person, all
liabilities, obligations, responsibilities, Remedial Actions, losses, damages,
punitive damages, consequential damages, treble damages, costs and expenses
(including, without limitation, all fees, disbursements and expenses of counsel,
experts and consultants and costs of investigation and feasibility studies),
fines, penalties, sanctions and interest incurred as a result of any claim or
demand by any other Person, whether based in contract, tort, implied or express
warranty, strict liability, criminal or civil statute, including, without
limitation, any thereof arising under any Environmental Law, Permit, order or
agreement with any Governmental Authority or other Person, and which relate to
any violation or alleged violation of an Environmental Law or a Permit, or a
Release or threatened Release.
"Equipment" shall have the meaning attributed to the term "equipment" in
the Code and shall include, without limitation, all now owned and hereafter
acquired equipment, machinery, computers and computer hardware and software
(whether owned or licensed), vehicles, tools, furniture, fixtures, all
attachments, accessions and property now or hereafter affixed thereto or used in
connection therewith, and substitutions and replacements thereof, wherever
located.
"Event of Default" has the meaning set forth in Section 10.1 hereof.
"Excess Cash Flow" means, for any period, net income for such period plus
all depreciation, amortization and other noncash charges for such period, less
all capital expenditures (other than expenditures paid for with non-operating
sources) made (as determined in accordance with GAAP) during such period, but
only to the extent that such capital expenditures are permitted pursuant to
Section 9.14, less the scheduled portion of any long-term debt which matured
during such period and was paid during such period, less (or plus) any increase
(or decrease) in working capital (calculated exclusive of cash and the
outstanding Revolving Loan balance) from the beginning of such period to the end
of such period, plus all federal, state and local income taxes accrued during
such period, and less all federal, state and local income tax payments made
during such period.
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"Fee Computation Amount" means, as of the date of computation, the total of
(i) the amount set forth in item (i) of Section 3.1(a) and (ii) the then
outstanding principal balance of Term Loan I, Term Loan II and Real Estate Loan.
"Fixed Rate Term" means a period of one, two, three or six months, as
designated by Agent, during which a Loan bears interest determined in relation
to LIBOR; provided however, that no Fixed Rate Term may extend beyond the
Maturity Date, and if the last day of a Fixed Rate Term is not a Business Day,
such term shall be extended to the next succeeding Business Day, or if the next
succeeding Business Day falls in another calendar month, such term shall end on
the next preceding Business Day.
"GAAP" means generally accepted accounting principles as in effect in the
United States from time to time, consistently applied.
"General Intangibles" shall have the meaning attributed to the term
"general intangible" in the Code, and shall include, without limitation, all tax
and duty refunds, registered and unregistered patents, trademarks, service
marks, copyrights, trade names, applications for the foregoing, trade secrets,
goodwill, processes, drawings, blueprints, customer lists, licenses, whether as
licensor or licensee, choses in action and other claims and existing and future
leasehold interests in equipment.
"Good Faith" means honesty in fact in the conduct or transaction
concerned, without regard to whether standards which might be deemed
commercially reasonable have been observed.
"Governmental Authority" means any domestic or foreign national, state or
local government, any political subdivision thereof, any department, agency,
authority or bureau of any of the foregoing, or any other entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including the Federal Deposit Insurance Corporation,
the Federal Reserve Board, the Comptroller of the Currency, any central bank or
any comparable authority.
"Governmental Rule" means any applicable law, rule, regulation, ordinance,
order, code interpretation, judgment, decree, directive, guidelines, policy or
similar form of decision of any Governmental Authority.
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money (including, without limitation,
reimbursement and all other obligations with respect to surety bonds, letters of
credit and bankers' acceptances, whether or not matured) or for the deferred
purchase price of property or services, (b) all obligations of such Person
evidenced by notes, bonds, debentures or similar instruments, (c) all
indebtedness of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (d) all Capitalized Lease Obligations of such Person, (e) all
Contingent Obligations of such Person, (f) all obligations of such Person to
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purchase, redeem, retire, defease or otherwise acquire for value any Stock or
Stock Equivalents of such Person with a mandatory repurchase or redemption date
of less than ten years from the date of issuance thereof, (g) all obligations of
such Person under Interest Rate Contracts and Commodity Contracts, (h) all
Indebtedness referred to in clause (a), (b), (c), (d), (e), (f) or (g) above
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including, without limitation, Accounts and General Intangibles) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness, (i) in the case of Borrower, its obligations under the
Loan Documents, (j) all liabilities of such Person which would be shown on a
balance sheet of such Person prepared in accordance with GAAP, and (k) all
liabilities of such Person in connection with the failure to make when due any
contribution or payment pursuant to or under any Plan.
"Interest Rate Contracts" means interest rate swap agreements, interest
rate cap agreements, interest rate collar agreements, interest rate insurance,
and other agreements or arrangements designed to provide protection against
fluctuations in interest rates.
"Indemnitees" has the meaning set forth in Section 11.5 hereof.
"Inventory" shall have the meaning attributed to the term "inventory" in
the Code and, in addition, means all now owned and hereafter acquired inventory,
goods, merchandise and other personal property wherever located, while in the
possession of Borrower, a bailee, or other Person, furnished under any contract
of service or intended for sale or lease, including, without limitation, all
farm products, raw materials, work in process, spare parts, component parts,
finished goods and materials and supplies of any kind, nature or description
which are or might be used or consumed in Borrower's business or are or might be
used in connection with the manufacture, packing, shipping, advertising, selling
or finishing of such goods, merchandise and other personal property and all
documents of title or documents representing the same.
"Inventory Advance Rates" means percentages to be fixed and subject to
change by Bank from time to time in Good Faith and in its discretion, which are
applied to Eligible Inventory for purposes of determining the Borrowing Base.
Initially, the Inventory Advance Rates shall be as follows: (i) 35% with respect
to raw materials and (ii) 50% with respect to finished goods. Bank may
establish, in the Good Faith exercise of its discretion, one or more Inventory
Advance Rates which may be applied severally against specific categories or
types of Eligible Inventory, and may from time to time adjust one or more of the
Inventory Advance Rates to reflect contingencies or risks which may affect the
Collateral, the business, business prospects or financial condition of Borrower,
or the security of the Loans.
"Letter of Credit" means a letter of credit issued by Bank pursuant to
Section 3.2 hereof.
"Letter of Credit Agreement" means Bank's standard letter of credit
application and documentation modified to such extent, if any, as Bank deems
necessary.
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"Letter of Credit Obligations" means, at any time, all liabilities at such
time of Borrowers to Bank with respect to Letters of Credit, whether or not any
such liability is contingent.
"LIBOR" means, for each Fixed Rate Term, the rate per annum (rounded
upward if necessary to the nearest whole 1/16 of 1%) and determined pursuant to
the following formula:
LIBOR = Base LIBOR
------------------------------------
100% - LIBOR Reserve Percentage
As used herein, (i) "Base LIBOR" means the average of the rates per annum
at which U.S. dollar deposits are offered to Bank in the London interbank
eurocurrency market on the second Business Day prior to the commencement of a
Fixed Rate Term at or about 11:00 A.M. (London time), for delivery on the first
day of such Fixed Rate Term, for a term comparable to the number of days in such
Fixed Rate Term and in an amount approximately equal to the principal amount to
which such Fixed Rate Term shall apply, and (ii) "LIBOR Reserve Percentage"
means the reserve percentage prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for "Eurocurrency Liabilities" (as defined in
Regulation D of the Federal Reserve Board, as amended), adjusted by Bank for
changes in such reserve percentage during the applicable Fixed Rate Term.
"LIBOR Loan" means the outstanding principal amount of any Loan that bears
interest with reference to LIBOR.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
security interest, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever, including, without limitation, any
conditional sale or other title retention agreement or the interest of a lessor
under a Capitalized Lease Obligation or any other lease.
"Loan" means an advance made by Bank to Borrowers pursuant to any of
Sections 3.1, 3.3, 3.4 or 3.5.
"Loan Documents" means this Agreement and all notes, guarantees, security
agreements, subordination agreements, and other agreements, documents and
instruments now or at any time hereafter executed and/or delivered by Borrower
or any Obligor in connection with this Agreement, as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
"Material Adverse Effect" means a material adverse effect on (a) the
condition (financial or otherwise), business, performance, prospects, operations
or properties of Borrowers, (b) the ability of Borrowers to perform the
Obligations, or (c) the rights and remedies of Bank under the Loan Documents.
"Maturity Date" means the third anniversary of the Closing Date.
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"Note" means a promissory note executed by Borrowers in favor of Bank
evidencing Loans, substantially in one of the forms attached as Exhibit A
hereto.
"Notice of Authorized Representatives" has the meaning set forth in
Section 2.2 hereof.
"Notice of Borrowing" has the meaning set forth in Section 3.1(d)
hereof.
"Notice of Conversion or Continuation" has the meaning set forth in
Section 3.7(b) hereof.
"Obligations" means all of Borrowers' obligations under the Loan
Documents, whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising.
"Obligor" means any guarantor, endorser, acceptor, surety or other person
liable on or with respect to the Obligations, or any of them, or who is the
owner of any property which is security for the Obligations, or any of them,
other than Borrowers.
"Permit" means any permit, approval, authorization, license, variance or
permission required from a Governmental Authority under an applicable
Governmental Rule.
"Permitted Liens" means (i) Liens arising by operation of law for taxes,
assessments or governmental charges not yet due, (ii) statutory Liens of
mechanics, materialmen, shippers, warehousemen, carriers, and other similar
persons for services or materials arising in the ordinary course of business for
which payment is not yet due, (iii) non-consensual Liens incurred or deposits
made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security, (iv)
Liens for taxes or statutory Liens of mechanics, materialmen, shippers,
warehousemen, carriers and other similar persons for services or materials which
are due but are being contested in good faith and by appropriate and lawful
proceedings promptly initiated and diligently conducted and for which reserves
satisfactory to Bank have been established, (v) Liens listed on Schedule I, (vi)
Liens in favor of Bank and (vii) liens to United States National Bank of Oregon
which are subject to subordination terms acceptable to Bank.
"Person" means an individual, partnership, corporation (including, without
limitation, a business trust), joint stock company, limited liability company,
trust, unincorporated association, joint venture or other entity, or a
Governmental Authority.
"Plan" means an employee benefit plan, as defined in Section 3(3) of
ERISA, which Borrower maintains, contributes to or has an obligation to
contribute to on behalf of participants who are or were employed by any of them.
"Real Estate Loan" has the meaning set forth in Section 3.5(a)
hereof.
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"Records" means all of Borrower's present and future records and books of
account of every kind or nature, purchase and sale agreements, invoices, ledger
cards, bills of lading and other shipping evidence, statements, correspondence,
memoranda, credit files and other data relating to the Collateral or any account
debtor, together with the tapes, disks, diskettes and other data and software
storage media and devices, file cabinets or containers in or on which the
foregoing are stored (including any rights of Borrower with respect to the
foregoing maintained with or by any other Person).
"Release" means, as to any Person, any unpermitted spill, emission,
leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching
or migration of a Contaminant into the environment.
"Remedial Action" means all actions required to clean up, remove, prevent
or minimize a Release or threat of Release or to perform pre-remedial studies
and investigations and post-remedial monitoring and care.
"Revolving Loan" means a Loan made to Borrowers pursuant to
Section 3.1(a).
"Rights to Payment" means all Accounts, General Intangibles, contract
rights, chattel paper, documents, instruments, letters of credit, bankers
acceptances and guaranties, and all present and future liens, security
interests, rights, remedies, title and interest in, to and in respect of
Accounts and other Collateral, and shall include without limitation, (a) rights
and remedies under or relating to guaranties, contracts of suretyship, letters
of credit and credit and other insurance related to the Collateral, (b) rights
of stoppage in transit, replevin, repossession, reclamation and other rights and
remedies of an unpaid vendor, lienor or secured party, (c) goods described in
invoices, documents, contracts or instruments with respect to, or otherwise
representing or evidencing, Accounts or other Collateral, including without
limitation, returned, repossessed and reclaimed goods, and (d) deposits by and
property of account debtors or other persons securing the obligations of account
debtors, monies, securities, credit balances, deposits, deposit accounts and
other property of Borrower now or hereafter held or received by or in transit to
Bank or any of its affiliates or at any other depository or other institution
from or for the account of Borrower, whether for safekeeping, pledge, custody,
transmission, collection or otherwise.
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"Stock" means shares of capital stock, beneficial or partnership
interests, participations or other equivalents (regardless of how designated) of
or in a corporation or other entity, whether voting or non-voting, and includes,
without limitation, common stock and preferred stock.
"Stock Equivalents" means all securities convertible into or exchangeable
for Stock and all warrants, options or other rights to purchase or subscribe for
any Stock, whether or not presently convertible, exchangeable or exercisable.
"Subsidiary" means any corporation, association, partnership, joint
venture or other business entity which is not a Borrower and of which more than
fifty percent (50%) of the voting stock or other equity interest is owned
directly or indirectly by Williams Parent or Ajay Parent.
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"Tangible Net Worth" means stockholders' equity less: (i) all intangible
assets (net of amortization); (ii) all treasury stock; and (iii) all obligations
due from stockholders, employees and/or affiliates.
"Term Loan I" has the meaning set forth in Section 3.3(a) hereof.
"Term Loan II" has the meaning set forth in Section 3.4(a) hereof.
"Tranche" means a collective reference to LIBOR Loans, the then-current
Fixed Rate Term with respect to all of which begin on the same date and end on
the same later date (whether or not such LIBOR Loans shall have originally been
made on the same day).
"Williams Parent" means Williams Controls, Inc., a Delaware
corporation.
SECTION 1.2 HEADINGS
Headings in the Loan Documents are for convenience of reference only and
are not part of the substance hereof or thereof.
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ARTICLE II. APPOINTMENT OF AGENT; JOINT AND SEVERAL LIABILITY
SECTION 2.1 APPOINTMENT OF AGENT
In order to facilitate and insure prompt and accurate communication
between Borrowers and Bank and to insure the efficient and effective
distribution of proceeds of the Loans, each Borrower hereby appoints Agent as
its agent to perform the functions of the Agent under the Loan Documents, to
take such actions and make such elections on such Borrower's behalf as are
delegated to the Agent in the Loan Documents and for the following purposes: (i)
communicating to and receiving communications from Bank; (ii) receiving all
proceeds of the Loans and making all decisions regarding the distribution of
such proceeds among the Borrowers as Agent, in the sole exercise of its
discretion, deems fair and appropriate; and (iii) making all decisions and
elections with respect to requests for advances of credit, issuance of Letters
of Credit and election of interest options.
SECTION 2.2 AUTHORIZED REPRESENTATIVES
On the Closing Date, and from time to time subsequent thereto at Agent's
option, Agent shall deliver to Bank a written notice in the form of Exhibit B
attached hereto, which designates by name one or more Authorized Representatives
and includes each of their respective specimen signatures (each, a "Notice of
Authorized Representatives"). Bank shall be entitled to rely conclusively on the
authority of each person designated as an Authorized Representative in the most
current Notice of Authorized Representatives delivered by Agent to Bank, to
request borrowings and select interest rate options hereunder, and to give to
Bank such other notices as are specified herein as being made through an
Authorized Representative, until such time as Agent has delivered to Bank, and
Bank has actual receipt of, a new written Notice of Authorized Representatives.
Bank shall have no duty or obligation to Borrowers to verify the authenticity of
any signature appearing on any Notice of Borrowing, Notice of Conversion or
Continuation or any other written notice from an Authorized Representative or to
verify the authenticity of any person purporting to be an Authorized
Representative giving any telephonic notice permitted hereby.
SECTION 2.3 JOINT AND SEVERAL LIABILITY; RIGHTS OF CONTRIBUTION
(a) Each Borrower states and acknowledges that: (i) pursuant to this
Agreement, Borrowers desire to utilize their borrowing potential on a
consolidated basis to the same extent possible if they were merged into a single
corporate entity; (ii) it has determined that it will benefit specifically and
materially from the advances of credit contemplated by this Agreement; (iii) it
is both a condition precedent to the obligations of Bank hereunder and a desire
of Borrowers that each Borrower execute and deliver to Bank this Agreement; and
(iv) Borrowers have requested and bargained for the structure and terms of the
credit contemplated by this Agreement.
(b) Each Borrower hereby irrevocably and unconditionally: (i) agrees that
it is jointly and severally liable to Bank for the full and prompt payment of
the Obligations and the performance by each Borrower of its obligations
hereunder in accordance with the terms of the Loan Documents; (ii) agrees to
fully and promptly perform all of its obligations under the Loan Documents with
respect to each advance of credit hereunder as if such advance had been made
directly to it; and (iii) agrees as a primary obligation to indemnify Bank on
demand for and against any loss incurred by Bank as a result of any of the
obligations of any one or more of Borrowers under the Loan Documents being or
becoming void, voidable, unenforceable or ineffective for any reason whatsoever,
whether or not known to Bank or any other Person, the amount of such loss being
the amount which Bank would otherwise have been entitled to recover from any one
or more of Borrowers. Each Borrower hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several
liability with each other Borrower with respect to the payment and performance
of all of the Obligations. If and to the extent that any Borrower fails to make
any payment with respect to the Obligations as and when due or to perform any of
its obligations in accordance with the terms of the Loan Documents, then in each
such event the other Borrowers will make such payment with respect to, or
perform, such obligations.
(c) The joint and several liability of each Borrower for the Obligations
shall be absolute and unconditional irrespective of and shall not be subject to
any reduction, limitation, impairment or termination for any reason, including,
without limitation, any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Obligations. Without limiting the generality of
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the foregoing, the obligations of each Borrower shall not be discharged or
impaired or otherwise affected by:
(i) any change in the manner, place or terms of payment or
performance and/or any change or extension of the time of payment or
performance of, renewal or alteration of, any Obligation, any security
therefor, or any liability incurred directly or indirectly in respect
thereof, or any rescission of, or amendment, waiver or other modification
of, or any consent to departure from any Loan Document, including any
increase in the Obligations resulting from the extension of additional
credit to any of Borrowers;
(ii) any sale, exchange, release, surrender, realization upon any
property at any time pledged or mortgaged to secure any of the
Obligations, and/or any offset against, or failure to perfect, or continue
the perfection of, any lien in any such property, or delay in the
perfection of any such lien, or any amendment or waiver of or consent to
departure from any other guaranty for any of the Obligations;
(iii) the failure of Bank to assert any claim or demand or to
enforce any right or remedy against any Borrower or any other Person under
the provisions of any Loan Document;
(iv) any settlement or compromise of any Obligation, any security
therefor or any liability incurred directly or indirectly in respect
thereof, and any subordination of the payment of any part thereof to the
payment of any obligation (whether due or not) of any other Borrower to
creditors of such other Borrower other than any other Borrower;
(v) any manner of application of any collateral for the Obligations
or proceeds thereof, to any of the Obligations, or any manner of sale or
other disposition of any such collateral for all or any of the Obligations
or any other assets of any Borrower;
(vi) any change, restructuring or termination of the
existence of any Borrower; or
(vii) any other agreement or circumstance of any nature whatsoever
that might in any manner or to any extent vary the risk of any Borrower,
or that might otherwise at law or in equity constitute a defense available
to, or a discharge of, the obligations of any Borrower, or a defense to,
or discharge of, any Borrower or any other Person relating to any of the
Obligations.
(d) The joint and several liability of Borrowers shall continue in full
force and effect notwithstanding any absorption, merger, amalgamation or any
other change whatsoever in the name, membership, constitution or place of
formation of any Borrower.
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(e) It is the intent of each Borrower that the indebtedness, obligations
and liability hereunder of no one of them be subject to challenge on any basis.
Accordingly, as of the date hereof, the liability of each Borrower under the
Loan Documents, together with all of its other liabilities to all Persons as of
the date hereof and as of any other date on which a transfer is deemed to occur
by virtue of this Agreement, calculated in an amount sufficient to pay its
probable net liabilities (including contingent liabilities) as the same become
absolute and matured ("Dated Liabilities") is, and is to be, less than the
amount of the aggregate of a fair valuation of its property as of such
corresponding date ("Dated Assets"). To this end each Borrower hereby (i) grants
to and recognizes in each other Borrower, ratably, rights of subrogation and
contribution in the amount, if any, by which the Dated Assets of such Borrower,
but for the aggregate of subrogation and contribution in its favor recognized
herein, would exceed the Dated Liabilities of such Borrower or, as the case may
be (ii) acknowledges receipt of and recognizes its right to subrogation and
contribution ratably from each of the other Borrowers in the amount, if any, by
which the Dated Liabilities of such Borrower, but for the aggregate of
subrogation and contribution in its favor recognized herein, would exceed the
Dated Assets of such Borrower. In recognizing the value of the Dated Assets and
the Dated Liabilities, it is understood that Borrowers will recognize, to at
least the same extent of their aggregate recognition of liabilities hereunder,
their rights to subrogation and contribution hereunder. It is a material
objective of this Section that each Borrower recognizes rights to subrogation
and contribution rather than be deemed to be insolvent (or in contemplation
thereof) by reason of its joint and several obligations hereunder.
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ARTICLE III. THE CREDITS
SECTION 3.1 REVOLVING LOANS
(a) On the terms and subject to the conditions contained in this
Agreement, Bank agrees to make loans (each a "Revolving Loan") to Borrowers from
time to time until the Maturity Date in an aggregate amount not to exceed at any
time outstanding the lesser of (i) $26,000,000 or (ii) the Borrowing Base.
Borrowers may from time to time borrow, partially or wholly repay their
outstanding Revolving Loans, and reborrow, subject to all the limitations, terms
and conditions contained herein.
(b) If at any time the Available Credit is negative, Borrowers, without
demand or notice, shall immediately repay that portion of the Revolving Loans
necessary to cause the Available Credit to be zero. Borrowers shall repay the
outstanding principal balance of the Revolving Loans, together with all accrued
and unpaid interest and related fees on the earlier of the Maturity Date or the
due date determined pursuant to Section 10.2.
(c) The Revolving Loans shall be evidenced by a Note payable to
the order of Bank.
(d) Agent, through one of the Authorized Representatives, shall request
each advance under Section 3.1(a) by giving Bank irrevocable written notice or
telephonic notice (confirmed promptly in writing), in the form of Exhibit C
attached hereto (each, a "Notice of Borrowing"), which specifies, among other
things:
(i) the principal amount of the requested advance;
(ii) the proposed date of borrowing, which shall be a
Business Day;
(iii) whether such advance is to be a Base Rate Loan or a
LIBOR Loan; and
(iv) if such advance is to be a LIBOR Loan, the length of the Fixed
Rate Term applicable thereto.
Each such Notice of Borrowing must be received by Bank not later than (i)
10:00 a.m. (San Francisco time) on the date of borrowing if a Base Rate Loan, or
(ii) at least three Business Days prior to the date of borrowing if a LIBOR
Loan. In addition to advances requested by Agent, advances of Revolving Loans
may be made automatically pursuant to certain arrangements made by Agent with
Bank and each such advance shall be a Base Rate Loan.
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(e) Bank shall have the right in its discretion to determine in Good Faith
which Accounts are eligible for the purpose of determining the Borrowing Base.
General criteria for Eligible Accounts may be established and revised from time
to time by Bank in Good Faith. Without limiting such discretion as to other
Accounts, the following Accounts shall not be Eligible Accounts:
(i) Accounts which do not consist of ordinary trade accounts
receivable owned by Borrower, payable in cash in United States dollars
(except for amounts payable in a foreign currency if the applicable
Borrower has entered into a currency hedge agreement with respect to such
foreign currency on terms acceptable to Bank) and arising out of the final
sale of Inventory or provision of services in the ordinary course of
Borrower's business as presently conducted by it;
(ii) Accounts with respect to which the services covered thereby have
not been rendered or the goods covered thereby have not been delivered to
the account debtor or its designee or with respect to which Borrower
failed to issue an original invoice at the agreed-upon purchase price to
the account debtor promptly after rendering such services or delivering
such goods to the account debtor;
(iii) Accounts which are not absolutely and unconditionally
payable;
(iv) Accounts with respect to which more than 150 days have elapsed
since the date of the original invoice applicable thereto;
(v) Accounts which are more than 60 days past due;
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(vi) Accounts with respect to which the account debtor is an affiliate
of Borrower or any officer, employee or agent of the account debtor is an
officer, employee or agent of or affiliated with Borrower directly or
indirectly by virtue of family membership, ownership, control, management
or otherwise;
(vii) Accounts with respect to which the account debtor is the United
States of America or any department, agency or instrumentality thereof,
except for those Accounts as to which Borrower has assigned its right to
payment thereof to Bank, and the assignment has been acknowledged,
pursuant to the Assignment of Claims Act of 1940, as amended (31 U.S.C.
ss.3727);
(viii) the chief executive office of the account debtor with respect to
such Account is not located in the United States of America, unless (a)
the account debtor has delivered to Borrower an irrevocable letter of
credit issued or confirmed by a bank satisfactory to Bank, sufficient to
cover such Account, in form and substance satisfactory to Bank and, if
required by Bank, the original of such letter of credit has been delivered
to Bank or Bank's agent and the issuer thereof notified of the assignment
of the proceeds of such letter of credit to Bank, (b) such Account is
subject to credit insurance payable to Bank issued by an insurer and on
terms and in an amount acceptable to Bank, (c) the account debtor resides
in a province of Canada which recognizes Bank's perfection and enforcement
rights as to Accounts by reason of the filing of a UCC-1 in the state of
the applicable Borrower's chief executive office, or (d) such Account is
otherwise acceptable in all respects to Bank (subject to such lending
formula with respect thereto as Bank may determine);
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(ix) Accounts for which the prospect of payment or performance by the
account debtor is or will be impaired in the Good Faith determination of
Bank;
(x) Accounts with respect to which Bank does not have a valid and
prior, fully perfected lien or which are not free of all liens or other
claims of all other Persons (except Permitted Liens);
(xi) Accounts with respect to which the account debtor is the subject
of bankruptcy or a similar insolvency proceeding, or has made an
assignment for the benefit of creditors, or whose assets have been
conveyed to a receiver or trustee, or who has failed or suspended or gone
out of business;
(xii) Accounts with respect to which the account debtor's obligation
to pay the Accounts is conditional upon the account debtor's approval;
(xiii) except as otherwise designated by Bank in a notice to Agent,
Accounts from an account debtor to the extent that the account debtor's
indebtedness to a Borrower (whether evidenced by such Accounts or
otherwise) exceeds an amount which is greater than 25% of the face amount
(less maximum discounts, credits and allowances which may be taken by or
granted to account debtors in connection therewith) of the then
outstanding Eligible Accounts owned by such Borrower;
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(xiv) Accounts owed by a particular account debtor if less than 75% of
the aggregate Accounts then owed to Borrower by that account debtor and
its affiliates constitute Eligible Accounts;
(xv) Accounts of a particular account debtor in excess of a credit
limit established as to that account debtor by Borrower or by Bank;
(xvi) Accounts which represent a prepayment or progress
payment or a partial payment under an installment contract;
(xvii) Accounts which are evidenced by a promissory note or
other instrument;
(xviii) Accounts with respect to which the terms or conditions
prohibit or restrict assignment or collection rights;
(xix) Accounts with respect to which the account debtor is located in
any jurisdiction requiring the timely filing by Borrower of a report or
document before such Account is created in order to bring suit or
otherwise enforce its remedies against such account debtor in the courts
or through any judicial process of such jurisdiction, unless Borrower has
filed, or is exempt from filing, such a report; and
(xx) Accounts with respect to which the account debtor is also a
creditor of Borrower, but only to the extent of the amount owed by
Borrower to such account debtor if such amount is less than the amount of
all Accounts with respect to such account debtor which otherwise would be
Eligible Accounts.
Bank shall have the right, but not the duty, to declare particular
accounts ineligible. The fact that Bank has not declared a particular account
ineligible shall not be deemed to be a determination or representation by Bank
as to the creditworthiness or financial condition of any account debtor. Because
of banking relationships between account debtors of Borrower and Bank, Bank may
have information about the creditworthiness of such account debtors; however,
Bank shall have no duty to Borrowers to disclose information it may have about
any Borrower's account debtors and Borrowers shall have no right to rely upon
any action or inaction of Bank concerning the creditworthiness or financial
condition of Borrower's account debtors. BORROWERS HEREBY COVENANT NOT TO SUE
AND TO HOLD HARMLESS BANK, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS,
SUCCESSORS AND ASSIGNS FOR AND FROM ANY AND ALL DAMAGES, LIABILITY, OR CLAIMS OF
LIABILITY, WHETHER KNOWN OR UNKNOWN, OF WHATSOEVER NATURE ARISING OUT OF OR
BASED IN WHOLE OR IN PART UPON BANK'S FAILURE TO DISCLOSE UNFAVORABLE
INFORMATION ABOUT AN ACCOUNT DEBTOR OF BORROWER'S TO BORROWERS, OR BANK'S
FAILURE TO TREAT AS INELIGIBLE THE ACCOUNT OF AN ACCOUNT DEBTOR OF BORROWER
ABOUT WHOM BANK HAS UNFAVORABLE INFORMATION.
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(f) Bank shall have the right in its discretion to determine in Good Faith
which Inventory is eligible for the purpose of determining the Borrowing Base.
Without limiting such discretion as to other Inventory, the following Inventory
shall in any event not constitute Eligible Inventory:
(i) finished goods which are not held by Borrower for sale as
Inventory in the ordinary course of Borrower's business as presently
conducted by it or which are obsolete, not in good condition, not of
merchantable quality or not saleable in the ordinary course of Borrower's
business or which are subject to defects which would affect their market
value;
(ii) work in process;
(iii) Inventory which Bank in the Good Faith exercise of its
discretion determines to be unacceptable due to age, type, category or
quantity;
(iv) Inventory with respect to which Bank, does not have a valid and
prior, fully perfected Lien and which is not free of all other Liens,
other than Permitted Liens;
(v) Inventory in the possession of a warehouseman or other bailee if
Bank has not received a bailee letter acceptable to Bank from such
warehouseman or bailee; and
(vi) Inventory located on premises leased by Borrower if Bank has not
received a landlord's waiver acceptable to Bank with respect to such
premises.
SECTION 3.2 LETTER OF CREDIT FACILITY
(a) On the terms and subject to the conditions contained in this
Agreement, Bank agrees promptly to issue one or more Letters of Credit at the
request of Agent for the account of Borrowers from time to time until 30 days
prior to the Maturity Date; provided, however, that Bank shall not issue any
Letter of Credit if:
(i) any order, judgment or decree of any Governmental Authority or
arbitrator of which Bank is aware shall purport by its terms to enjoin or
restrain Bank from issuing such Letter of Credit or any Governmental Rule
applicable to Bank or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over Bank
shall prohibit, or request that Bank refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or shall impose
upon Bank with respect to such Letter of Credit any restriction or reserve
or capital requirement (for which Bank is not otherwise compensated) not
in effect on the date hereof or result in any loss, cost or expense which
(A) was not applicable, in effect or known to Bank on the Closing Date and
which Bank in Good Faith deems material to it, and (B) the reimbursement
of which is not provided for hereunder;
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(ii) any of the applicable conditions contained in
Article VII is not then satisfied;
(iii) after giving effect to the issuance of such Letter of
Credit, the Letter of Credit Obligations exceed $4,000,000;
(iv) the amount of the Letter of Credit requested exceeds the
Available Credit; or
(v) fees due in connection with a requested issuance have
not been paid.
(b) In no event shall the expiry date of any Letter of Credit be more than
(A) one year, in the case of a Letter of Credit that is a standby letter of
credit, or (B) 180 days, in the case of a Letter of Credit that is a commercial
(documentary) letter of credit, after the date of issuance thereof, but in no
event shall the expiry date of any Letter of Credit, whether by virtue of
automatic renewal or otherwise, fall after 10 days prior to the Maturity Date.
(c) Prior to the issuance of each Letter of Credit, Borrowers shall have
delivered to Bank, if requested by Bank, a Letter of Credit Agreement, signed by
Borrowers, and such other documents or items as Bank may require pursuant to the
terms thereof.
(d) Subject to the terms and conditions of this Section 3.2 and provided
that the applicable conditions set forth in Article VII have been satisfied,
Bank shall, on the requested date, issue a Letter of Credit on behalf of
Borrower in accordance with the applicable letter of credit request and Bank's
usual and customary business practices and in a final form reasonably
satisfactory to Borrower.
(e) If Bank makes any payment under any Letter of Credit, such payment
shall be deemed to be and shall constitute a Base Rate Loan made by Bank to
Borrowers pursuant to Section 3.1(a).
SECTION 3.3 TERM LOAN I
(a) On the terms and subject to the conditions contained in this
Agreement, Bank agrees to make a term loan ("Term Loan I") to Borrowers in the
amount of $4,430,000. Borrowers shall repay the principal of Term Loan I in
monthly principal payments of $52,738.10 each on the first day of each month
beginning September 1, 1997. Borrowers shall repay the outstanding principal
balance of Term Loan I, together with all accrued and unpaid interest and
related fees on the earlier of the Maturity Date or the due date determined
pursuant to Section 10.2.
(b) Term Loan I shall be evidenced by a Note payable to the order
of Bank.
(c) Borrowers may prepay the portion of the Term Loan I which is a Base
Rate Loan in whole or in part, from time to time. Each partial prepayment shall
be applied to the principal balance of Term Loan I in inverse order of maturity.
SECTION 3.4 TERM LOAN II
(a) On the terms and subject to the conditions contained in this
Agreement, Bank agrees to make a term loan ("Term Loan II") to Borrowers in the
amount of $1,000,000. Borrowers shall repay the principal of Term Loan II as
follows: (i) in monthly principal payments of $41,667 each on the first day of
each month beginning September 1, 1997; (ii) on or before January 31 of each
year, an amount equal to 50% of Williams Parent's consolidated Excess Cash Flow
for the immediately preceding fiscal year of Williams Parent; (iii) on or before
April 30 of each year, an amount equal to 50% of Ajay Parent's consolidated
Excess Cash Flow for the immediately preceding fiscal year of Ajay Parent; (iv)
within three Business Days of the receipt by Borrower of additional equity
(other than equity contributed by another Borrower), an amount equal to the
amount of (or fair market value of) such additional equity; (v) upon the receipt
thereof, an amount equal to the net proceeds from the sale or liquidation of
Kenco/Williams, Inc. or of substantially all of its assets after deducting from
such proceeds an amount equal to the portion of the Revolving Loans and Term
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Loan I based on the assets sold (or otherwise transferred) and applying such
amount to the reduction of the Revolving Loans and Term Loan I; and (vi) upon
the receipt thereof, an amount equal to the net proceeds from the sale of any
asset out of the ordinary course of business after deducting from such proceeds
an amount equal to the portion of the Revolving Loans, Term Loan I and Real
Estate Loan based on the assets sold and applying such amount to the reduction
of the Revolving Loans, Term Loan I and Real Estate Loan. Borrowers shall repay
the outstanding principal balance of Term Loan II, together with all accrued and
unpaid interest and related fees on the earlier of June 1, 1999 or the due date
determined pursuant to Section 10.2.
(b) Term Loan II shall be evidenced by a Note payable to the order
of Bank.
(c) Borrowers may prepay Term Loan II in whole or in part, from time to
time. Each partial prepayment shall be applied to the principal balance of Term
Loan II in inverse order of maturity.
SECTION 3.5 REAL ESTATE LOAN
(a) On the terms and subject to the conditions contained in this
Agreement, Bank agrees to make a term loan ("Real Estate Loan") to Borrowers in
the amount of $2,658,000. Borrowers shall repay the principal of Real Estate
Loan in monthly principal payments of $11,075 each on the first day of each
month beginning September 1, 1997. Borrowers shall repay the outstanding
principal balance of Real Estate Loan, together with all accrued and unpaid
interest and related fees on the earlier of the Maturity Date or the due date
determined pursuant to Section 10.2.
(b) Real Estate Loan shall be evidenced by a Note payable to the
order of Bank.
(c) Borrowers may prepay the portion of the Real Estate Loan which is a
Base Rate Loan in whole or in part, from time to time. Each partial prepayment
shall be applied to the principal balance of Real Estate Loan in inverse order
of maturity.
SECTION 3.6 INTEREST/FEES
(a) Interest. The outstanding principal balance of each Revolving Loan
which is a Base Rate Loan shall bear interest at a fluctuating rate per annum
equal to the aggregate of the Base Rate in effect from time to time plus 50
basis points. The outstanding principal balance of each Revolving Loan which is
a LIBOR Loan shall bear interest at a fixed rate per annum determined by Bank to
be equal to the aggregate of LIBOR in effect on the first day of the applicable
Fixed Rate Term plus 275 basis points. The outstanding principal balance of each
portion of Term Loan I and Real Estate Loan which is a Base Rate Loan shall bear
interest at a fluctuating rate per annum equal to the aggregate of the Base Rate
in effect from time to time plus 75 basis points. The outstanding principal
balance of that portion of Term Loan I and Real Estate Loan which is a LIBOR
Loan shall bear interest at a fixed rate per annum determined by Bank to be
equal to the aggregate of LIBOR in effect on the first day of the applicable
Fixed Rate Term plus 300 basis points. The outstanding principal balance of Term
Loan II shall bear interest at a fluctuating rate per annum equal to the
aggregate of the Base Rate in effect from time to time plus 100 basis points.
The foregoing notwithstanding, the rate of interest applicable at all times
during the continuation of an Event of Default shall be the applicable rate set
forth above plus an additional 200 basis points. All fees, expenses and other
amounts not paid when due shall bear interest (from the date due until paid) at
a fluctuating rate per annum equal to the Base Rate in effect from time to time
plus 300 basis points.
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(b) Letter of Credit Fees. Borrowers shall pay to Bank fees upon the
issuance or amendment of each Letter of Credit and upon the payment by Bank of
each draft under any Letter of Credit determined in accordance with Bank's
Commercial Finance Division's standard fees and charges in effect at the time
any Letter of Credit is issued or amended or any draft is paid. In addition,
Borrowers shall pay to Bank a fee equal to 1.50% per annum on the average daily
amount available to be drawn during each month under outstanding Letters of
Credit, which fee shall be due and payable on the first day of each month.
(c) Servicing Fee. Borrowers shall pay to Bank monthly a servicing fee of
$7,500 in respect of Bank's services for each month any of the Obligations are
outstanding provided, however, such fee shall be $10,000 if as of the date such
fee is due Borrowers are required to submit a collateral activity report on a
daily basis, and provided, further, such fee shall be prorated for the first
month if the Closing Date is not the first day of a month and the last month if
all Obligations are not paid on the last day of a month. Such fee shall be fully
earned as of and payable in advance on the Closing Date and on the first day of
each month hereafter.
(d) Unused Revolver Fee. On the first day of each month and on the
Maturity Date, Borrowers shall pay Bank a fee equal to 0.25% per annum
multiplied by the average daily amount during the immediately preceding month
(or if the Maturity Date is not on the first day of a month, then during the
month of the Maturity Date) by which the aggregate of the outstanding principal
amount of the Revolving Loans and the Letter of Credit Obligations was less than
$26,000,000.
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(e) Closing Fee. Borrowers shall pay to Bank a closing fee of
$390,880, which fee shall be fully earned as of the Closing Date and
payable as follows: (i) $190,880 on the Closing Date and (ii) $50,000 per
month on the first day of September, October, November and December, 1997.
(f) Computation. All interest and per annum fees shall be computed on the
basis of a 360-day year, actual days elapsed. Interest shall be payable monthly,
in arrears, on the first day of each month, and, in addition, interest on LIBOR
Loans shall be paid on the last day of each Fixed Rate Term.
SECTION 3.7 INTEREST OPTIONS
(a) Election. Subject to the requirement that each LIBOR Loan be in a
minimum amount of $3,000,000 and in integral multiples of $100,000, (i) except
as otherwise provided herein, at any time when a Default is not continuing
Borrowers may convert all or any portion of a Base Rate Loan to a LIBOR Loan for
a Fixed Rate Term designated by Agent, and (ii) at any time Borrowers may
convert all or a portion of a LIBOR Loan at the end of the Fixed Rate Term
applicable thereto to a Base Rate Loan or, if no Default is continuing, to a
LIBOR Loan for a new Fixed Rate Term designated by Agent. If Borrowers have not
made the required interest rate conversion or continuation election prior to the
last day of any Fixed Rate Term, Borrowers shall be deemed to have elected to
convert such LIBOR Loan to a Base Rate Loan.
(b) Notice to Bank. Agent, through one of the Authorized Representatives,
shall request each interest rate conversion or continuation by giving Bank
irrevocable written notice or telephonic notice (confirmed promptly in writing),
in the form of Exhibit E attached hereto (a "Notice of Conversion or
Continuation"), which specifies, among other things:
(i) the Loan to which such Notice of Conversion or
Continuation applies;
(ii) the principal amount which is the subject of such
conversion or continuation;
(iii) the proposed date of such conversion or continuation,
which shall be a Business Day;
(iv) and if such Notice pertains to a LIBOR interest selection, the
length of the applicable Fixed Rate Term.
Any such Notice of Conversion or Continuation must be received by Bank not
later than (i) 10:00 a.m. (San Francisco time) on the effective date of any Base
Rate interest selection, and (ii) at least three Business Days prior to the
effective date of any LIBOR interest selection.
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SECTION 3.8 CHANGE OF CIRCUMSTANCES
(a) Inability to Determine Rate. If Bank at any time shall determine that
adequate and reasonable means do not exist for ascertaining LIBOR or that LIBOR
does not adequately reflect the cost to Bank of making or maintaining LIBOR
interest rates hereunder, then Bank shall give telephonic notice (promptly
confirmed in writing) to Agent of such determination. If such notice is given
and until such notice has been withdrawn in writing by Bank, then no LIBOR
interest option may be selected by Borrowers.
(b) LIBOR Illegality; Termination of Commitment. Notwithstanding any other
provisions herein, if any Change of Law shall make it unlawful for Bank (i) to
make a LIBOR interest rate available, or (ii) to maintain LIBOR interest rates
hereunder, then, in the former event, any obligation of Bank hereunder to make
available such unlawful LIBOR interest rate shall forthwith be canceled, and in
the latter event, any such unlawful LIBOR interest rate then outstanding shall
at the option of Bank be converted so that interest is determined in relation to
the Base Rate pursuant to the terms of this Agreement; provided however, if any
such Change in Law shall permit a LIBOR interest rate until the expiration of
the Fixed Rate Term relating thereto, then such permitted LIBOR interest rate
shall continue as such until the end of such Fixed Rate Term. If as a result of
this Section a LIBOR interest rate is converted to a lower interest rate,
Borrowers shall pay to Bank immediately upon demand such amount or amounts as
may be necessary to compensate Bank for any loss in connection therewith.
(c) Illegality; Compensation. Upon the occurrence of any event described
in Section 3.8(b) hereof, Borrowers shall pay to Bank, immediately upon demand,
such amount or amounts as may be necessary to compensate Bank for any fines,
fees, changes, penalties or other amounts payable by Bank as a result thereof
and which are attributable to LIBOR interest rates made available to Borrowers
hereunder. In determining which amounts payable by Bank and/or losses incurred
by Bank are attributable to LIBOR interest rates made available to Borrowers
hereunder, any reasonable allocation made by Bank among its operations shall, in
the absence of manifest error, be conclusive and binding upon Borrowers.
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(d) Change of Law; Compensation. If any Change of Law
(i) shall subject Bank to any tax, duty or other charge with respect
to any LIBOR interest rate, or shall change the basis of taxation of
payments by Borrowers to Bank of principal, interest, fees or any other
amount payable hereunder (except for changes in the rate of taxation on
the overall net income of imposed by the jurisdiction of Bank's
incorporation or by any jurisdiction in which its applicable lending
office is located); or
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances or loans
by, or any other acquisition of funds by Bank; or
(iii) shall impose on Bank any other condition;
and the effect of any of the foregoing is to increase the cost to Bank of
making, renewing or maintaining any LIBOR Loan hereunder or to reduce any amount
receivable by Bank in connection therewith, then Borrowers shall, immediately
upon demand, pay to Bank such amount or amounts as may be necessary to reimburse
Bank for such increased costs or to compensate Bank for such reduced amounts. A
certificate as to the amount of such increased costs or reduced amounts,
delivered by Bank to Agent shall, in the absence of manifest error, be
conclusive and binding on Borrowers for all purposes.
(e) Capital Requirements; Compensation. If Bank shall have determined that
any Change of Law regarding capital adequacy has or shall have the effect of
reducing the rate of return on the capital of Bank (or any entity controlling
Bank) as a consequence of Bank's obligations hereunder to a level below that
which Bank or such entity would have achieved but for such Change of Law (taking
into consideration Bank's or such entity's policies with respect to capital
adequacy), by an amount deemed by Bank to be material, then from time to time,
within fifteen days after demand by Bank, Borrowers shall pay to Bank or such
entity such additional amounts as shall compensate Bank or such entity for such
reduction. Any such request by Bank under this Section shall set forth the basis
of the calculation of such additional amounts and shall, in the absence of
manifest error, be conclusive and binding on Borrowers for all purposes.
SECTION 3.9 LIBOR PREPAYMENTS; FUNDING LOSS INDEMNIFICATION
(a) Borrowers may prepay the principal of any portion of a Tranche at any
time and in the minimum amount of $3,000,000. In consideration of Bank providing
this prepayment option to Borrowers or if any such portion of a LIBOR Loan shall
become due and payable at any time prior to the last day of the Fixed Rate Term
applicable thereto by acceleration or otherwise, Borrowers shall pay to Bank
immediately upon demand a fee which is the sum of the discounted monthly
difference for each month from the month of prepayment through the month in
which such Fixed Rate Term matures, calculated as follows for each such month:
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(i) determine the amount of interest which would have accrued each month
on the amount prepaid at the interest rate applicable to such amount
had it remained outstanding until the last day of the Fixed Rate
Term applicable thereto;
(ii) subtract from the amount determined in (i) above the amount of
interest which would have accrued for the same month on the amount
prepaid for the remaining term of such Fixed Rate Term at LIBOR in
effect on the date of prepayment for new loans made for such term
and in a principal amount equal to the amount prepaid; and
(iii) if the result obtained in (ii) for any month is greater than zero,
discount that difference by LIBOR used in (ii) above.
Borrowers acknowledge that prepayment of such amount may result in Bank
incurring additional costs, expenses and/or liabilities, and that it is
difficult to ascertain the full extent of such costs, expenses and/or
liabilities. Borrowers, therefore, agree to pay the above-described prepayment
fee and agree that said amount represents a reasonable estimate of the
prepayment costs, expenses and/or liabilities of Bank. If Borrowers fail to pay
any prepayment fee when due, the amount of such prepayment fee shall thereafter
bear interest until paid at a rate per annum equal to the Base Rate plus 300
basis points.
(b) If Borrowers shall (a) fail to borrow the full amount set forth in any
Notice of Borrowing which has been delivered to Bank (whether as a result of the
failure to satisfy any applicable conditions or otherwise), or (b) fail to
convert or continue at the LIBOR interest option any portion of a Loan in
accordance with a Notice of Conversion or Continuation delivered to Bank
(whether as a result of the failure to satisfy any applicable conditions or
otherwise), Borrowers shall, upon demand by Bank, reimburse Bank and hold Bank
harmless for all costs and losses incurred by Bank as a result of such
repayment, prepayment or failure. Borrowers understand that such costs and
losses may include, without limitation, losses incurred by Bank as a result of
funding and other contracts entered into by Bank to fund any LIBOR Loan. Bank
shall deliver to Agent a certificate setting forth the amount of costs and
losses for which demand is made. Such certificate shall, in the absence of
manifest error, be conclusive and binding on Borrowers as to the amount of such
loss for all purposes. This Section 3.9(b) shall survive the termination of this
Agreement.
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ARTICLE IV. COLLECTION AND ADMINISTRATION
SECTION 4.1 CASH COLLATERAL ACCOUNT
(a) Cash Collateral Account. Borrower shall, at Borrower's expense
and in the manner requested by Bank from time to time, direct that remittances
and all other collections and proceeds of Accounts and other Collateral shall be
deposited into a lock box account maintained in Bank's name. In connection
therewith, Borrower shall execute such lockbox agreement(s) as Bank shall
require. Borrower shall maintain with Bank, and Borrower hereby grants to Bank a
security interest in, a non-interest bearing deposit account over which Borrower
shall have no control ("Cash Collateral Account") and into which the proceeds of
all Borrower's Rights to Payment shall be deposited immediately upon their
receipt.
(b) Calculations. For purposes of calculating interest on the Loans,
such payments or other funds received will be applied (conditional upon final
collection) as a principal reduction one Business Day following the date of
receipt by Bank's Commercial Finance Division of the inter-branch advice of
deposit that such payments or other funds have been deposited in the Cash
Collateral Account. For purposes of calculating the amount of the Revolving
Loans available to Borrower such payments will be applied (conditional upon
final collection) to the Revolving Loans on the Business Day of receipt by the
Commercial Finance Division, if such advices are received within sufficient time
(in accordance with Bank's usual and customary practices as in effect from time
to time) to credit Borrower's loan account on such day, and if not, then on the
next Business Day.
(c) Immediate Deposit. Borrowers and all of their affiliates,
subsidiaries, shareholders, directors, employees or agents shall, acting as
trustee for Bank, receive, as the property of Bank, any monies, checks, notes,
drafts, or any other payment relating to and/or proceeds of Accounts or other
Collateral which come into their possession or under their control and
immediately upon receipt thereof, shall deposit or cause the same to be
deposited in the Cash Collateral Account, or remit the same or cause the same to
be remitted, in kind, to Bank. In no event shall the same be commingled with
Borrower's own funds.
SECTION 4.2 STATEMENTS
Bank shall render to Agent each month a statement setting forth the
balance in the loan account(s) maintained by Bank for Borrowers pursuant to this
Agreement, including principal, interest, fees, costs and expenses. Each such
statement shall be subject to subsequent adjustment by Bank but shall, absent
manifest errors or omissions, be considered correct and deemed accepted by
Borrowers and conclusively binding upon Borrowers as an account stated except to
the extent that Bank receives a written notice from Agent of any specific
exceptions thereto within thirty (30) days after the date such statement has
been mailed by Bank. Until such time as Bank shall have rendered to Borrower a
written statement as provided above, the balance in the loan account(s) shall be
presumptive evidence of the amounts due and owing to Bank by Borrowers.
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SECTION 4.3 PAYMENTS
All amounts due under any of the Loan Documents shall be payable to the
Cash Collateral Account as provided in Section 4.1 hereof or such other place as
Bank may designate from time to time. Whenever any payment due hereunder shall
fall due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall be included in
the computation of interest or fees, as the case may be. Bank may apply payments
received or collected from Borrower or for the account of Borrower (including,
without limitation, the monetary proceeds of collections or of realization upon
any Collateral) to such of the Loans, whether or not then due, in such order and
manner as Bank determines. At Bank's option, all principal, interest, fees,
costs, expenses and other charges provided for in this Agreement or the other
Loan Documents may be charged directly to the loan account(s) of Borrower.
Borrower shall make all payments due Bank free and clear of, and without
deduction or withholding for or on account of, any setoff, counterclaim,
defense, duties, taxes, levies, imposts, fees, deductions, withholding,
restrictions or conditions of any kind. If after receipt of any payment of, or
proceeds of Collateral applied to the payment of, any of the Obligations Bank is
required to surrender or return such payment or proceeds to any person or entity
for any reason, then the Obligations intended to be satisfied by such payment or
proceeds shall be reinstated and continue and this Agreement shall continue in
full force and effect as if such payment or proceeds had not been received by
Bank. Borrower shall be liable to pay to Bank, and does hereby indemnify and
hold Bank harmless for the amount of any payments or proceeds surrendered or
returned. This Section 4.3 shall remain effective notwithstanding any contrary
action which may be taken by Bank in reliance upon such payment or proceeds.
This Section 4.3 shall survive the payment of the Obligations and the
termination of this Agreement.
SECTION 4.4 USE OF PROCEEDS
Borrower shall use the initial proceeds of the Loans provided by Bank to
Borrower hereunder only for: (a) payments to each of the persons listed in the
disbursement order furnished by Borrower to Bank on or about the date hereof;
and (b) costs, expenses and fees in connection with the preparation,
negotiation, execution and delivery of this Agreement and the other Loan
Documents. All other Loans made or Letters of Credit provided by Bank to
Borrower pursuant to the provisions hereof shall be used by Borrower only for
general operating, working capital and other proper corporate purposes of
Borrower not otherwise prohibited by the terms of this Agreement. None of the
proceeds will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin security or for the purposes of reducing or retiring any
indebtedness which was originally incurred to purchase or carry any margin
security or for the any other purpose which might cause any of the Loans to be
considered a "purpose credit" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System, as amended. The foregoing
notwithstanding, up to $375,000 of the proceeds of the Loans may be used by
Agent as a loan by Agent to Williams Controls, Inc. Employee Stock Ownership
Plan and Trust ("Trust"); provided that Agent gives Bank ten days' advance
notice of its intention to make such loan and delivers to Bank, with such
notice, an opinion from ESOP counsel to the Trust reasonably acceptable to Bank,
including, without limitation, the opinions set forth on Exhibit H attached
hereto.
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ARTICLE V. SECURITY
SECTION 5.1 GRANT OF SECURITY INTEREST
Borrowers hereby grant to Bank a security interest in all of the
Collateral as security for the full and prompt payment in cash and performance
of the Obligations.
SECTION 5.2 PERFECTION; DUTY OF CARE
(a) Until all the Obligations have been fully satisfied and paid in cash
Borrowers shall perform all steps requested by Bank to perfect, maintain and
protect Bank's security interest in the Collateral, including, without
limitation, executing and filing financing and continuation statements in form
and substance satisfactory to Bank.
(b) Bank shall have the right at all times, and from time to time, to
contact Borrower's account debtors to verify Rights to Payment.
(c) Borrowers shall pay or cause to be paid all taxes, assessments and
governmental charges levied or assessed or imposed upon or with respect to the
Collateral or any part thereof; provided, however, Borrowers shall not be
required to pay any tax if the validity and/or amount thereof is being contested
in good faith and by appropriate and lawful proceedings promptly initiated and
diligently conducted of which Agent has given prior notice to Bank and for which
appropriate reserves have been established and so long as levy and execution
have been and continue to be stayed. If Borrowers fail to pay or so contest and
reserve for such taxes, assessments and governmental charges, Bank may (but
shall not be required to) pay the same and add the amount of such payment to the
principal of the Revolving Loan.
(d) In order to protect or perfect the security interest which Bank is
granted hereunder, Bank may discharge any Lien which is not a Permitted Lien or
bond the same, pay for any insurance which Borrowers have failed to maintain as
required by this Agreement, maintain guards, pay any service bureau, or obtain
any record and add the same to the principal of the Revolving Loan.
(e) Bank shall have no duty of care with respect to the Collateral, except
that Bank shall exercise reasonable care with respect to the Collateral in
Bank's custody, but shall be deemed to have exercised reasonable care if such
property is accorded treatment substantially equal to that which Bank accords
its own property, or if Bank takes such action with respect to the Collateral as
the Agent shall request in writing, provided that no failure to comply with any
such request nor any omission to do any such act requested by Agent shall be
deemed a failure to exercise reasonable care. Bank's failure to take steps to
preserve rights against any parties or property shall not be deemed to be a
failure to exercise reasonable care with respect to the Collateral in Bank's
custody.
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SECTION 5.3 ADDITIONAL SECURITY
As additional security for the full and prompt payment in cash and
performance of the Obligations, certain Borrowers have granted to Bank a first
mortgage lien on certain real property and improvements thereon.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
Each Borrower makes the following representations and warranties with
respect to itself to Bank, subject to the exceptions set forth on the Disclosure
Schedule, which representations and warranties shall survive the execution of
this Agreement and shall continue in full force and effect until the full and
final payment in cash and satisfaction and discharge of all Obligations:
SECTION 6.1 LEGAL STATUS
It is a corporation, duly organized and existing and in good standing
under the laws of the jurisdiction of its incorporation, and is qualified or
licensed to do business (and is in good standing as a foreign corporation, if
applicable) in all jurisdictions in which such qualification or licensing is
required or in which the failure to so qualify or to be so licensed could have a
Material Adverse Effect.
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SECTION 6.2 OWNERSHIP; SUBSIDIARIES
(a) All of its outstanding capital stock has been validly issued, is fully
paid and nonassessable. On the date hereof (i) no authorized but unissued
shares, no treasury shares and no other outstanding shares of its capital stock
are subject to any option, warrant, right of conversion or purchase or any
similar right granted by it, and (ii) it is not a party to any agreement or
understanding with respect to the voting, sale or transfer of any shares of its
capital stock.
(b) As of the Closing Date, it has no Subsidiaries and does not own or
hold, directly or indirectly, any capital stock or equity security of, or any
equity interest in, any Person.
(c) Except for Williams Parent and Ajay Parent, it is a direct or indirect
subsidiary of either Williams Parent or Ajay Parent.
SECTION 6.3 AUTHORIZATION AND VALIDITY
The Loan Documents have been duly authorized and the performance by it of
its obligations under the Loan Documents constitute a proper corporate purpose
under all applicable law. The Loan Documents, upon their execution and delivery
in accordance with the provisions hereof, will constitute legal, valid and
binding agreements and obligations of it enforceable against it in accordance
with their respective terms.
SECTION 6.4 NO VIOLATION
The execution, delivery and performance by it of each of the Loan
Documents do not violate or contravene any provision of its Articles of
Incorporation or By-Laws and do not violate any Governmental Rule or result in a
breach of or constitute a default under any contract, obligation, indenture or
other instrument to which it or any subsidiary of it is a party or by which it
may be bound, which violation, breach or default would have a Material Adverse
Effect.
SECTION 6.5 NO CLAIMS
There are no pending, or to the best of its knowledge threatened, actions,
claims, investigations, suits or proceedings before any governmental authority,
arbitrator, court or administrative agency which could have a Material Adverse
Effect.
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SECTION 6.6 CORRECTNESS OF FINANCIAL STATEMENTS
(a) The consolidated financial statements of Williams Parent dated as of
April 30, 1997, heretofore delivered by Agent to Bank, (a) present fairly the
financial condition of Persons reported therein; (b) disclose all liabilities of
Borrowers that are required to be reflected or reserved against under GAAP,
whether liquidated or unliquidated, fixed or contingent; and (c) have been
prepared in accordance with GAAP. Except as disclosed to Bank pursuant to
Section 8.4, since the date of such financial statements there has been no
change or changes which have resulted in a Material Adverse Effect.
(b) The consolidated financial statements of Ajay Parent dated as of April
30, 1997, heretofore delivered by Agent to Bank, (a) present fairly the
financial condition of Persons reported therein; (b) disclose all liabilities of
Borrowers that are required to be reflected or reserved against under GAAP,
whether liquidated or unliquidated, fixed or contingent; and (c) have been
prepared in accordance with GAAP. Except as disclosed to Bank pursuant to
Section 8.4, since the date of such financial statements there has been no
change or changes which have resulted in a Material Adverse Effect.
SECTION 6.7 INCOME TAX RETURNS
It does not have any knowledge of any pending assessments or adjustments
of any income tax payable by it with respect to any year the payment of which
would have a Material Adverse Effect.
SECTION 6.8 NO SUBORDINATION
There is no agreement, indenture, contract or instrument to which it or
any Subsidiary is a party or by which it or any Subsidiary may be bound that
requires the subordination in right of payment of any of its obligations subject
to this Agreement to any other obligation of it or such Subsidiary.
SECTION 6.9 ERISA
It is in compliance in all material respects with the applicable
provisions of ERISA. It has not violated any provision of any Plan maintained or
contributed to by it in a manner that could result in a Material Adverse Effect.
No "reportable event" (as defined in Title IV of ERISA) has occurred and is
continuing with respect to any Plan initiated by it.
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SECTION 6.10 OTHER OBLIGATIONS
It is not in default with respect to any of its Indebtedness or any of its
material Contractual Obligations.
SECTION 6.11 ENVIRONMENTAL MATTERS
It and each Subsidiary of it is in compliance in all material respects
with all Environmental Laws applicable to it, other than such noncompliance as
in the aggregate will not have a Material Adverse Effect. None of it or any
Subsidiary of it has received notice that it is the subject of any federal or
state investigation evaluating whether any Remedial Action is needed, except for
such notices received which in the aggregate do not refer to Remedial Actions
which would reasonably be expected to result in a Material Adverse Effect. There
have been no Releases by it or a Subsidiary of it which could reasonably be
expected to result in a Material Adverse Effect.
SECTION 6.12 LIENS
Borrowers have good, indefeasible, and merchantable title to and ownership
of the Collateral, free and clear of all Liens, except Permitted Liens. There
are no Liens of any nature whatsoever on any of its properties other than
Permitted Liens.
SECTION 6.13 NO BURDENSOME RESTRICTIONS; NO DEFAULTS
(a) It is not is a party to any Contractual Obligation the compliance with
which would have a Material Adverse Effect or the performance of which, either
unconditionally or upon the happening of an event, will result in the creation
of a Lien (other than Permitted Liens) on the property or assets of Borrower.
(b) No Default has occurred and is continuing.
(c) There is no Governmental Rule the compliance with which by it is
reasonably likely to have a Material Adverse Effect.
SECTION 6.14 NO OTHER VENTURES
It is not engaged in any joint venture or partnership with any other
Person.
SECTION 6.15 INVESTMENT COMPANY ACT
It is not an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended.
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SECTION 6.16 INSURANCE
All current policies of insurance of any kind or nature owned by or issued
to it, including, without limitation, policies of fire, theft, product
liability, public liability, property damage, other casualty, employee fidelity,
workers' compensation and employee health and welfare insurance, are in full
force and effect and are of a nature and provide such coverage as is sufficient
and as is customarily carried by companies of its size and character. It has no
reason to believe that it will be unable to comply with Section 8.5.
SECTION 6.17 LABOR MATTERS
(a) There are no strikes, work stoppages, slowdowns or lockouts pending
or, to its knowledge, threatened, against or involving Borrower, other than
those which in the aggregate have no reasonable likelihood of having a Material
Adverse Effect.
(b) There are no arbitrations or grievances pending against or involving
it, nor to its knowledge are there any arbitrations or grievances threatened
involving Borrower, other than those which, in the aggregate, have no reasonable
likelihood of having a Material Adverse Effect.
(c) As of the date hereof it is not a party to, and has no
obligations under, any collective bargaining agreement.
(d) There is no organizing activity involving it pending or, to its
knowledge, threatened, by any labor union or group of employees, other than
those which in the aggregate have no reasonable likelihood of having a Material
Adverse Effect. There are no representation proceedings pending against it or,
to its knowledge, threatened with the National Labor Relations Board, and no
labor organization or group of its employees has made a pending demand on it for
recognition, other than those which in the aggregate have no reasonable
likelihood of having a Material Adverse Effect.
(e) There are no unfair labor practice charges, grievances or complaints
pending or in process or, to its knowledge, threatened, by or on behalf of any
employee or group of employees of it, other than those which in the aggregate
have no reasonable likelihood of having a Material Adverse Effect.
(f) There are no complaints or charges against it pending or, to its
knowledge, threatened to be filed with any federal, state or local court,
governmental agency or arbitrator based on, arising out of, in connection with,
or otherwise relating to the employment by it of any individual, other than
those which in the aggregate have no reasonable likelihood of having a Material
Adverse Effect.
(g) It is in material compliance with all laws, and all orders of any
court, Governmental Authority or arbitrator, relating to the employment of labor
including all such laws relating to wages, hours, collective bargaining,
discrimination, civil rights, and the payment of withholding and/or social
security and similar taxes, other than those the non-compliance with which in
the aggregate would have no Material Adverse Effect.
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SECTION 6.18 FORCE MAJEURE
Neither its business nor its properties are currently suffering from the
effects of any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public
enemy or other casualty (whether or not covered by insurance), other than those
the consequences of which in the aggregate would have no Material Adverse
Effect.
SECTION 6.19 INTELLECTUAL PROPERTY
It owns or licenses or otherwise has the right to use all material
licenses, Permits, patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, copyright applications,
franchises, authorizations and other intellectual property rights that are
necessary for the operation of its businesses, without infringement upon or
conflict with the rights of any other Person with respect thereto, including,
without limitation, all trade names. No slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now
contemplated to be employed, by it infringes upon or conflicts with any rights
owned by any other Person, which infringement or conflict is reasonably likely
to have a Material Adverse Effect, and no claim or litigation regarding any of
the foregoing is pending or, to its knowledge, threatened, the existence of
which is reasonably likely to have a Material Adverse Effect. No patent,
invention, device, application, principle or any statute, law, rule, regulation,
standard or code is pending or, to its knowledge, proposed, other than those the
consequences of which in the aggregate have no reasonable likelihood of having a
Material Adverse Effect.
SECTION 6.20 CERTAIN INDEBTEDNESS
The Disclosure Schedule identifies as of the Closing Date all Indebtedness
of it which is either (a) for borrowed money or (b) incurred outside of the
ordinary course of the business.
SECTION 6.21 SENIORITY
Its obligations hereunder rank at least pari passu to all of its other
Indebtedness, except Indebtedness secured by Permitted Liens.
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SECTION 6.22 TRUTH, ACCURACY OF INFORMATION
All financial and other information furnished to Bank in connection with
this Agreement is accurate in all material respects and does not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the information furnished, in light of the circumstances under
which furnished, not misleading; provided, however, that with respect to any
such information which is a forecast or projection, it represents only that it
acted in Good Faith and utilized reasonable assumptions based on due and careful
consideration and on the information known to it at the time of the preparation
of such forecast or projection.
SECTION 6.23 CHIEF EXECUTIVE OFFICE AND OTHER LOCATIONS
Its chief executive office and principal place of business is as set forth
in Section 6.23 of the Disclosure Schedule. Its books and records are located at
its chief executive office, and the only other offices and/or locations where it
keeps the Collateral (except for Inventory which is in transit) or conducts any
of its business are set forth in Section 6.23 of the Disclosure Schedule.
SECTION 6.24 RIGHTS TO PAYMENT
Unless otherwise noted by it, each Right to Payment listed or referred to
on its trial balance, balance sheet or the books or records, or referred to in
any report to Bank (other than Rights to Payment which are proceeds of letters
of credit, insurance proceeds, contract rights, chattel paper, instruments and
documents not arising directly out of a sale or lease of goods or services) is
and will be free and clear of Liens in favor of any Person other than Bank, will
cover a bona fide sale or lease and delivery of goods usually dealt in by it in
the ordinary course of its business or will cover the rendition of services by
it to customers of a kind ordinarily rendered in the ordinary course of its
business, and will be for a liquidated amount from a customer competent to
contract therefor and maturing as stated by it.
SECTION 6.25 FISCAL YEAR
Williams Parent's fiscal year ends on September 30. Ajay Parent's fiscal
year ends on December 31.
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ARTICLE VII. CONDITIONS
SECTION 7.1 CONDITIONS OF INITIAL EXTENSION OF CREDIT
The obligation of Bank to extend any credit contemplated by this Agreement
is subject to the fulfillment to Bank's satisfaction of all of the following
conditions:
(a) Approval of Bank's Counsel. All legal matters incidental to
the extension of credit hereunder shall be reasonably satisfactory to
counsel for Bank.
(b) Documentation. Bank shall have received, in form and
substance satisfactory to Bank, each of the following duly executed:
(i) this Agreement, a Letter of Credit Agreement for any
Letter of Credit to be issued on the Closing Date and the Notes;
(ii) corporate borrowing resolution from each Borrower;
(iii) a good standing certificate for each Borrower from its state
of incorporation and certified copy of the Articles or Certificate of
Incorporation for each Borrower;
(iv) a copy of the bylaws of each Borrower certified by its
secretary as correct and complete;
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(v) certificate of incumbency from each Borrower;
(vi) Notice of Authorized Representatives;
(vii) an opinion of counsel to Borrowers as to such matters as
Bank shall reasonably require;
(viii) the Florida mortgage of Aptek Williams, Inc.;
(ix) title insurance commitment with respect to the Florida
mortgage of Aptek Williams, Inc.;
(x) a written update from Agent regarding the status and plan of
disposition of the assets/business of Kenco/Williams, Inc. from a buyer
able to purchase such assets/business on terms reasonably acceptable to
Bank together with assurances regarding the consummation of such proposed
transaction, which assurances are reasonably acceptable to Bank;
(xi) a commitment from United States National Bank of Oregon
to lend $2,000,000 to Ajay Sports, Inc. on terms acceptable to Bank;
(xii) the Unconditional Continuing Guaranty of Thomas W. Itin
in the form of Exhibit F attached hereto; and
(xiii) such other documents as Bank may require.
(c) No Material Adverse Change. There is no event or circumstance which
can reasonably be expected to have a Material Adverse Effect, and completion of
Bank's due diligence with results satisfactory to Bank. Bank shall have
determined that immediately after giving effect to (A) the making of the initial
Loans to be made on the Closing Date, (B) the issuance of Letters of Credit, if
any, to be issued on the Closing Date, (C) the payment by Borrowers of all fees
to be paid on the Closing Date, and (D) the payment or reimbursement by
Borrowers to Bank for all closing costs and expenses incurred in connection with
the transactions contemplated hereby, on a pro forma basis, the Available Credit
would be at least $2,000,000 if all of Borrowers' accounts payable were paid so
that none of them was more than 60 days past due.
(d) Fees and Expenses. Borrowers shall have paid all fees and invoiced
costs and expenses then due pursuant to the terms of this Agreement.
(e) Insurance. Agent shall have delivered to Bank evidence of the
insurance coverage, including loss payable endorsements, required pursuant to
Section 8.5.
SECTION 7.2 CONDITIONS OF EACH EXTENSION OF CREDIT
The obligation of Bank to make any Loan (including any Loan being made by
Bank on the Closing Date) and of Bank to issue any Letter of Credit shall be
subject to the further conditions precedent that:
(a) the following statements shall be true on the date of such Loan or
issuance or renewal, both before and after giving effect thereto and to the
application of the proceeds therefrom (and the acceptance by Borrowers of the
proceeds of such Loan or by the beneficiary thereof or its designee of such
Letter of Credit shall constitute a representation and warranty by Borrowers
that on the date of such Loan or such issuance such statements are true):
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(i) the representations and warranties of each Borrower contained in
the Loan Documents are correct in all material respects on and as of such
date as though made on and as of such date or, as to those representations
and warranties limited by their terms to a specified date, were correct in
all material respects on and as of such date; and
(ii) no Default is continuing or would result from the Loans being
made or the Letter of Credit being issued on such date;
(b) the making of the Loans or the issuance of such Letter of Credit on
such date does not violate any Governmental Rule and is not enjoined,
temporarily, preliminarily or permanently;
(c) Bank shall have received such additional documents,
information and materials as Bank may reasonably request; and
(d) no event or circumstance exists which can reasonably be expected to
have a Material Adverse Effect.
ARTICLE VIII. AFFIRMATIVE COVENANTS
Borrowers covenant that so long as Bank remains committed to extend credit
to Borrowers pursuant to the terms hereof or any liabilities (whether direct or
contingent, liquidated or unliquidated) of Borrowers under any of the Loan
Documents remain outstanding, and until payment in full, in cash, of all
Obligations, Borrowers shall, unless Bank otherwise consents in writing:
SECTION 8.1 PUNCTUAL PAYMENTS
Punctually pay all principal, interest, fees and other liabilities due
under any of the Loan Documents at the times and place and in the manner
specified therein.
SECTION 8.2 ACCOUNTING RECORDS
Keep accurate books and records of the financial affairs of each Borrower
and Subsidiaries sufficient to permit the preparation of financial statements
therefrom in accordance with GAAP.
SECTION 8.3 COLLATERAL REPORTING
Cause Agent to provide Bank with the following documents and reports in a
form satisfactory to Bank:
(a) the periodic reports and other information specified on
Exhibit G attached hereto;
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(b) upon Bank's request, (i) copies of customer statements and credit
memos, remittance advices and reports, and copies of deposit slips and bank
statements, (ii) copies of shipping and delivery documents, and (iii) copies of
purchase orders, invoices and delivery documents for Inventory and Equipment
acquired by Borrower;
(c) upon Bank's request, Borrowers shall, at their expense, no more than
once during the term of the Agreement in the absence of a Default, but at any
time or times as Bank may request on or after a Default, deliver or cause to be
delivered to Bank written reports or appraisals as to the Collateral in form,
scope and methodology acceptable to Bank and by an appraiser acceptable to Bank,
addressed to Bank or upon which Bank is expressly permitted to rely;
(d) within 20 days after the sending or filing thereof, copies of all
reports and statements sent to or filed by Borrower with the Securities and
Exchange Commission; and
(e) such other reports as to the Collateral as Bank shall request from
time to time.
If any Records are prepared or maintained by an accounting service, contractor,
shipper or other agent, Borrower hereby irrevocably authorizes such service,
contractor, shipper or agent to deliver such records, reports, and related
documents to Bank and to follow Bank's instructions with respect to further
services at any time that a Default exists or has occurred and is continuing.
SECTION 8.4 FINANCIAL STATEMENTS
Cause Agent to provide Bank all of the following, in form and detail
satisfactory to Bank:
(a) not later than 90 days after and as of the end of each fiscal year of
Williams Parent, audited, consolidated and consolidating financial statements of
Williams Parent, prepared in accordance with GAAP and certified by an
independent certified public accountant acceptable to Bank and such accountant's
unqualified opinion with respect thereto;
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(b) not later than 90 days after and as of the end of each fiscal year of
Ajay Parent, audited, consolidated and consolidating financial statements of
Ajay Parent, prepared in accordance with GAAP and certified by an independent
certified public accountant acceptable to Bank and such accountant's unqualified
opinion with respect thereto;
(c) not later than 15 days (25 days until 1998) after and as of the end of
each month which is not the last month of a fiscal quarter, consolidated and
consolidating financial statements of Williams Parent, prepared in accordance
with GAAP by Williams Parent, including a comparison of Williams Parent's actual
consolidated financial condition for said month and year to date with respect to
the same month and period of the immediately preceding fiscal year, together
with a certificate by a senior financial officer of Williams Parent certifying
that such financial statements fairly present in all material respects Williams
Parent's consolidated balance sheet as of the end of such month and income and
cash flow for such month;
(d) not later than 45 days after and as of the end of each month which is
the last month of a fiscal quarter but not the last month of the fiscal year,
consolidated and consolidating financial statements of Williams Parent, prepared
in accordance with GAAP by Williams Parent, including a comparison of Williams
Parent's actual consolidated financial condition for said month and year to date
with respect to the same month and period of the immediately preceding fiscal
year, together with a certificate by a senior financial officer of Williams
Parent certifying that such financial statements fairly present in all material
respects Williams Parent's consolidated balance sheet as of the end of such
month and income and cash flow for such month;
(e) not later than 15 days (25 days until 1998) after and as of the end of
each month which is not the last month of a fiscal quarter, consolidated and
consolidating financial statements of Ajay Parent, prepared in accordance with
GAAP by Ajay Parent, including a comparison of Ajay Parent's actual consolidated
financial condition for said month and year to date with respect to the same
month and period of the immediately preceding fiscal year, together with a
certificate by a senior financial officer of Ajay Parent certifying that such
financial statements fairly present in all material respects Ajay Parent's
consolidated balance sheet as of the end of such month and income and cash flow
for such month;
(f) not later than 45 days after and as of the end of each month which is
the last month of a fiscal quarter, consolidated and consolidating financial
statements of Ajay Parent, prepared in accordance with GAAP by Ajay Parent,
including a comparison of Ajay Parent's actual consolidated financial condition
for said month and year to date with respect to the same month and period of the
immediately preceding fiscal year, together with a certificate by a senior
financial officer of Ajay Parent certifying that such financial statements
fairly present in all material respects Ajay Parent's consolidated balance sheet
as of the end of such month and income and cash flow for such month;
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(g) contemporaneously with the delivery of each financial statement
required hereby, a certificate of Agent's chief financial officer (i) stating
that no Default existed at any time during the period covered by such statement,
except for those events or conditions, if any, described in such certificate in
reasonable detail together with a statement of any action taken or proposed to
be taken with respect thereto and (ii) setting forth the calculations required
to establish compliance by Borrowers with the covenants set forth in Sections
8.18 and 9.14 hereof; and
(h) from time to time such other information as Bank may reasonably
request, which may include, without limitation, budgets, forecasts, projections
and other information respecting the Collateral and the business of Borrower.
SECTION 8.5 INSURANCE
(a) At all times, Borrowers shall maintain property insurance insuring all
Collateral which is tangible property against loss or damage by fire, theft,
burglary, pilferage, loss in transit and such other hazards as Bank shall
specify in an amount equal to the full insurable value of the Collateral with
reasonable deductible amounts. Such insurance shall contain extra expense and
business interruption endorsements, shall contain a lender's loss payable
endorsement acceptable to Bank, shall be evidenced by policies containing terms
reasonably acceptable to Bank and shall be provided by insurers acceptable to
Bank. The policies or a certificate thereof signed by the insurer shall be
delivered to Bank within five (5) Business Days after the issuance or renewal of
the policies to Borrowers. Each such policy shall provide that such policy may
not be amended or canceled without thirty (30) days prior written notice to
Bank. At least fifteen (15) days before the expiration of a policy, Agent shall
deliver to Bank a binder (or other evidence reasonably acceptable to Bank)
indicating that such policy has been renewed or that a substitute for such
policy will be issued effective upon the expiration of such policy. If Agent
fails to do so, Bank may (but shall not be required to) procure such insurance
and add the cost thereof to the Revolving Loan.
(b) At all times, Borrowers shall maintain in full force and effect such
liability and other insurance with respect to its activities as may be
reasonably required by Bank. Such liability insurance shall name Bank as an
additional insured with respect to the activities of Borrowers and shall be
provided by insurer(s) acceptable to Bank.
(c) OREGON STATUTORY NOTICE. The following is inserted pursuant
to ORS 746.201:
WARNING
Unless you provide us with evidence of the insurance coverage as
required by our contract or loan agreement, we may purchase insurance at
your expense to protect our interest. This insurance may, but need not,
also protect your interest. If the collateral becomes damaged, the
coverage we purchase may not pay any claim you make or any claim made
against you. You may later cancel this coverage by providing evidence that
you have obtained property coverage elsewhere.
You are responsible for the cost of any insurance purchased by us.
The cost of this insurance may be added to your contract or loan balance.
If the cost is added to your contract or loan balance, the interest rate
on the underlying contract or loan will apply to this added amount. The
effective date of coverage may be the date your prior coverage lapsed or
the date you failed to provide proof of coverage.
The coverage we purchase may be considerably more expensive than
insurance you can obtain on your own and may not satisfy any need for
property damage coverage or any mandatory liability insurance requirements
imposed by applicable law.
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SECTION 8.6 COMPLIANCE
Preserve and maintain all licenses, Permits, governmental approvals,
rights, privileges and franchises necessary for the conduct of its business and
comply in all material respects, with all Governmental Rules, Contractual
Obligations, commitments, instruments, licenses, Permits and franchises, other
than such failure to preserve or maintain or non-compliance the consequences of
which in the aggregate are not reasonably likely to have a Material Adverse
Effect.
SECTION 8.7 FACILITIES
Keep all properties useful or necessary to Borrowers' business in good
repair and condition, and from time to time make necessary repairs, renewals and
replacements thereto so that such property shall be fully and efficiently
preserved and maintained.
SECTION 8.8 TAXES AND OTHER LIABILITIES
Pay and discharge when due any and all indebtedness, obligations,
assessments and taxes, both real or personal, including without limitation
Federal and state income taxes and state and local property taxes and
assessments, except such as a Borrower may in good faith contest or as to which
a bona fide dispute may arise, and for which Borrowers have made provision for
adequate reserves in accordance with GAAP.
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SECTION 8.9 LITIGATION
Promptly give notice in writing to Bank of any litigation pending or
threatened against Borrower or any Subsidiary with a claim in excess of $250,000
in the aggregate for Borrowers and all Subsidiaries.
SECTION 8.10 NOTICE TO BANK
(a) Promptly (but in no event more than two Business Days after the
occurrence of each such event or matter) give written notice to Bank in
reasonable detail of: (i) the occurrence of any Default; (ii) any termination or
cancellation of any insurance policy which Borrower is required to maintain,
unless such policy is replaced without any break in coverage with an equivalent
or better policy; (iii) any uninsured or partially uninsured loss or losses
through liability or property damage, or through fire, theft or any other cause
affecting the property of Borrowers in excess of an aggregate of $250,000 during
any twelve-month period; or (iv) any change in the name or the organizational
structure of Borrower or any Subsidiary.
(b) As soon as possible and in any event within thirty days after Borrower
knows or has reason to know that any "reportable event" (as defined in Title IV
of ERISA) that triggers an obligation to file a notice with the Pension Benefit
Guaranty Corporation with respect to any Plan has occurred that alone or
together with any other "reportable event" is reasonably likely to result in an
increase in the present value of future liabilities under all Plans of Borrowers
of more than $250,000, deliver to Bank a statement of the President or chief
financial officer of Agent setting forth details as to such reportable event and
the action which Borrowers propose to take with respect thereto, together with a
copy of the notice of such reportable event to the Pension Benefit Guaranty
Corporation.
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SECTION 8.11 CONDUCT OF BUSINESS
Except as otherwise permitted by this Agreement, (a) conduct its business
in a regular manner and (b) use its reasonable efforts in the ordinary course
and consistent with past practice to (i) preserve its business and the goodwill
and business of the customers, advertisers, suppliers and others with whom it
has business relations, (ii) keep available the services and goodwill of its
present employees, and (iii) preserve all rights, Permits, licenses, approvals,
privileges, registered patents, trademarks, trade names, copyrights and service
marks and other intellectual property with respect to its business.
SECTION 8.12 PRESERVATION OF CORPORATE EXISTENCE, ETC.
Preserve and maintain its corporate existence, rights (charter and
statutory) and material franchises, unless the failure to so preserve and
maintain is not reasonably likely to have a Material Adverse Effect.
SECTION 8.13 ACCESS
(a) At any reasonable time and from time to time upon at least two
Business Days' prior notice from Bank (unless a Default shall have occurred and
be continuing, in which case no prior notice is necessary), permit Bank, or any
agents or representatives thereof, to (i) examine and make copies of and
abstracts from the records and books of account of Borrower, (ii) visit the
properties of Borrower, (iii) discuss the affairs, finances and accounts of
Borrower with any of its officers or directors who may then be reasonably
available, and (iv) communicate directly with Borrowers' independent certified
public accountants. Borrower shall authorize its independent certified public
accountants to disclose to Bank any and all financial statements and other
information of any kind, including, without limitation, copies of any management
letter, or the substance of any oral information that such accountants may have
with respect to the business, financial condition, results of operations or
other affairs of Borrowers and each of its Subsidiaries.
(b) Borrowers shall execute and deliver at the request of Bank such
instruments as may be necessary for Bank to obtain such information concerning
the business of Borrowers as Bank may require from accountants, service bureaus
or others having custody of or maintaining records or assets of Borrower.
Borrowers shall furnish Bank at reasonable intervals with such statements and
reports regarding the Collateral, Borrowers' financial condition and the results
of Borrowers' operations, in addition to those otherwise herein required, as
Bank may request from time to time.
SECTION 8.14 PERFORMANCE AND COMPLIANCE WITH OTHER COVENANTS
Perform and observe all the terms, covenants and conditions required to be
performed and observed by it under its Contractual Obligations (including,
without limitation, to pay all rent and other charges payable under any lease
and all debts and other obligations as the same become due), and do all things
necessary to preserve and to keep unimpaired its rights under such Contractual
Obligations, other than such failures the consequences of which in the aggregate
are not reasonably likely to have a Material Adverse Effect.
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SECTION 8.15 APPLICATION OF PROCEEDS
Use the entire amount of the proceeds of each Loan as provided in Section
4.4.
SECTION 8.16 FISCAL YEAR
Notify Bank at least 60 days in advance of any action Borrower intends to
take to change its fiscal year, and at least 30 days in advance of any action
Borrower intends to take to change its method of accounting, or any accounting
practice used by it, or the application of any generally accepted accounting
principle in a manner inconsistent with the financial statements previously
delivered by Agent to Bank.
SECTION 8.17 ENVIRONMENTAL
(a) Promptly give notice to Bank upon obtaining knowledge of (i) any
claim, injury, proceeding, investigation or other action, including a request
for information or a notice of potential environmental liability, by or from any
Governmental Authority or any third-party claimant that could result in Borrower
or any Subsidiary incurring Environmental Liabilities and Costs or (ii) the
discovery of any Release at, on, under or from any real property, facility or
equipment owned or leased by Borrower or a Subsidiary in excess of reportable or
allowable standards or levels under any applicable Environmental Law, or in any
manner or amount that could reasonably be expected to result in Borrower or any
Subsidiary incurring Environmental Liabilities and Costs.
(b) Upon discovery of the presence on any property owned or leased by
Borrower or a Subsidiary of any Contaminant that reasonably could be expected to
result in Environmental Liabilities and Costs, take all Remedial Action required
by applicable Environmental Law.
SECTION 8.18 FINANCIAL COVENANTS
(a) The total of Williams Parent's Tangible Net Worth (exclusive
of its investment in Ajay Parent) and Ajay Parent's Tangible Net Worth
shall at all times exceed $11,000,000.
(b) Aggregate Working Capital shall at all times exceed
$25,000,000.
SECTION 8.19 LIENS
Keep the Collateral free and clear of all Liens, except Permitted Liens.
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SECTION 8.20 FURTHER ASSURANCES
At the request of Bank at any time and from time to time, duly execute and
deliver, or cause to be duly executed and delivered, such further agreements,
documents and instruments, and do or cause to be done such further acts as may
be necessary or proper to evidence, perfect, maintain and enforce the security
interests and the priority thereof in the Collateral and to otherwise effectuate
the provisions or purposes of this Agreement or any of the other Loan Documents,
at Borrowers' expense. Bank may at any time and from time to time request a
certificate from an officer of Borrower representing that all conditions
precedent to the making of Loans and issuing Letters of Credit contained herein
are satisfied. In the event of such request by Bank, Bank may, at its option,
cease to make any further Loans or provide any further Letters of Credit until
Bank has received such certificate and, in addition, Bank has determined that
such conditions are satisfied. Where permitted by law, Borrowers hereby
authorize Bank to execute and file one or more UCC financing statements signed
only by Bank.
ARTICLE IX. NEGATIVE COVENANTS
Borrowers covenant that so long as Bank remains committed to extend credit
to Borrowers pursuant to the terms hereof or any liabilities (whether direct or
contingent, liquidated or unliquidated) of Borrowers under any of the Loan
Documents remain outstanding, and until payment in full, in cash of all
Obligations, no Borrower will, without the prior written consent of Bank:
SECTION 9.1 LIENS
Create or suffer to exist any Lien upon or with respect to any of its
properties, whether now owned or hereafter acquired, or assign any right to
receive income, except Permitted Liens.
SECTION 9.2 INDEBTEDNESS
Borrowers and Subsidiaries, on a consolidated basis, create or suffer to
exist any Indebtedness except:
(a) the Obligations;
(b) current liabilities in respect of taxes, assessments and governmental
charges or levies incurred, or liabilities for labor, materials, inventory,
services, supplies and rentals incurred, or for goods or services purchased, in
the ordinary course of business consistent with industry practice in respect of
arm's length transactions and the past practice of Borrower; and
(c) Indebtedness owed to Borrower.
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SECTION 9.3 OPERATING LEASE OBLIGATIONS
During any twelve-month period create any obligations as lessee for the
rental or hire of real or personal property of any kind under operating leases
with a term of one year or more which would cause the aggregate liability of
Borrowers for rent or other compensation payable in any period of 12 consecutive
months with respect to such newly created leases to exceed $600,000, provided
that the foregoing shall not apply to the lease by Aptek Williams, Inc. of the
real property currently owned by it in Broward County, Florida pursuant to a
sale/leaseback transaction.
SECTION 9.4 RESTRICTED PAYMENTS, REDEMPTIONS
(a) Declare or make any dividend payment or other distribution of assets,
properties, cash, rights, obligations or securities on account or in respect of
any of its Stock or Stock Equivalents except (i) dividends paid to Borrower,
(ii) dividends paid by Borrower solely in Stock or Stock Equivalents of
Borrower, and (iii) preferred dividends paid by Ajay Parent on its preferred
stock pursuant to the terms of such preferred stock as such terms existed on
April 15, 1997;
(b) purchase, redeem or otherwise acquire for value any of
Borrower's Stock or Stock Equivalents; or
(c) make any change in its capital structure, including, without
limitation, the creation of new classes or types of Stock or Stock Equivalents.
SECTION 9.5 MERGERS, STOCK ISSUANCES, SALE OF ASSETS, ETC.
(a) (i) Merge or consolidate with any Person, (ii) acquire all or
substantially all of the Stock or Stock Equivalents of any Person or (iii)
acquire all or substantially all of the assets of any Person or all or
substantially all of the assets constituting the business of a division, branch
or other unit operation of any Person, except that Borrower may acquire such
assets if (A) no Default exists at the time of such acquisition, (B) no default
would result from such acquisition and (C) immediately after giving effect to
such acquisition and bringing current to Bank's satisfaction any liabilities
assumed in connection with such acquisition, the Available Credit would be at
least $1,000,000.
(b) Except for a sale, conveyance, transfer, lease or other disposition to
Borrower, sell, convey, transfer, lease or otherwise dispose of any of its
assets (including, without limitation, the Stock of a Subsidiary) or any
interest therein to any Person, or permit or suffer any other Person to acquire
any interest in any of the assets of Borrower, except (i) Permitted Liens and
(ii) the sale or disposition of inventory in the ordinary course of business
and/or assets which have become obsolete or are replaced in the ordinary course
of business.
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SECTION 9.6 INVESTMENTS IN OTHER PERSONS
Directly or indirectly, make or maintain any loan or advance to any other
Person or own, purchase or otherwise acquire any Stock, Stock Equivalents, other
equity interest, obligations or other securities of, or otherwise invest in, any
other Person (any such transaction being an "Investment"), except:
(a) investments in Accounts, contract rights and chattel paper, notes
receivable and similar items arising or acquired in the ordinary course of
business consistent with Borrowers' past practice;
(b) incidental advances to employees of Borrower in the ordinary
course of business; and
(c) loans and advances to Borrower.
SECTION 9.7 CHANGE IN NATURE OF BUSINESS
Directly or indirectly engage in any business activity other than its
current business activity or related business activity.
SECTION 9.8 GUARANTIES
Guarantee or become liable in any way as surety, endorser (other than as
endorser of negotiable instruments for deposit or collection in the ordinary
course of business), accommodation endorser or otherwise for, or pledge or
hypothecate any assets of Borrower or any Subsidiary as security for, any
liabilities or obligations of any other Person except any of the foregoing
required by this Agreement.
SECTION 9.9 PLANS
(a) Adopt or become obligated to contribute to any Title IV Plan or any
multiemployer Plan or any other Plan subject to Section 412 of the Internal
Revenue Code (except for any such Plan listed on the Disclosure Schedule on the
Closing Date), (b) except as a result of arm's length negotiation with a labor
union, establish or become obligated with respect to any new welfare benefit
Plan, or modify any existing welfare benefit Plan, which is reasonably likely to
result in an increase of the present value of future liabilities for
post-retirement life insurance and medical benefits, or (c) establish or become
obligated to contribute to any new unfunded pension Plan, or modify any existing
unfunded pension Plan, which is reasonably likely to result in an increase in
the present value of future unfunded liabilities under all such plans.
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SECTION 9.10 ACCOUNTING CHANGES
Make any change in accounting practices, except such changes as are in
conformity with GAAP and disclosed to Bank pursuant to Section 8.16.
SECTION 9.11 CANCELLATION OF INDEBTEDNESS OWED TO IT
Cancel any claim or Indebtedness owed to it except for legitimate business
purposes in the reasonable judgment of Borrower and in the ordinary course of
business and except for obligations owed to it by another Borrower.
SECTION 9.12 NO SPECULATIVE TRANSACTIONS
Engage in any Commodity Contract or Interest Rate Contract other than
interest rate projection agreements on terms reasonably acceptable to the Bank.
SECTION 9.13 ENVIRONMENTAL
Permit any lessee or any other Person to, dispose of any Contaminant by
placing it in or on the ground or waters of any property owned or leased by
Borrower or any of its Subsidiaries, except in material compliance with
Environmental Law or the terms of any Permit or other than those which in the
aggregate have no reasonable likelihood of having a Material Adverse Effect.
SECTION 9.14 CAPITAL EXPENDITURES
Make any capital expenditures (which term shall include Capitalized Lease
Obligations) at any time except (i) in the ordinary course of business, and (ii)
in an amount collectively for Borrowers not in excess of $2,500,000 in any
twelve-month period.
SECTION 9.15 TRANSACTIONS WITH AFFILIATES
Except for a transaction with Borrower, enter into any transaction
directly or indirectly with or for any affiliate except in the ordinary course
of business on a basis no less favorable to such affiliate than would be
obtained in a comparable arm's length transaction with a Person not an affiliate
involving assets that are not material to the business and operations of
Borrower.
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SECTION 9.16 NEW COLLATERAL LOCATION
Open any new location unless (a) Agent gives Bank 30 days prior written
notice of the intended opening of such new location and (b) the applicable
Borrower executes and delivers to Bank such agreements, documents and
instruments as Bank may deem reasonably necessary or desirable to protect its
interests in the Collateral at such new location, including, without limitation,
UCC-1 financing statements.
ARTICLE X. EVENTS OF DEFAULT
SECTION 10.1 EVENTS OF DEFAULT
The occurrence of any of the following shall constitute an "Event of
Default" under this Agreement:
(a) Borrowers shall fail to pay when due any amount payable under
any of the Loan Documents;
(b) any financial statement or certificate furnished to Bank in connection
with, or any representation or warranty made by Borrower under any of the Loan
Documents shall prove to be false or misleading in any material respect when
furnished or made;
(c) Borrowers shall fail to provide any certificate, report or other
information which it is required to provide pursuant to Section 8.3 or Section
8.4 on the date specified in Section 8.3 or Section 8.4; provided that unless
Borrowers have previously failed to provide any required certificate, report or
other information by the required date on two prior occasions within the
preceding twelve months, such failure shall be considered an Event of Default
only if Borrowers fail to provide such certificate, report or other information
within five Business Days of the earlier of (i) the date Borrower has knowledge
of its failure to so provide such certificate, report or other information, or
(ii) the date Bank, notifies Agent of such failure;
(d) any default by Borrowers in the performance of or compliance with any
obligation, agreement or other provision contained in Sections 8.10, 8.12, 8.13,
8.15, 8.16, 8.18, 9.2, 9.4, 9.5, 9.6;
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(e) any default by Borrowers in the performance or compliance with any
obligation, agreement or other provision contained in any Loan Document (other
than those referred to in subsections (a) through (d) above) for 15 days after
notice thereof by Bank to Agent;
(f) except as otherwise provided in Section 10.4, any default by Borrower
in the payment or performance of any obligation, or any defined event of
default, under the terms of any contract or instrument (other than any of the
Loan Documents) evidencing Indebtedness (other than trade payables incurred in
the ordinary course of business) in excess of $200,000 to any Person, which
default is not cured within any cure period applicable thereto;
(g) except as otherwise provided in Section 10.4, any judgment, order or
writ in excess of $250,000 is rendered or entered against Borrower and/or one or
more Subsidiaries, except any judgment for which Borrowers are fully insured and
with respect to which the insurer has admitted in writing its liability for the
full amount thereof or except if the enforcement of such judgment, order or writ
has been stayed or the liability thereon bonded in a manner and on terms
reasonably satisfactory to Bank; or the service of a notice of levy and/or of a
writ of attachment or execution, or other like process, against any of the
assets of Borrower and/or one or more Subsidiaries with respect to obligations
in excess of $100,000;
(h) Borrower shall become insolvent, or shall suffer or consent to or
apply for the appointment of a receiver, trustee, custodian or liquidator of
itself or any of its property, or shall generally be unable to or fail to pay
its debts as they become due, or shall make a general assignment for the benefit
of creditors; Borrower shall file a voluntary petition in bankruptcy, or seek to
effect a plan or other arrangement with creditors or any other relief under the
Bankruptcy Code, or under any state or other Federal law granting relief to
debtors, whether now or hereafter in effect; or any involuntary petition or
proceeding pursuant to the Bankruptcy Code or any other applicable state or
other Federal law relating to bankruptcy, reorganization or other relief for
debtors is filed or commenced against Borrower and is not dismissed, stayed or
vacated within 60 days thereafter; Borrower shall file an answer admitting the
jurisdiction of the court and the material allegations of any involuntary
petition; or Borrower shall be adjudicated a bankrupt, or an order for relief
shall be entered by any court of competent jurisdiction under the Bankruptcy
Code or any other applicable state or Federal law relating to bankruptcy,
reorganization or other relief for debtors; as used herein;
(i) there shall exist or occur any event or condition which Bank in Good
Faith believes impairs, or is substantially likely to impair, the prospect of
payment or performance by Borrowers of their obligations under any of the Loan
Documents and such event or condition is not cured or removed within five days
after notice thereof by Bank to Agent;
(j) the dissolution or liquidation of Borrower, or Borrower or its
directors or stockholders shall take action seeking to effect the dissolution or
liquidation of Borrower;
(k) Thomas W. Itin shall no longer possess, directly or
indirectly, the power to direct or cause the direction of the management
or policies of Borrower;
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(l) any Obligor revokes or terminates (or attempts or purports to revoke
or terminate) his/her/its guarantee, endorsement or other agreement in favor of
Bank, or any creditor of Borrower which has executed a subordination in favor of
Bank revokes or terminates (or attempts or purports to revoke or terminate) such
subordination.
(m) the indictment of Borrower or any Obligor under any criminal statute,
or commencement of criminal or civil proceedings against Borrower or any
Obligor, pursuant to which statute or proceedings the penalties or remedies
sought or available include forfeiture of any material amount of property of
Borrower or such Obligor;
(n) any member of Borrower's Senior Management shall cease, for any
reason, to be employed by Borrower on a full-time basis in his present capacity
unless such person is replaced within 90 days by another person acceptable to
Bank. Senior Management means Thomas W. Itin or any two of the chief financial
officer of Williams Parent or a Group Vice President of Williams Parent; or
(o) the sale, transfer, hypothecation, assignment or encumbrance, whether
voluntary, involuntary or by operation of law, without Bank's prior written
consent, of all or any part of or interest in any real property Collateral
required hereby.
SECTION 10.2 REMEDIES
(a) Upon the occurrence or existence of any Event of Default (other than
an Event of Default referred to in Section 10.1(h) hereof) and at any time
thereafter during the continuance of such Event of Default, Bank may, by written
notice to Agent, (a) terminate Bank's obligation to extend any further credit
under any of the Loan Documents, and/or (b) declare all indebtedness of
Borrowers under the Loan Documents to be immediately due and payable without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by Borrowers. Upon the occurrence or existence of any
Event of Default described in Section 10.1(h) hereof, immediately and without
notice, (i) the obligations, if any, of Bank to extend any further credit under
any of the Loan Documents shall automatically cease and terminate, and (ii) all
indebtedness of Borrowers under the Loan Documents shall automatically become
immediately due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by Borrowers. In
addition to the foregoing remedies, upon the occurrence or existence of any
Event of Default, Bank may exercise any other right, power or remedy granted to
it under any Loan Document or permitted to it by law, either by suit in equity
or by action at law, or both.
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(b) Upon the occurrence of an Event of Default, Bank, in addition to any
other rights and remedies contained in the Loan Documents, shall have all of the
rights and remedies of a secured party under the Code and all other applicable
law, all of which rights and remedies shall be cumulative and nonexclusive to
the extent permitted by law. Bank may cause the Collateral to remain on
Borrowers' premises, at Borrowers' expense, pending sale or other disposition
thereof. Bank shall have the right to conduct such sales on Borrowers' premises
or elsewhere, at Borrowers' expense, on such occasion(s) as Bank may see fit,
and Borrowers, at Bank's request, will, at Borrowers' expense, assemble the
Collateral and make it available to Bank at such place(s) as Bank may reasonably
designate from time to time. Any sale, lease or other disposition by Bank of the
Collateral, or any part thereof, may be for cash or other value. Borrowers shall
execute and deliver, or cause to be executed and delivered, such instruments,
documents, assignments, deeds, waivers, certificates and affidavits and take
such further action as Bank shall reasonably require in connection with such
sale, and Borrower hereby constitutes Bank as its attorney-in-fact to execute
any such instrument, document, assignment, deed, waiver, certificate or
affidavit on behalf of Borrower and in its name. Borrowers acknowledge that
portions of the Collateral may be difficult to preserve and dispose of and may
be subject to complex maintenance and management; accordingly, Bank shall have
the widest possible latitude in the exercise of its rights and remedies
hereunder.
(c) Bank is hereby granted a license and right to use, without charge upon
the occurrence and during the continuance of an Event of Default and until the
Obligations are fully and finally paid in cash, Borrowers' labels, patents,
copyrights, rights of use of any name, trade secrets, trade names, trademarks,
service marks, advertising material or any property of a similar nature in
completing the production, advertising for sale and sale of any Collateral.
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(d) Any notice required to be given by Bank with respect to any of the
Collateral which notice is given pursuant to Section 11.3 and deemed received
pursuant to Section 11.3 at least five days before a sale, lease, disposition or
other intended action by Bank with respect to any of the Collateral shall
constitute fair and reasonable notice to Borrowers of any such action. A public
sale in the following fashion shall be conclusively presumed to be reasonable
if: (i) the sale is held in a county where any part of the Collateral is located
or in which Borrowers have a place of business; (ii) the sale is conducted by
auction; and (iii) any Collateral is sold as is and without any preparation for
sale.
(e) Upon the occurrence and during the continuance of an Event of Default,
Bank shall have, with respect to Rights to Payment, all rights and powers to:
(i) direct any and all account debtors to make all payments in respect of Rights
to Payment directly to Bank or otherwise demand payment of any or all of Rights
to Payment; (ii) enforce payment of any or all of Rights to Payment by legal
proceedings or otherwise; (iii) exercise Borrowers' rights and remedies with
respect to any actions or proceedings brought to collect a Right to Payment;
(iv) sell or assign any Right to Payment upon such terms, for such amount and at
such time or times as Bank deems advisable; (v) settle, adjust, compromise,
extend or renew a Right to Payment; (vi) discharge or release any Right to
Payment; and (vii) prepare, file and sign Borrower's name on any proof of claim
in bankruptcy or any similar document against an account debtor, and to
otherwise exercise the rights granted herein.
(f) Bank shall have no obligation to preserve any rights to the Collateral
against any Person. Bank shall be under no obligation to make any demand upon or
pursue or exhaust any rights or remedies against Borrowers or others with
respect to payment of the Obligations, or to pursue or exhaust any rights or
remedies with respect to any of the Collateral or any other security for the
Obligations, or to marshal any assets in favor of Borrower or any other Person
against or in payment of any or all of the Obligations.
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(g) In addition to the Liens granted to Bank and any rights now or
hereafter granted under applicable law and not by way of limitation of any such
Liens and rights, upon the occurrence and during the continuance of any Event of
Default, Bank is hereby irrevocably authorized by Borrowers at any time or from
time to time, without notice to Borrowers or to any other Person, any such
notice being hereby expressly waived, to set-off, appropriate and apply against
the Obligations any and all deposits (general or special, including, but not
limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured, but not including trust accounts) and any other indebtedness at
any time held or owing by Bank or any affiliate of Bank to or for the credit of
Borrower.
(h) Borrowers shall pay to Bank, on demand and as part of the Obligations,
all costs and expenses, including court costs and costs of sale, incurred by
Bank in exercising any of its rights or remedies hereunder, and all costs and
expenses incurred in connection with any review of any part of the Collateral by
a collateral analyst employed by Bank (including, without limitation, Bank's
then customary per diem charges for such analysts) if such review was conducted
at any time during the continuation of an Event of Default.
SECTION 10.3 BANK AS BORROWERS' ATTORNEY
Borrower hereby appoints Bank or any other Person whom Bank may designate,
as Borrower's attorney, with power during the continuation of an Event of
Default: to indorse Borrower's name on any checks, notes, acceptances, money
orders, drafts or other forms of payment or security that may come into Bank's
possession; to sign Borrower's name on any invoice or bill of lading relating to
any Right to Payment, on drafts against customers, on schedules and assignments
of Rights to Payment, on notices of assignment, financing statements and other
public records, and on notices to customers; to notify the post office
authorities to change the address for delivery of Borrower's mail to an address
designated by Bank; to receive, open and process all mail addressed to Borrower;
and to do all things necessary to perfect Bank's security interest in the
Collateral, to preserve and protect the Collateral and to otherwise carry out
this Agreement. Provided Bank acts in a reasonable manner, Borrower ratifies and
approves all acts of such attorney, and neither Bank nor the attorney will be
liable for any acts or omissions nor for any error of judgment or mistake of
fact or law. This power being coupled with an interest is irrevocable until the
Obligations have been fully paid in cash or the financing arrangements between
Bank and Borrowers are terminated, whichever shall later occur.
SECTION 10.4 EXCEPTIONS
If upon the occurrence of an event described in Section 10.1(f) or Section
10.1(g) the Available Credit exceeds the aggregate amount of all Indebtedness
described in Section 10.1(f) and all judgments, orders, writs and obligations
described in Section 10.1(g), then such occurrence shall constitute an Event of
Default only at such later time as the total of the Available Credit plus all
reserves created by Bank for such events no longer exceeds such aggregate
amount.
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ARTICLE XI. TERM OF AGREEMENT AND MISCELLANEOUS
SECTION 11.1 TERM
(a) Maturity Date. This Agreement and the other Loan Documents shall
become effective as of the Closing Date and shall continue in full force and
effect for a term ending on the Maturity Date. Upon the date of termination of
the Loan Documents, Borrowers shall pay to Bank, in full, all outstanding and
unpaid Obligations and shall furnish cash collateral to Bank in such amounts as
Bank determines are reasonably necessary to secure Bank from loss, cost, damage
or expense, including attorneys' fees and legal expenses (whether incurred at
the trial or appellate level, in an arbitration proceeding, in bankruptcy
(including, without limitation, any adversary proceeding, contested matter or
motion) or otherwise), in connection with any contingent obligations, including
issued and outstanding Letters of Credit and checks or other payments
provisionally credited to the obligations and/or as to which Bank has not yet
received final and indefeasible payment. Interest shall be due until and
including the next Business Day, if the amounts so paid by Borrowers to the bank
account designated by Bank are received in such bank account later than noon
(San Francisco time).
(b) Continuing Obligations. No termination of this Agreement or the
other Loan Documents shall relieve or discharge Borrower of its respective
duties, obligations and covenants under this Agreement or the other Loan
Documents until all Obligations have been fully and finally discharged and paid
in cash, and Bank's continuing security interest in the Collateral and the
rights and remedies of Bank hereunder, under the other Loan Documents and
applicable law, shall remain in effect until all Obligations have been fully and
finally discharged and paid in cash.
(c) Early Termination Fee. If for any reason (other than as set
forth in subparagraph (d) below) this Agreement is terminated prior to the end
of the then current term of this Agreement, in view of the impracticality and
extreme difficulty of ascertaining actual damages and by mutual agreement of the
parties as to a reasonable calculation of Bank's lost profits as a result
thereof, Borrowers agree to pay to Bank, upon the effective date of such
termination, an early termination fee in the amount set forth below if such
termination is effective in the period indicated:
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Amount Period
(i) 3% of Fee Computation Amount Closing Date to and
including July 10, 1998
(ii) 1.5% of Fee Computation Amount July 11, 1998 to and
including July 10, 1999
(iii) 0.5% of Fee Computation Amount July 11, 1999 to and
including May 11, 2000
Such early termination fee shall be presumed to be the amount of damages
sustained by Bank as a result of such early termination and Borrowers agree that
it is reasonable under the circumstances currently existing.
(d) No Early Termination Fee. No early termination fee shall be
payable if (i) a group or division of Bank (other than the Commercial Finance
Division or the workout group), or an affiliate of Bank extends credit to
Borrowers, which credit refinances and/or replaces in full the credit facilities
granted under this Agreement, (ii) the Obligations are repaid with the proceeds
of equity and/or the sale of assets, or (iii) the Obligations are repaid after
the first anniversary of the Closing Date from proceeds of loans made by a
lender other than Bank, which lender includes collateral of a target company
being acquired by Borrower in such lender's borrowing base and which acquisition
was not permitted hereunder.
SECTION 11.2 NO WAIVER
No delay, failure or discontinuance of Bank in exercising any right, power
or remedy under any of the Loan Documents shall affect or operate as a waiver of
such right, power or remedy, nor shall any single or partial exercise of any
such right, power or remedy preclude, waive or otherwise affect any other or
further exercise thereof or the exercise of any other right, power or remedy.
Any waiver, permit, consent or approval of any kind by Bank of any breach of or
default under any of the Loan Documents must be in writing and shall be
effective only to the extent set forth in such writing.
SECTION 11.3 NOTICES
All notices, requests and demands which any party is required or may
desire to give to any other party under any provision of this Agreement must be
in writing delivered to each party at the following address:
BORROWERS: c/o Williams Controls, Inc.
14100 SW 72nd Avenue
Portland, OR 97224
Attn: Thomas W. Itin, Chairman
Telecopy No.: (248) 851-9080
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WITH A COPY TO: Gerard A. Herlihy
Aptek Williams, Inc.
700 N.W. 12th Avenue
Deerfield Beach, FL 33442
Telecopy No.: (954) 421-8044
BANK: Wells Fargo Bank, National Association
Commercial Finance Division
245 S. Los Robles Ave., Ste. 600
Pasadena, CA 91101
Attn: Angelo Samperisi
Telecopy No.: (626) 884-9063
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three days after deposit in the
U.S. mail, first class and postage prepaid; and (c) if sent by telecopy and
receipt confirmed by telephone, upon receipt and the sender will endeavor to
send a hard copy of such telecopied notice to the recipient by mail.
SECTION 11.4 COSTS, EXPENSES AND ATTORNEYS' FEES
Borrowers shall pay to Bank immediately upon demand the full amount of all
payments, advances, charges, costs and expenses, including reasonable attorneys'
fees (whether incurred at the trial or appellate level, in an arbitration
proceeding, in bankruptcy, including, without limitation, any adversary
proceeding, contested matter or motion), incurred by Bank in connection with (a)
the negotiation and preparation of the Loan Documents, (b) the enforcement,
preservation or protection (or attempted enforcement, preservation or
protection) of Bank's rights, including, without limitation, periodic collateral
examinations and/or the collection of any amounts which become due to Bank,
under any of the Loan Documents, and (c) the prosecution or defense of any
action in any way related to any of the Loan Documents, including without
limitation, any action for declaratory relief, and including any of the
foregoing incurred in connection with any bankruptcy proceeding relating to
Borrower; provided, however, that Borrower shall not be obligated to reimburse
Bank for any attorneys' fees incurred by Bank in any court proceeding (other
than a proceeding under or related to 11 U.S.C. ss. 101 et seq.) if (i) such
fees were incurred in an action by either Bank or Borrower against the other and
(ii) Borrower is the prevailing party in such action.
SECTION 11.5 INDEMNIFICATION
To the fullest extent permitted by law, Borrowers hereby agree to protect,
indemnify, defend and hold harmless Bank and its officers, directors,
shareholders, employees, agents, attorneys and affiliates, together with their
respective heirs, beneficiaries, executors, administrators, trustees,
predecessors, successors and assigns (collectively, "Indemnitees") from and
against any liability, loss, damage or expense of any kind or nature and from
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any suit, claim or demand (including in respect of or for reasonable attorneys'
fees (whether incurred at the trial or appellate level, in an arbitration
proceeding, in bankruptcy (including, without limitation, any adversary
proceeding, contested matter or motion) or otherwise) and other expenses,
including the allocated costs and expenses of internal counsel) arising on
account of or in connection with any matter or thing or action or failure to act
by Indemnitees, or any of them, arising out of relating to any Loan Document,
except to the extent such liability arises from the willful misconduct or gross
negligence of the Indemnitees. Upon receiving knowledge of any suit, claim or
demand asserted by a third party that Bank believes is covered by this
indemnity, Bank shall give Agent notice of the matter and an opportunity to
defend it, at Borrowers' sole cost and expense, with legal counsel satisfactory
to Bank. Bank may also require Borrowers to defend the matter. Any failure or
delay of Bank to notify Borrowers of any suit, claim or demand shall not relieve
Borrowers of their obligations of this Section, but shall reduce such
obligations to the extent of any increase in those obligations caused solely by
an unreasonable failure or delay in providing such notice. The obligations of
Borrowers under this Section shall survive the payment in full and performance
of the other Obligations.
SECTION 11.6 SUCCESSORS, ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the parties; provided however, that Borrower may not
assign or transfer its interest hereunder. Bank reserves the right to sell,
assign, transfer, negotiate or grant participations in all or any part of, or
any interest in, Bank's rights and benefits under each of the Loan Documents,
provided, however, that such sale, assignment, transfer, negotiation or
participation is to an insurance company, bank, finance company or other
financial institution. In connection therewith, Bank may disclose all documents
and information which Bank now has or may hereafter acquire relating to any
credit extended by Bank to Borrower, Borrower or its business, any guarantor
hereunder or the business of such guarantor, or the Collateral.
SECTION 11.7 ENTIRE AGREEMENT; AMENDMENT
This Agreement and the other Loan Documents constitute the entire
agreement among Borrowers and Bank with respect to any extension of credit by
Bank and supersede all prior negotiations, communications, discussions and
correspondence concerning the subject matter hereof. This Agreement may be
amended or modified only by a written instrument executed by each party hereto.
SECTION 11.8 NO THIRD PARTY BENEFICIARIES
This Agreement is made and entered into for the sole protection and
benefit of the parties hereto and their respective permitted successors and
assigns, and no other person or entity shall be a third party beneficiary of, or
have any direct or indirect cause of action or claim in connection with, this
Agreement or any other of the Loan Documents to which it is not a party.
SECTION 11.9 TIME
Time is of the essence of each and every provision of this Agreement and
each other of the Loan Documents.
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SECTION 11.10 SEVERABILITY OF PROVISIONS
If any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or any remaining provisions of this Agreement.
SECTION 11.11 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which when executed and delivered shall be deemed to be an original, and all of
which when taken together shall constitute one and the same Agreement.
SECTION 11.12 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of Oregon.
SECTION 11.13 PATENT ASSIGNMENT AS COLLATERAL
Among the Loan Documents are Patent Assignment and Security Agreements
("Patent Agreements") granted by certain Borrowers to Bank. Notwithstanding the
form of the Patent Agreements, the Patent Agreements are intended as security
for the payment and performance by Borrowers of the Obligations. Upon the
payment in full of the Obligations, Bank will, at Borrowers' expense, execute
and deliver to Borrowers such documents as Borrowers shall reasonably request to
evidence the termination of Bank's rights set forth in the Patent Agreements.
SECTION 11.14 ARBITRATION
(a) Arbitration. Upon the demand of any party, any Dispute shall be
resolved by binding arbitration (except as set forth in (e) below) in accordance
with the terms of this Agreement. A "Dispute" shall mean any action, dispute,
claim or controversy of any kind, whether in contract or tort, statutory or
common law, legal or equitable, now existing or hereafter arising under or in
connection with, or in any way pertaining to, any of the Loan Documents, or any
past, present or future extensions of credit and other activities, transactions
or obligations of any kind related directly or indirectly to any of the Loan
Documents, including without limitation, any of the foregoing arising in
connection with the exercise of any self help, ancillary or other remedies
pursuant to any of the Loan Documents. Any party may by summary proceedings
bring an action in court to compel arbitration of a Dispute. Any party who fails
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or refuses to submit to arbitration following a lawful demand by any other party
shall bear all costs and expenses incurred by such other party in compelling
arbitration of any Dispute.
(b) Governing Rules. Arbitration proceedings shall be administered
by the American Arbitration Association ("AAA") or such other administrator as
the parties shall mutually agree upon in accordance with the AAA Commercial
Arbitration Rules. All Disputes shall submitted to arbitration shall be resolved
in accordance with the Federal Arbitration Act (Title 9 of the United States
Code), notwithstanding any conflicting choice of law provision in any of the
Loan Documents. The arbitration shall be conducted at a location in Oregon
selected by the AAA or other administrator. If there is any inconsistency
between the terms hereof and any such rules, the terms and procedures set forth
herein shall control. All statutes of limitation applicable to any Dispute shall
apply to any arbitration proceeding. All discovery activities shall be expressly
limited to matters directly relevant to the Dispute being arbitrated. Judgment
upon any award rendered in an arbitration may be entered in any court having
jurisdiction; provided, however, that nothing contained herein shall be deemed
to be a waiver by any party that is a bank of the protections afforded to it
under 12 U.S.C. ss.91 or any similar applicable state law.
(c) No Waiver; Provisional Remedies; Self-Help and Foreclosure. No
provision hereof shall limit the right of any party to exercise self-help
remedies such as setoff, foreclosure against or sale of any real or personal
property collateral or security, or to obtain provisional or ancillary remedies,
including without limitation injunctive relief, sequestration, attachment,
garnishment or the appointment of a receiver, from a court of competent
jurisdiction before, after or during the pendency of any arbitration or other
proceeding. The exercise of any such remedy shall not waive the right of any
party to compel arbitration hereunder.
(d) Arbitrator Qualifications and Powers; Awards. Arbitrators must
be active members of the Oregon State Bar or retired judges of the state or
federal judiciary of Oregon, with expertise in the substantive laws applicable
to the subject matter of the Dispute. Arbitrators are empowered to resolve
Disputes by summary rulings in response to motions filed prior to the final
arbitration hearing. Arbitrators (i) shall resolve all Disputes in accordance
with the substantive law of the state of Oregon, (ii) may grant any remedy or
relief that a court of the state of Oregon could order or grant within the scope
hereof and such ancillary relief as is necessary to make effective any award,
and (iii) shall have the power to award recovery of all costs and fees, to
impose sanctions and to take such other actions as they deem necessary to the
same extent a judge could pursuant to the Federal Rules of Civil Procedure, the
Oregon Rules of Civil Procedure or other applicable law. Any Dispute in which
the amount in controversy is $5,000,000 or less shall be decided by a single
arbitrator who shall not render an award of greater than $5,000,000 (including
damages, costs, fees and expenses). By submission to a single arbitrator not
affiliated with any party, each party expressly waives any right or claim to
recover more than $5,000,000. Any Dispute in which the amount in controversy
exceeds $5,000,000 shall be decided by majority vote of a panel of three
arbitrators not affiliated with any party.
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(e) Judicial Review. Notwithstanding anything herein to the
contrary, in any arbitration in which the amount in controversy exceeds
$15,000,000, the arbitrators shall be required to make specific, written
findings of fact and conclusions of law. In such arbitrations (i) the
arbitrators shall not have the power to make any award which is not supported by
substantial evidence or which is based on legal error, (ii) an award shall not
be binding upon the parties unless the findings of fact are supported by
substantial evidence and the conclusions of law are not erroneous under the
substantive law of the state of Oregon, and (iii) the parties shall have in
addition to the grounds referred to in the Federal Arbitration Act for vacating,
modifying or correcting an award the right to judicial review of (A) whether the
findings of fact rendered by the arbitrators are supported by substantial
evidence, and (B) whether the conclusions of law are erroneous under the
substantive law of the state of Oregon. Judgment confirming an award in such a
proceeding may be entered only if a court determines the award is supported by
substantial evidence and not based on legal error under the substantive law of
the state of Oregon.
(f) Miscellaneous. To the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the Dispute with the
AAA. No arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business, by applicable law or
regulation, or to the extent necessary to exercise any judicial review rights
set forth herein. If more than one agreement for arbitration by or between the
parties potentially applies to a Dispute, the arbitration provision most
directly related to the Loan Documents or the subject matter of the Dispute
shall control. This arbitration provision shall survive termination, amendment
or expiration of any of the Loan Documents or any relationship between the
parties.
SECTION 11.15 WAIVER OF JURY TRIAL
EACH BORROWER AND BANK, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION IN ANY WAY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER OF THE LOAN DOCUMENTS OR ANY OF THE
TRANSACTIONS OR EVENTS REFERENCED HEREIN OR THEREIN OR CONTEMPLATED HEREBY OR
THEREBY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND/OR ANY OTHER OF THE LOAN DOCUMENTS. A COPY
OF THIS SECTION MAY BE FILED WITH ANY COURT AS WRITTEN EVIDENCE OF THE WAIVER OF
THE RIGHT TO TRIAL BY JURY AND THE CONSENT TO TRIAL BY COURT.
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SECTION 11.16 OREGON STATUTORY NOTICE
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY BANK
AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT
FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE
ENFORCEABLE.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
WILLIAMS CONTROLS, INC. AJAY SPORTS, INC.
By: By:
Title: Title:
LEISURE LIFE, INC. PALM SPRINGS GOLF, INC.
By: By:
Title: Title:
AJAY LEISURE PRODUCTS, INC. AGROTEC WILLIAMS, INC.
By: By:
Title: Title:
APTEK WILLIAMS, INC. GEOFOCUS, INC.
By: By:
Title: Title:
HARDEE WILLIAMS, INC. KENCO/WILLIAMS, INC.
By: By:
Title: Title:
NESC WILLIAMS, INC. PREMIER PLASTIC TECHNOLOGIES, INC.
By: By:
Title: Title:
WACCAMAW WHEEL WILLIAMS, INC. WILLIAMS CONTROLS INDUSTRIES, INC.
By: By:
Title: Title:
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WILLIAMS TECHNOLOGIES, INC. WILLIAMS WORLD TRADE, INC.
By: By:
Title: Title:
WILLIAMS AUTOMOTIVE, INC. TECHWOOD WILLIAMS, INC.
By: By:
Title: Title:
WELLS FARGO BANK, NATIONAL
ASSOCIATION
By:
Title:
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SCHEDULE I
Disclosure Schedule
SEE ATTACHED
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CONTENTS
ARTICLE I. DEFINITIONS .......................................... 1
SECTION 1.1 DEFINED TERMS ..................................... 1
SECTION 1.2 HEADINGS .......................................... 13
ARTICLE II. APPOINTMENT OF AGENT; JOINT AND SEVERAL
LIABILITY ............................................ 14
SECTION 2.1 APPOINTMENT OF AGENT .............................. 14
SECTION 2.2 AUTHORIZED REPRESENTATIVES ........................ 14
SECTION 2.3 JOINT AND SEVERAL LIABILITY; RIGHTS OF
CONTRIBUTION ......................................... 14
ARTICLE III. THE CREDITS .......................................... 17
SECTION 3.1 REVOLVING LOANS ................................... 17
SECTION 3.2 LETTER OF CREDIT FACILITY ......................... 22
SECTION 3.3 TERM LOAN I ....................................... 23
SECTION 3.4 TERM LOAN II ...................................... 23
SECTION 3.5 REAL ESTATE LOAN .................................. 24
SECTION 3.6 INTEREST/FEES ..................................... 24
SECTION 3.7 INTEREST OPTIONS .................................. 26
SECTION 3.8 CHANGE OF CIRCUMSTANCES ........................... 27
SECTION 3.9 LIBOR PREPAYMENTS; FUNDING LOSS
INDEMNIFICATION ...................................... 28
ARTICLE IV. COLLECTION AND ADMINISTRATION ........................ 30
SECTION 4.1 CASH COLLATERAL ACCOUNT ........................... 30
SECTION 4.2 STATEMENTS ........................................ 30
SECTION 4.3 PAYMENTS .......................................... 31
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SECTION 4.4 USE OF PROCEEDS ................................... 31
ARTICLE V. SECURITY ............................................. 32
SECTION 5.1 GRANT OF SECURITY INTEREST ....................... 32
SECTION 5.2 PERFECTION; DUTY OF CARE ......................... 32
SECTION 5.3 ADDITIONAL SECURITY ............................... 33
ARTICLE VI. REPRESENTATIONS AND WARRANTIES ....................... 33
SECTION 6.1 LEGAL STATUS ...................................... 33
SECTION 6.2 OWNERSHIP; SUBSIDIARIES ........................... 34
SECTION 6.3 AUTHORIZATION AND VALIDITY ........................ 34
SECTION 6.4 NO VIOLATION ...................................... 34
SECTION 6.5 NO CLAIMS ......................................... 34
SECTION 6.6 CORRECTNESS OF FINANCIAL STATEMENTS ............... 35
SECTION 6.7 INCOME TAX RETURNS ................................ 35
SECTION 6.8 NO SUBORDINATION .................................. 35
SECTION 6.9 ERISA ............................................. 35
SECTION 6.10 OTHER OBLIGATIONS ................................ 36
SECTION 6.11 ENVIRONMENTAL MATTERS ............................ 36
SECTION 6.12 LIENS ............................................ 36
SECTION 6.13 NO BURDENSOME RESTRICTIONS; NO DEFAULTS .......... 36
SECTION 6.14 NO OTHER VENTURES ................................ 36
SECTION 6.15 INVESTMENT COMPANY ACT ........................... 36
SECTION 6.16 INSURANCE ........................................ 37
SECTION 6.17 LABOR MATTERS .................................... 37
SECTION 6.18 FORCE MAJEURE .................................... 38
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SECTION 6.19 INTELLECTUAL PROPERTY ............................ 38
SECTION 6.20 CERTAIN INDEBTEDNESS ............................. 38
SECTION 6.21 SENIORITY ........................................ 38
SECTION 6.22 TRUTH, ACCURACY OF INFORMATION ................... 39
SECTION 6.23 CHIEF EXECUTIVE OFFICE AND OTHER LOCATIONS ....... 39
SECTION 6.24 RIGHTS TO PAYMENT ................................ 39
SECTION 6.25 FISCAL YEAR ...................................... 39
ARTICLE VII. CONDITIONS ........................................... 40
SECTION 7.1 CONDITIONS OF INITIAL EXTENSION OF CREDIT ......... 40
SECTION 7.2 CONDITIONS OF EACH EXTENSION OF CREDIT ............ 41
ARTICLE VIII. AFFIRMATIVE COVENANTS ................................ 42
SECTION 8.1 PUNCTUAL PAYMENTS ................................. 42
SECTION 8.2 ACCOUNTING RECORDS ................................ 42
SECTION 8.3 COLLATERAL REPORTING .............................. 42
SECTION 8.4 FINANCIAL STATEMENTS .............................. 43
SECTION 8.5 INSURANCE ......................................... 45
SECTION 8.6 COMPLIANCE ........................................ 46
SECTION 8.7 FACILITIES ........................................ 46
SECTION 8.8 TAXES AND OTHER LIABILITIES ....................... 46
SECTION 8.9 LITIGATION ........................................ 47
SECTION 8.10 NOTICE TO BANK ................................... 47
SECTION 8.11 CONDUCT OF BUSINESS .............................. 47
SECTION 8.12 PRESERVATION OF CORPORATE EXISTENCE, ETC. ........ 48
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SECTION 8.13 ACCESS ........................................... 48
SECTION 8.14 PERFORMANCE AND COMPLIANCE WITH OTHER
COVENANTS ............................................ 48
SECTION 8.15 APPLICATION OF PROCEEDS .......................... 49
SECTION 8.16 FISCAL YEAR ...................................... 49
SECTION 8.17 ENVIRONMENTAL .................................... 49
SECTION 8.18 FINANCIAL COVENANTS .............................. 49
SECTION 8.19 LIENS ............................................ 49
SECTION 8.20 FURTHER ASSURANCES ............................... 50
ARTICLE IX. NEGATIVE COVENANTS ................................... 50
SECTION 9.1 LIENS ............................................. 50
SECTION 9.2 INDEBTEDNESS ...................................... 50
SECTION 9.3 OPERATING LEASE OBLIGATIONS ....................... 51
SECTION 9.4 RESTRICTED PAYMENTS, REDEMPTIONS .................. 51
SECTION 9.5 MERGERS, STOCK ISSUANCES, SALE OF ASSETS,
ETC. ................................................. 51
SECTION 9.6 INVESTMENTS IN OTHER PERSONS ...................... 52
SECTION 9.7 CHANGE IN NATURE OF BUSINESS ...................... 52
SECTION 9.8 GUARANTIES ........................................ 52
SECTION 9.9 PLANS ............................................. 52
SECTION 9.10 ACCOUNTING CHANGES ............................... 53
SECTION 9.11 CANCELLATION OF INDEBTEDNESS OWED TO IT .......... 53
SECTION 9.12 NO SPECULATIVE TRANSACTIONS ...................... 53
SECTION 9.13 ENVIRONMENTAL .................................... 53
SECTION 9.14 CAPITAL EXPENDITURES ............................. 53
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SECTION 9.15 TRANSACTIONS WITH AFFILIATES ..................... 53
SECTION 9.16 NEW COLLATERAL LOCATION .......................... 54
ARTICLE X. EVENTS OF DEFAULT .................................... 54
SECTION 10.1 EVENTS OF DEFAULT ................................ 54
SECTION 10.2 REMEDIES ......................................... 56
SECTION 10.3 BANK AS BORROWERS' ATTORNEY ...................... 59
SECTION 10.4 EXCEPTIONS ....................................... 59
ARTICLE XI. TERM OF AGREEMENT AND MISCELLANEOUS .................. 59
SECTION 11.1 TERM ............................................ 59
SECTION 11.2 NO WAIVER ....................................... 61
SECTION 11.3 NOTICES ......................................... 61
SECTION 11.4 COSTS, EXPENSES AND ATTORNEYS' FEES ............. 62
SECTION 11.5 INDEMNIFICATION .................................. 62
SECTION 11.6 SUCCESSORS, ASSIGNMENT .......................... 63
SECTION 11.7 ENTIRE AGREEMENT; AMENDMENT ..................... 63
SECTION 11.8 NO THIRD PARTY BENEFICIARIES .................... 63
SECTION 11.9 TIME ............................................ 63
SECTION 11.10 SEVERABILITY OF PROVISIONS ..................... 64
SECTION 11.11 COUNTERPARTS ................................... 64
SECTION 11.12 GOVERNING LAW .................................. 64
SECTION 11.13 PATENT ASSIGNMENT AS COLLATERAL ................ 64
SECTION 11.14 ARBITRATION .................................... 64
SECTION 11.15 WAIVER OF JURY TRIAL ............................ 66
SECTION 11.16 OREGON STATUTORY NOTICE ......................... 67
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SCHEDULES
I Disclosure Schedule
EXHIBITS
A Promissory Notes
B Notice of Authorized Representatives
C Notice of Borrowing
D Letter of Credit Request
E Notice of Conversion or Continuation
F Continuing Unconditional Guaranty of Thomas W. Itin
G Periodic Reporting Requirements
H Opinions of ESOP Counsel
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Revolving Loans Promissory Note
$26,000,000 July 11, 1997
FOR VALUE RECEIVED, the undersigned, WILLIAMS CONTROLS, INC. a Delaware
corporation, AJAY SPORTS, INC., a Delaware corporation, LEISURE LIFE, INC., a
Tennessee corporation, PALM SPRINGS GOLF, INC., a Colorado corporation, AJAY
LEISURE PRODUCTS, INC., a Delaware corporation, AGROTEC WILLIAMS, INC., a
Delaware corporation, APTEK WILLIAMS, INC., a Delaware corporation, GEOFOCUS,
INC., a Florida corporation, HARDEE WILLIAMS, INC., a Delaware corporation,
KENCO/WILLIAMS, INC., a Delaware corporation, NESC WILLIAMS, INC., a Delaware
corporation, PREMIER PLASTIC TECHNOLOGIES, INC., a Delaware corporation,
WACCAMAW WHEEL WILLIAMS, INC., a Delaware corporation, WILLIAMS CONTROLS
INDUSTRIES, INC., a Delaware corporation, WILLIAMS TECHNOLOGIES, INC., a
Delaware corporation, WILLIAMS WORLD TRADE, INC., a Delaware corporation,
WILLIAMS AUTOMOTIVE, INC., a Delaware corporation, TECHWOOD WILLIAMS, INC., a
Delaware corporation, (each individually referred to as "Borrower" and all
collectively referred to as "Borrowers") hereby jointly and severally promise to
pay to the order of Wells Fargo Bank, National Association ("Bank") on the
Maturity Date the principal sum of Twenty-Six Million Dollars ($26,000,000), or
such lesser amount as shall equal the aggregate outstanding principal balance of
all Revolving Loans made by Bank to Borrowers pursuant to the Credit Agreement
referred to below.
This promissory note is one of the Notes referred to in, and subject to
the terms of, that certain Credit Agreement among Borrowers and Bank dated as of
July 11, 1997, (as amended, modified or supplemented from time to time, the
"Credit Agreement"). Capitalized terms used herein shall have the respective
meanings assigned to them in the Credit Agreement.
Borrower further promises to pay interest on the outstanding principal
balance hereof at the interest rates, and payable on the dates, set forth in the
Credit Agreement. All payments of principal and interest hereunder shall be made
to Bank at Bank's office in lawful money of the United States and in same day or
immediately available funds.
<PAGE>
Bank is authorized but not required to record the date and amount of each
advance made hereunder, the date and amount of each payment of principal and
interest hereunder, and the resulting unpaid principal balance hereof, in Bank's
internal records, and any such recordation shall be prima facie evidence of the
accuracy of the information so recorded; provided however, that Bank's failure
to so record shall not limit or otherwise affect Borrower's obligations
hereunder and under the Credit Agreement to repay the principal hereof and
interest hereon.
The Credit Agreement provides, among other things, for acceleration (which
in certain cases shall be automatic) of the maturity hereof upon the occurrence
of certain stated events, in each case without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by
Borrowers.
Borrowers' obligations evidenced by this promissory note are secured by
the collateral described in the Loan Documents. The Loan Documents describe the
rights of Bank and any other holder hereof with respect to the collateral.
In the event of any conflict between the terms of this promissory note and
the terms of the Credit Agreement, the terms of the Credit Agreement shall
control.
<PAGE>
This promissory note shall be governed by and construed in accordance with
the laws of the State of Oregon.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES, AND COMMITMENTS MADE BY BANK
AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT
FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE, MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE
ENFORCEABLE.
WILLIAMS CONTROLS, INC. AJAY SPORTS, INC.
By: By:
Title: Title:
LEISURE LIFE, INC. PALM SPRINGS GOLF, INC.
By: By:
Title: Title:
AJAY LEISURE PRODUCTS, INC. AGROTEC WILLIAMS, INC.
By: By:
Title: Title:
APTEK WILLIAMS, INC. GEOFOCUS, INC.
By: By:
Title: Title:
HARDEE WILLIAMS, INC. KENCO/WILLIAMS, INC.
By: By:
Title: Title:
NESC WILLIAMS, INC. PREMIER PLASTIC TECHNOLOGIES, INC.
By: By:
Title: Title:
WACCAMAW WHEEL WILLIAMS, INC. WILLIAMS CONTROLS INDUSTRIES, INC.
By: By:
Title: Title:
<PAGE>
WILLIAMS TECHNOLOGIES, INC. WILLIAMS WORLD TRADE, INC.
By: By:
Title: Title:
WILLIAMS AUTOMOTIVE, INC. TECHWOOD WILLIAMS, INC.
By: By:
Title: Title:
<PAGE>
Term Loan I Promissory Note
$4,430,000 July 11, 1997
FOR VALUE RECEIVED, the undersigned, WILLIAMS CONTROLS, INC. a Delaware
corporation, AJAY SPORTS, INC., a Delaware corporation, LEISURE LIFE, INC., a
Tennessee corporation, PALM SPRINGS GOLF, INC., a Colorado corporation, AJAY
LEISURE PRODUCTS, INC., a Delaware corporation, AGROTEC WILLIAMS, INC., a
Delaware corporation, APTEK WILLIAMS, INC., a Delaware corporation, GEOFOCUS,
INC., a Florida corporation, HARDEE WILLIAMS, INC., a Delaware corporation,
KENCO/WILLIAMS, INC., a Delaware corporation, NESC WILLIAMS, INC., a Delaware
corporation, PREMIER PLASTIC TECHNOLOGIES, INC., a Delaware corporation,
WACCAMAW WHEEL WILLIAMS, INC., a Delaware corporation, WILLIAMS CONTROLS
INDUSTRIES, INC., a Delaware corporation, WILLIAMS TECHNOLOGIES, INC., a
Delaware corporation, WILLIAMS WORLD TRADE, INC., a Delaware corporation,
WILLIAMS AUTOMOTIVE, INC., a Delaware corporation, TECHWOOD WILLIAMS, INC., a
Delaware corporation, (each individually referred to as "Borrower" and all
collectively referred to as "Borrowers") hereby jointly and severally promise to
pay to the order of Wells Fargo Bank, National Association ("Bank") the
principal sum of Four Million Dollars Four Hundred Thirty Thousand ($4,430,000)
on the earlier of (A) in monthly principal payments of $52,738.10 each on the
first day of each month beginning September 1, 1997 and the outstanding
principal balance on the Maturity Date or (B) as otherwise required pursuant to
the terms of the Credit Agreement referred to below.
This promissory note is one of the Notes referred to in, and subject to
the terms of, that certain Credit Agreement among Borrowers and Bank dated as of
July 11, 1997, (as amended, modified or supplemented from time to time, the
"Credit Agreement"). Capitalized terms used herein shall have the respective
meanings assigned to them in the Credit Agreement.
Borrower further promises to pay interest on the outstanding principal
balance hereof at the interest rates, and payable on the dates, set forth in the
Credit Agreement. All payments of principal and interest hereunder shall be made
to Bank at Bank's office in lawful money of the United States and in same day or
immediately available funds.
<PAGE>
Bank is authorized but not required to record the date and amount of each
payment of principal and interest hereunder, and the resulting unpaid principal
balance hereof, in Bank's internal records, and any such recordation shall be
prima facie evidence of the accuracy of the information so recorded; provided
however, that Bank's failure to so record shall not limit or otherwise affect
Borrower's obligations hereunder and under the Credit Agreement to repay the
principal hereof and interest hereon.
The Credit Agreement provides, among other things, for acceleration (which
in certain cases shall be automatic) of the maturity hereof upon the occurrence
of certain stated events, in each case without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by
Borrowers.
Borrowers' obligations evidenced by this promissory note are secured by
the collateral described in the Loan Documents. The Loan Documents describe the
rights of Bank and any other holder hereof with respect to the collateral.
In the event of any conflict between the terms of this promissory note and
the terms of the Credit Agreement, the terms of the Credit Agreement shall
control.
<PAGE>
This promissory note shall be governed by and construed in accordance with
the laws of the State of Oregon.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES, AND COMMITMENTS MADE BY BANK
AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT
FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE, MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE
ENFORCEABLE.
WILLIAMS CONTROLS, INC. AJAY SPORTS, INC.
By: By:
Title: Title:
LEISURE LIFE, INC. PALM SPRINGS GOLF, INC.
By: By:
Title: Title:
AJAY LEISURE PRODUCTS, INC. AGROTEC WILLIAMS, INC.
By: By:
Title: Title:
APTEK WILLIAMS, INC. GEOFOCUS, INC.
By: By:
Title: Title:
HARDEE WILLIAMS, INC. KENCO/WILLIAMS, INC.
By: By:
Title: Title:
NESC WILLIAMS, INC. PREMIER PLASTIC TECHNOLOGIES, INC.
By: By:
Title: Title:
WACCAMAW WHEEL WILLIAMS, INC. WILLIAMS CONTROLS INDUSTRIES, INC.
By: By:
Title: Title:
<PAGE>
WILLIAMS TECHNOLOGIES, INC. WILLIAMS WORLD TRADE, INC.
By: By:
Title: Title:
WILLIAMS AUTOMOTIVE, INC. TECHWOOD WILLIAMS, INC.
By: By:
Title: Title:
<PAGE>
Term Loan II Promissory Note
$1,000,000 July 11, 1997
FOR VALUE RECEIVED, the undersigned, WILLIAMS CONTROLS, INC. a Delaware
corporation, AJAY SPORTS, INC., a Delaware corporation, LEISURE LIFE, INC., a
Tennessee corporation, PALM SPRINGS GOLF, INC., a Colorado corporation, AJAY
LEISURE PRODUCTS, INC., a Delaware corporation, AGROTEC WILLIAMS, INC., a
Delaware corporation, APTEK WILLIAMS, INC., a Delaware corporation, GEOFOCUS,
INC., a Florida corporation, HARDEE WILLIAMS, INC., a Delaware corporation,
KENCO/WILLIAMS, INC., a Delaware corporation, NESC WILLIAMS, INC., a Delaware
corporation, PREMIER PLASTIC TECHNOLOGIES, INC., a Delaware corporation,
WACCAMAW WHEEL WILLIAMS, INC., a Delaware corporation, WILLIAMS CONTROLS
INDUSTRIES, INC., a Delaware corporation, WILLIAMS TECHNOLOGIES, INC., a
Delaware corporation, WILLIAMS WORLD TRADE, INC., a Delaware corporation,
WILLIAMS AUTOMOTIVE, INC., a Delaware corporation, TECHWOOD WILLIAMS, INC., a
Delaware corporation, (each individually referred to as "Borrower" and all
collectively referred to as "Borrowers") hereby jointly and severally promise to
pay to the order of Wells Fargo Bank, National Association ("Bank") the
principal sum of One Million Dollars ($1,000,000) on the earlier of (A)(i) in
monthly principal payments of $41,667 each on the first day of each month
beginning September 1, 1997, (ii) on or before January 31 of each year, an
amount equal to 50% of Williams Parent's consolidated Excess Cash Flow for the
immediately preceding fiscal year of Williams Parent; (iii) on or before April
30 of each year, an amount equal to 50% of Ajay Parent's consolidated Excess
Cash Flow for the immediately preceding fiscal year of Ajay Parent; (iv) within
three Business Days of the receipt by Borrower of additional equity (other than
equity contributed by another Borrower), an amount equal to the amount of (or
fair market value of) such additional equity; (v) upon the receipt thereof, an
amount equal to the net proceeds from the sale or liquidation of Kenco/Williams,
Inc. or of substantially all of its assets after deducting from such proceeds an
amount equal to the portion of the Revolving Loans and Term Loan I based on the
assets sold (or otherwise transferred) and applying such amount to the reduction
of the Revolving Loans and Term Loan I; and (vi) upon the receipt thereof, an
amount equal to the net proceeds from the sale of any asset out of the ordinary
course of business after deducting from such proceeds an amount equal to the
portion of the Revolving Loans, Term Loan I and Real Estate Loan based on the
<PAGE>
assets sold and applying such amount to the reduction of the Revolving Loans,
Term Loan I and Real Estate Loan. Borrowers shall repay the outstanding
principal balance of Term Loan II, together with all accrued and unpaid interest
and related fees on the earlier of June 1, 1999 or (B) as otherwise required
pursuant to the terms of the Credit Agreement referred to below.
This promissory note is one of the Notes referred to in, and subject to
the terms of, that certain Credit Agreement among Borrowers and Bank dated as of
July 11, 1997, (as amended, modified or supplemented from time to time, the
"Credit Agreement"). Capitalized terms used herein shall have the respective
meanings assigned to them in the Credit Agreement.
Borrower further promises to pay interest on the outstanding principal
balance hereof at the interest rates, and payable on the dates, set forth in the
Credit Agreement. All payments of principal and interest hereunder shall be made
to Bank at Bank's office in lawful money of the United States and in same day or
immediately available funds.
Bank is authorized but not required to record the date and amount of each
payment of principal and interest hereunder, and the resulting unpaid principal
balance hereof, in Bank's internal records, and any such recordation shall be
prima facie evidence of the accuracy of the information so recorded; provided
however, that Bank's failure to so record shall not limit or otherwise affect
Borrower's obligations hereunder and under the Credit Agreement to repay the
principal hereof and interest hereon.
The Credit Agreement provides, among other things, for acceleration (which
in certain cases shall be automatic) of the maturity hereof upon the occurrence
of certain stated events, in each case without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by
Borrowers.
Borrowers' obligations evidenced by this promissory note are secured by
the collateral described in the Loan Documents. The Loan Documents describe the
rights of Bank and any other holder hereof with respect to the collateral.
In the event of any conflict between the terms of this promissory note and
the terms of the Credit Agreement, the terms of the Credit Agreement shall
control.
This promissory note shall be governed by and construed in accordance with
the laws of the State of Oregon.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES, AND COMMITMENTS MADE BY BANK
AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT
<PAGE>
FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE, MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE
ENFORCEABLE.
WILLIAMS CONTROLS, INC. AJAY SPORTS, INC.
By: By:
Title: Title:
LEISURE LIFE, INC. PALM SPRINGS GOLF, INC.
By: By:
Title: Title:
AJAY LEISURE PRODUCTS, INC. AGROTEC WILLIAMS, INC.
By: By:
Title: Title:
APTEK WILLIAMS, INC. GEOFOCUS, INC.
By: By:
Title: Title:
HARDEE WILLIAMS, INC. KENCO/WILLIAMS, INC.
By: By:
Title: Title:
NESC WILLIAMS, INC. PREMIER PLASTIC TECHNOLOGIES, INC.
By: By:
Title: Title:
WACCAMAW WHEEL WILLIAMS, INC. WILLIAMS CONTROLS INDUSTRIES, INC.
By: By:
Title: Title:
<PAGE>
WILLIAMS TECHNOLOGIES, INC. WILLIAMS WORLD TRADE, INC.
By: By:
Title: Title:
WILLIAMS AUTOMOTIVE, INC. TECHWOOD WILLIAMS, INC.
By: By:
Title: Title:
<PAGE>
Real Estate Loan Promissory Note
$2,658,000 July 11, 1997
FOR VALUE RECEIVED, the undersigned, WILLIAMS CONTROLS, INC. a Delaware
corporation, AJAY SPORTS, INC., a Delaware corporation, LEISURE LIFE, INC., a
Tennessee corporation, PALM SPRINGS GOLF, INC., a Colorado corporation, AJAY
LEISURE PRODUCTS, INC., a Delaware corporation, AGROTEC WILLIAMS, INC., a
Delaware corporation, APTEK WILLIAMS, INC., a Delaware corporation, GEOFOCUS,
INC., a Florida corporation, HARDEE WILLIAMS, INC., a Delaware corporation,
KENCO/WILLIAMS, INC., a Delaware corporation, NESC WILLIAMS, INC., a Delaware
corporation, PREMIER PLASTIC TECHNOLOGIES, INC., a Delaware corporation,
WACCAMAW WHEEL WILLIAMS, INC., a Delaware corporation, WILLIAMS CONTROLS
INDUSTRIES, INC., a Delaware corporation, WILLIAMS TECHNOLOGIES, INC., a
Delaware corporation, WILLIAMS WORLD TRADE, INC., a Delaware corporation,
WILLIAMS AUTOMOTIVE, INC., a Delaware corporation, TECHWOOD WILLIAMS, INC., a
Delaware corporation, (each individually referred to as "Borrower" and all
collectively referred to as "Borrowers") hereby jointly and severally promise to
pay to the order of Wells Fargo Bank, National Association ("Bank") the
principal sum of Two Million Six Hundred Fifty-Eight Thousand Dollars
($2,658,000) on the earlier of (A) in monthly principal payments of $11,075 each
on the first day of each month beginning September 1, 1997 and the outstanding
principal balance on the Maturity Date or (B) as otherwise required pursuant to
the terms of the Credit Agreement referred to below.
This promissory note is one of the Notes referred to in, and subject to
the terms of, that certain Credit Agreement among Borrowers and Bank dated as of
July 11, 1997, (as amended, modified or supplemented from time to time, the
"Credit Agreement"). Capitalized terms used herein shall have the respective
meanings assigned to them in the Credit Agreement.
Borrower further promises to pay interest on the outstanding principal
balance hereof at the interest rates, and payable on the dates, set forth in the
Credit Agreement. All payments of principal and interest hereunder shall be made
to Bank at Bank's office in lawful money of the United States and in same day or
immediately available funds. <PAGE>
Bank is authorized but not required to record the date and amount of each
payment of principal and interest hereunder, and the resulting unpaid principal
balance hereof, in Bank's internal records, and any such recordation shall be
prima facie evidence of the accuracy of the information so recorded; provided
however, that Bank's failure to so record shall not limit or otherwise affect
Borrower's obligations hereunder and under the Credit Agreement to repay the
principal hereof and interest hereon.
The Credit Agreement provides, among other things, for acceleration (which
in certain cases shall be automatic) of the maturity hereof upon the occurrence
of certain stated events, in each case without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by
Borrowers.
Borrowers' obligations evidenced by this promissory note are secured by
the collateral described in the Loan Documents. The Loan Documents describe the
rights of Bank and any other holder hereof with respect to the collateral.
In the event of any conflict between the terms of this promissory note and
the terms of the Credit Agreement, the terms of the Credit Agreement shall
control.
This promissory note shall be governed by and construed in accordance with
the laws of the State of Oregon.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES, AND COMMITMENTS MADE BY BANK
AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT
FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE, MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE
ENFORCEABLE.
WILLIAMS CONTROLS, INC. AJAY SPORTS, INC.
By: By:
Title: Title:
LEISURE LIFE, INC. PALM SPRINGS GOLF, INC.
<PAGE>
By: By:
Title: Title:
AJAY LEISURE PRODUCTS, INC. AGROTEC WILLIAMS, INC.
By: By:
Title: Title:
APTEK WILLIAMS, INC. GEOFOCUS, INC.
By: By:
Title: Title:
HARDEE WILLIAMS, INC. KENCO/WILLIAMS, INC.
By: By:
Title: Title:
NESC WILLIAMS, INC. PREMIER PLASTIC TECHNOLOGIES, INC.
By: By:
Title: Title:
WACCAMAW WHEEL WILLIAMS, INC. WILLIAMS CONTROLS INDUSTRIES, INC.
By: By:
Title: Title:
WILLIAMS TECHNOLOGIES, INC. WILLIAMS WORLD TRADE, INC.
By: By:
Title: Title:
WILLIAMS AUTOMOTIVE, INC. TECHWOOD WILLIAMS, INC.
By: By:
Title: Title:
PROMISSORY NOTE
$2,340,000 Portland, Oregon
July 14, 1997
1. The Loan; Obligation to Pay. United States National Bank of
Oregon ("U. S. Bank") has agreed to make a loan to Ajay Sports, Inc.
("Borrower"), in the amount of $2,340,000. Borrower, for value received, hereby
promises to pay to the order of U. S. Bank the principal sum of $2,340,000, or
such lesser amount as is outstanding under this note, on the terms set forth in
this note. In addition, Borrower hereby promises to pay interest on the unpaid
principal amount owed under this note (which shall accrue on and after the date
of this note as specified in paragraph 2 below), together with all costs and
fees, including reasonable attorney fees, incurred by U. S. Bank in enforcing
Borrower3s obligations under this note. Principal hereof and the interest owing
under this note are payable to U. S. Bank at 111 S.W. Fifth Avenue (T-8),
Portland, Oregon 97204, or such other place as U. S. Bank may direct, in such
coin or currency of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts.
2. Interest Rate. From the date of this note until December 31,
1997, interest shall accrue on the principal amount owed hereunder at the Prime
Rate (as defined below) plus 1 percent per annum. From January 1, 1998, through
and including the date Borrower repays the principal amount owed under this note
in full, interest shall accrue on the principal amount owed hereunder at the
Prime Rate plus 2 percent per annum. As used in this note, the term "Prime Rate"
means the rate of interest that U. S. Bank from time to time establishes as its
prime rate. The Prime Rate is not necessarily the lowest rate of interest that
U. S. Bank collects from any borrower, or class of borrowers. At any time that
the Prime Rate is in effect under this note, the interest rate on the loan
evidenced hereby shall be adjusted concurrently with each change in the Prime
Rate. The interest rates specified in this paragraph are effective unless
Borrower is in default hereunder, in which case the principal balance owed
hereunder at U. S. Bank3s election shall bear interest at the Prime Rate plus 5
percent per annum.
3. Monthly Payments of Interest. On or before August 1, 1997, and
the first day of each month thereafter through and including June 1, 2000,
Borrower shall pay U. S. Bank all interest that has accrued on the principal
balance outstanding under this note through the last day of the preceding month.
All interest owed under this note shall be computed at the applicable rate based
on a 360-day year, applied to actual days elapsed. All payments made under this
note shall be applied first to any costs, fees, or expenses (including
reasonable attorney fees) that Borrower is obligated to pay hereunder, then to
interest, and finally to the principal amount owed under this note.
4. Loan Fees. Borrower shall pay U. S. Bank a loan fee equal to
P1
<PAGE>
one-half of 1 percent of the principal balance owed under this note as of
December 31, 1997. That fee shall be due and payable by Borrower on December 31,
1997. If Borrower has repaid the entire amount owed under this note prior to
December 31, 1997, no loan fee will be due hereunder.
5. Scheduled Principal Payments. After Term Loan II (as that term is
defined in the loan agreement of even date herewith among Borrower, certain of
its affiliates, and Wells Fargo Bank, National Association (the "Wells Fargo
Loan Agreement") has been repaid, Borrower shall make principal reduction
payments with respect to the obligation evidenced by this note as follows:
(a) $10,000 per month, starting on the tenth day of the first
calendar month after the month in which Term Loan II is repaid, and on the
tenth day of each month thereafter until the amount owed pursuant to this
note is repaid in full; and
(b) the Cash Flow Payments (as that term is defined below). "Cash
Flow Payments" means, with respect to each fiscal quarter of Williams
Controls, Inc. ("Williams"), and Borrower ending after Term Loan II is
repaid, (i) within 60 days after the end of each fiscal quarter of
Williams, an amount equal to 6.25 percent of Williams' consolidated Excess
Cash Flow (as that term is defined in the Wells Fargo Loan Agreement) for
the 12-month period ending with such quarter, and (ii) within 60 days
after the end of each fiscal quarter of Borrower, an amount equal to 6.25
percent of Borrower's consolidated Excess Cash Flow for the 12-month
period ending with such quarter; provided, however, in no event will the
period described in items (i) and (ii) begin before August 1, 1997, and
if, as a result of this proviso, the applicable period is less than 12
months, the percentage shall increase from 6.25 percent by an additional
2.083 percent for each month by which such period is less than 12 months
(for example, if the period is ten months, the applicable percentage shall
be 10.416 percent). Notwithstanding the foregoing, Borrower shall not be
required to pay a Cash Flow Payment due hereunder to the extent that such
payment would cause less than $1,000,000 in Available Credit (as that term
is defined in the Wells Fargo Loan Agreement) to exist under the Wells
Fargo Loan Agreement. However, to the extent that the minimum credit
availability requirement specified in the preceding sentence precludes
Borrower from paying a Cash Flow Payment due to U. S. Bank, Borrower is
obligated to pay, and shall pay, the unpaid portion of the Cash Flow
Payment as soon as, and to the extent that, more than $1,000,000 in
Available Credit exists under the Wells Fargo Loan Agreement.
At the time each Cash Flow Payment is due hereunder, Borrower shall deliver
to U. S. Bank a written report in a form reasonably satisfactory to U. S.
Bank detailing the calculation of the consolidated Excess Cash Flow of
Borrower and Williams for the 12-month period in question. If Borrower
P2
<PAGE>
contends that it is unable to pay all or any portion of a Cash Flow Payment
due under this note due to the $1,000,000 Available Credit limitation
described above, Borrower shall inform U. S. Bank of that fact in writing and
shall provide U. S. Bank all information reasonably requested by U. S. Bank
to enable U. S. Bank to verify Borrower's contention (including, but not
limited to, information regarding the Borrowing Base (as that term is defined
in the Wells Fargo Loan Agreement)).
In addition to the above-described payments, Borrower shall make
principal reduction payments with respect to the obligation evidenced by this
note in an aggregate amount not to exceed $200,000 as soon as, and to the extent
that, more than $2,000,000 in Available Credit exists under the Wells Fargo Loan
Agreement. Until Borrower has paid the full amount specified in the preceding
sentence, Borrower promptly will provide U. S. Bank with information reasonably
requested by U. S. Bank with respect to the Borrowing Base (as that term is
defined in the Wells Fargo Loan Agreement).
6. Payment in Full. Borrower's obligations pursuant to this note
shall mature and be due and payable in full upon the earlier of (a) July 1,
2000, or (b) acceleration of the amount owed hereunder in accordance with the
provisions of paragraph 8 of this note following the occurrence of an event of
default under this note. In the event of an acceleration of Borrower3s
obligations hereunder, the provisions of paragraphs 3 and 5 of this note calling
for scheduled payments of interest and principal no longer shall be applicable
and the entire amount of principal and interest hereunder shall be immediately
due and payable.
7. Prepayment. Borrower may prepay amounts outstanding under
this note that at any time, without a prepayment charge. Partial prepayments
do not relieve Borrower of its obligation to make the interest and principal
payments specified in paragraphs 3 and 5 of this note.
8. Default. If Borrower fails to make any payment required by this
note within 5 days of the day such payment is due, Borrower shall be in default
hereunder. If Borrower is in default hereunder, or if an event of default occurs
under the Consent, Reaffirmation, and Release Agreement of even date herewith
among U. S. Bank, Borrower, and certain affiliates of Borrower (the
"Agreement"), or any other documents that provide security for, or guaranties
of, Borrower3s obligation pursuant to this note (collectively referred to as the
"Loan Documents"), the principal balance of this note thereafter at U. S. Bank's
election shall bear interest at the Prime Rate plus 5 percent per annum,
initially determined on the date of Borrower's default and changing thereafter,
if and when the rate changes (which rate shall remain in effect until the
default is cured). Subject to the qualification specified in the following
sentence, if Borrower does not cure a default hereunder within 30 days of
receiving written notice from U. S. Bank of the default, U. S. Bank may without
further notice to Borrower immediately exercise any or all of its rights under
the Loan Documents and applicable law (subject to the terms and conditions of
the Intercreditor Agreement of even date herewith between U. S. Bank and Wells
Fargo Bank, National Association), and may declare the entire balance of
principal of this note and any accrued interest and all other indebtedness
secured or to be secured by the Loan Documents immediately due and payable in
the manner and with the effect provided in the Loan Documents. Notwithstanding
P3
<PAGE>
the foregoing, U. S. Bank hereby agrees that it will not accelerate the
principal balance owed under this note following the first uncured payment
default hereunder, but may do so following any subsequent uncured payment
default. U. S. Bank3s failure to exercise any remedies or rights, or failure to
immediately accelerate the debt evidenced by this note, shall not constitute a
waiver of U. S. Bank3s right to do so at any other time.
9. Costs and Attorney Fees. If Borrower defaults with respect to any
payment provided for in this note, or in case of an event of default under any
of the Loan Documents, U. S. Bank shall have the right, at Borrower's expense,
to consult an attorney or collection agency, to make any demand, enforce any
remedy, or otherwise protect its rights under this note and the Loan Documents.
Borrower hereby promises to pay all reasonable costs, fees, and expenses
incurred by U. S. Bank in connection with U. S. Bank's efforts to recover the
amount owed hereunder, including, without limitation, reasonable attorneys' fees
(with or without arbitration or litigation), arbitration and court costs,
collection agency charges, notice expenses and title search expenses, and the
failure of Borrower to pay the same shall, in itself, constitute a further and
additional default. In the event that a suit, action, or arbitration is
instituted to enforce this note, or any rights under the Loan Documents, the
prevailing party shall be entitled to recover, in addition to costs and expenses
provided by statute or otherwise, such sums as the court or arbitrator may
adjudge reasonable as attorney's fees in such proceeding and on any appeals from
any judgment or decree entered therein and the costs and attorney fees for
collection of the amount due therein.
Borrower further agrees to pay immediately upon demand all costs and
expenses of U. S. Bank including reasonable attorney's fees: (a) if U. S. Bank
seeks to have the property securing the loan evidenced by this note abandoned by
any estate in bankruptcy; (b) if U. S. Bank attempts to have any stay or
injunction prohibiting the enforcement or collection of this note, or the
enforcement of any other Loan Document, lifted by any bankruptcy court or other
court; (c) if U. S. Bank participates in any subsequent proceedings or appeals
from any order or judgment entered in any such proceeding; (d) if U. S. Bank
deems it appropriate to file a proof of claim, or in any other manner
participate in any bankruptcy or similar proceedings; or (e) if U. S. Bank
retains legal counsel in connection with any amendments or modifications of this
note, or any other Loan Document requested by Borrower, or required by or
resulting from Borrower's default hereunder or thereunder.
10. Notice. Any notice to be given pursuant to this note shall
be given as provided in the Agreement.
11. Strictly Enforceable Agreement. Time is of the essence. Borrower
agrees that it has received valuable consideration hereunder, that it signs this
note as maker and not as surety, and that any and all suretyship defenses hereby
are waived. Borrower for itself and all drawers and endorsers severally waives
presentment for payment, protest, and notice of protest of this note.
12. Arbitration. Either the holder of this note or Borrower may
require that all disputes, claims, counterclaims, and defenses, including those
P4
<PAGE>
based on or arising from any alleged tort (collectively referred to below as
"Claims") relating in any way to this note, or any transaction of which this
note is a part, be settled by binding arbitration in Portland, Oregon in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association and Title 9 of the U.S. Code. Notwithstanding the reference to the
American Arbitration Association rules in the preceding sentence, the American
Arbitration Association shall not be involved in or administer the arbitration
(unless the parties otherwise agree in writing). Rather, within 30 days of the
date of a request or demand for arbitration of any dispute or Claims hereunder,
the parties shall agree upon a mutually acceptable arbitrator (and, if they are
unable or unwilling to do so, an arbitrator shall be appointed pursuant to 9 USC
' 5). All Claims will be subject to the statutes of limitation applicable if
they were litigated. This provision is void if arbitration would jeopardize U.
S. Bank3s ability to proceed against collateral located outside of Oregon, or if
the effect of the arbitration procedure (as opposed to any Claims of Borrower)
would be to materially impair the holder's ability to realize on any collateral
securing the loan. One neutral arbitrator will decide all issues. The arbitrator
will be an active Oregon State Bar member in good standing. All arbitration
hearings will be held in Portland, Oregon. In addition to all other powers, the
arbitrator shall have the exclusive right to determine all issues of
arbitrability. Judgment on any arbitration award may be entered in any court
with jurisdiction. Each party has the right before, during, and after any
arbitration to exercise any number of the following remedies, in any order or
concurrently:
(a) Setoff,
(b) Self-help repossession,
(c) Judicial or nonjudicial foreclosure against real or
personal property collateral, or
(d) Provisional remedies, including injunction, appointment of
receiver, attachment, claim and delivery, and replevin.
This arbitration clause cannot be modified or waived by either party except in
writing, which writing must refer to this arbitration clause and be signed by
both the holder of this note and Borrower.
13. Assignment. U. S. Bank may assign, transfer, or participate its
right, title, interest, and obligation in and under this note and the Loan
Documents without Borrower's consent to another bank, a financial institution,
an insurance company, an institutional lender, or an institutional investor.
Borrower may not assign its rights or transfer its obligations under this note
without U. S. Bank's prior, written consent.
14. Governing Law. This note is governed by the laws of the state of
Oregon, without regard to conflict of laws principles; provided, however, that
to the extent the holder of this note has greater rights or remedies under
federal law, this provision shall not be deemed to deprive the holder of such
rights and remedies as may be available under federal law.
P5
<PAGE>
Under Oregon law, most agreements, promises, and commitments made by
U. S. Bank after October 3, 1989 concerning loans and other credit extensions
which are not for personal, family, or household purposes or secured solely by
the borrower's residence must be in writing, express consideration, and be
signed by U. S. Bank to be enforceable.
AJAY SPORTS, INC.
By
Thomas W. Itin
President
P6
<PAGE>
THIS MORTGAGE SECURES A PROMISSORY NOTE IN THE PRINCIPAL AMOUNT OF $2,340,000
THAT HAS BEEN EXECUTED AND DELIVERED OUTSIDE THE STATE OF FLORIDA. FLORIDA
DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $8,190 AND FLORIDA INTANGIBLE PERSONAL
PROPERTY TAXES IN THE AMOUNT OF $4,680 ARE BEING PAID UPON RECORDATION HEREOF.
MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT, AND FIXTURE FILING
(Aptek Williams, Inc.)
THIS MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT, AND FIXTURE
FILING (this "Mortgage") is made as of the 14th day of July, 1997, by and
between Aptek Williams, Inc. ("Mortgagor"), whose address is 700 N.W. 12th
Avenue, Deerfield Beach, Florida 33442, and United States National Bank of
Oregon ("Mortgagee"), whose address is 111 S.W. Fifth Avenue (T-8), Portland,
Oregon 97204.
RECITALS
A. Mortgagee made a loan to Williams Controls, Inc.
("Williams"), in the amount of $30,000,000, which loan was evidenced by a
Revolving Loan Note and a Revolving Loan Agreement dated as of July 25, 1995
(as such note and loan agreement have been amended from time to time). That
loan is due and payable in full on June 30, 1997.
B. Williams is obligated to Mortgagee pursuant to a guaranty of
the obligations of Ajay Sports, Inc. ("Borrower"), to Mortgagee in the
maximum principal amount of $13,500,000. Borrower's obligations to Mortgagee
are due and payable in full on June 30, 1997.
C. Mortgagor has guaranteed the payment and performance of
Williams' obligations described in Recitals A and B above.
D. Williams and Borrower have located an alternative source of
financing for the majority of their obligations to Mortgagee, which would result
in payment of all but $2,340,000 (the "Residual Debt") of their obligations to
Mortgagee. Borrower has offered to execute and deliver to Mortgagee a promissory
note in the principal amount of $2,340,000 (the "Note"), and to repay the
Residual Debt pursuant to the terms set forth in that note.
E. Mortgagee is willing to agree to allow Borrower to repay
the Residual Debt pursuant to the terms of the Note.
F. As a condition to accepting payment of the balance of the
Existing Obligation on the terms set forth in the Note, Mortgagee has required
that Mortgagor execute and deliver this Mortgage to secure Borrower's
obligations to Mortgagee.
NOW, THEREFORE, for good and valuable consideration, receipt of
which is hereby acknowledged, and for the purpose of securing the obligations
described in Section 1.1 of this Mortgage, Mortgagor irrevocably mortgages to
Mortgagee all of Mortgagor3s right, title, and interest in and to the real
property located in Broward County, Florida, more particularly described in
Exhibit 1 attached hereto and incorporated herein (the "Property");
TOGETHER WITH all interests, estates, and rights that Mortgagor now
has or hereafter may acquire in (1) the Property; (2) any and all options,
agreements, and contracts for the purchase or sale of all or any part or parts
of the Property or interests in the Property; (3) all easements, rights-of-way,
and rights used in connection with the Property or as a means of access to the
Property; and (4) all tenements, hereditaments, and appurtenances in any manner
belonging, relating, or appertaining to the Property;
TOGETHER WITH all interests, estates, and rights of Mortgagor, now
owned or hereafter acquired, in and to any land lying within any streets,
sidewalks, alleys, strips, and gores adjacent to or used in connection
therewith;
TOGETHER WITH all rights, titles, and interests of Mortgagor, now
owned or hereafter acquired, in and to any and all buildings and other
improvements of every nature now or hereafter located on the Property and all
fixtures, machinery, equipment, and other personal property located on the
Property or attached to, contained in, or used in any such buildings and other
improvements, and all appurtenances and additions to and substitutions and
replacements of the Property (all of the foregoing being collectively referred
to below as the "Improvements");
TOGETHER WITH any and all mineral, oil and gas rights, air rights,
development rights, water rights, water stock, and water service contracts,
drainage rights, zoning rights, and other similar rights or interests that
benefit or are appurtenant to the Property or the Improvements or both, and any
of their proceeds;
TOGETHER WITH all present and future rights in and to the trade name
by which all or any portion of the Property and the Improvements are known; all
books and records relating to the use and operation of all or any portion of the
Property and Improvements; all right, title, and interest of Mortgagor in, to,
and under all present and future plans, specifications, and contracts relating
to the design, construction, management, or inspection of any Improvements; all
rights, titles, and interests of Mortgagor in and to all present and future
licenses, permits, approvals, and agreements with or from any municipal
corporation, county, state, or other governmental or quasi-governmental entity
or agency relating to the development, improvement, division, or use of all or
any portion of the Property to the extent such trade names, licenses, permits,
approvals, and agreements are assignable by law; and all other general
intangibles relating to the Property, the Improvements, or their use and
operation;
TOGETHER WITH all rights of Mortgagor in and to any escrow or
withhold agreements, title insurance, surety bonds, warranties, management
contracts, leasing and sales agreements, and service contracts that are in any
way relevant to the ownership, development, improvement, management, sale, or
use of all or any portion of the Property or any of the Improvements;
TOGETHER WITH Mortgagor3s rights under any payment, performance, or
other bond in connection with construction of any Improvements, and all
construction materials, supplies, and equipment delivered to the Property or
intended to be used in connection with the construction of any Improvements; and
TOGETHER WITH all rights, interests, and claims that Mortgagor now
has or may acquire with respect to any damage to or taking of all or any part of
the Property or the Improvements, including without limitation any and all
proceeds of insurance in effect with respect to the Improvements, any and all
awards made for taking by eminent domain or by any proceeding or purchase in
lieu thereof, of the whole or any part of the Property or the Improvements, and
any and all awards resulting from any other damage to the Property or the
Improvements, all of which are assigned to Mortgagee, and, subject to the terms
of this Mortgage, Mortgagee is authorized to collect and receive such proceeds,
to give proper receipts and acquittances for the proceeds, and to apply them to
the Obligations secured by this Mortgage.
All of the above is sometimes referred to below as the "Mortgaged
Property."
This Mortgage, the Note, the guaranty agreement executed by
Mortgagor in favor of Mortgagee, the Consent, Reaffirmation, and Release
Agreement of even date herewith among Williams, Borrower, Mortgagee, Mortgagor,
and others, and all other agreements or instruments executed at any time in
connection therewith, as they may be amended or supplemented from time to time,
are sometimes collectively referred to below as the "Loan Documents."
TO PROTECT THE SECURITY OF THIS MORTGAGE, MORTGAGOR HEREBY COVENANTS
AND AGREES AS FOLLOWS:
<PAGE>
ARTICLE I
Particular Covenants and Warranties of Mortgagor
I.1 Obligations Secured. This Mortgage secures the following
obligations, which are collectively referred to in this Mortgage as the
"Obligations":
(1) The payment of all indebtedness evidenced by the Note, including
but not limited to principal and interest, and the performance of all covenants
and obligations of Borrower under the Note, whether such payment and performance
is now due or becomes due in the future;
(2) The payment and performance of all covenants and obligations in
this Mortgage, in the other Loan Documents, and in all other security
agreements, notes, agreements, and undertakings now existing or hereafter
executed by Mortgagor with or for the benefit of Mortgagee; and
(3) The payment and performance of any and all other indebtedness
and obligations of Mortgagor to Mortgagee of any nature whatsoever, whether
direct or indirect, primary or secondary, joint or several, liquidated or
unliquidated, whenever and however arising, and whether or not reflected in a
written agreement or instrument.
I.2 Payment of Indebtedness; Performance of Covenants. Borrower and
Mortgagor shall duly and punctually pay and perform all of the Obligations. The
maturity date of the Note when all principal and interest shall be due and
payable is July 1, 2000 (or such earlier date, if any, on which the amount owed
under the Note is accelerated following an uncured event of default under the
Note.
I.3 Property. Mortgagor warrants that it holds good and merchantable
title to the Property and the Improvements, free and clear of all liens,
encumbrances, reservations, restrictions, easements, and adverse claims except
those specifically listed in Exhibit 2. Mortgagor covenants that it shall
forever defend Mortgagee3s rights under this Mortgage and the priority of this
Mortgage against the adverse claims and demands of all persons.
I.4 Further Assurances.
(1) Mortgagor shall execute, acknowledge, and deliver, from time to
time, such further instruments as Mortgagee may require to accomplish the
purposes of this Mortgage.
(2) Mortgagor, immediately upon the execution and delivery of this
Mortgage, and thereafter from time to time, shall cause this Mortgage, any
supplemental security agreement, mortgage, or deed of trust and each instrument
of further assurance, to be recorded and rerecorded in such manner and in such
places as may be required by any present or future law in order to perfect, and
continue the perfection of, the lien and estate of this Mortgage.
(3) Mortgagor shall pay all filing and recording fees, and all
expenses incident to the execution, filing, recording, and acknowledgment of
this Mortgage; any security agreement, mortgage, or deed of trust supplemental
hereto and any instrument of further assurance; and all federal, state, county,
and municipal taxes, assessments and charges arising out of or in connection
with the execution, delivery, filing, and recording of this Mortgage, any
supplemental security agreement, mortgage, or deed of trust and any instrument
of further assurance.
I.5 Compliance with Laws. Mortgagor further represents, warrants,
and covenants that:
(1) The Property, if developed, has been developed, and all
Improvements, if any, have been constructed and maintained, in full compliance
with all applicable laws, statutes, ordinances, regulations, and codes of all
federal, state, and local governments (collectively "Laws"), and all covenants,
conditions, easements, and restrictions affecting the Property (collectively
"Covenants"); and
(2) Mortgagor and its operations upon the Property currently comply,
and will hereafter comply in all material respects with all applicable Laws and
Covenants.
I.6 Definitions; Environmental Covenants; Warranties and
Compliance.
(1) For purposes of this section, "Environmental Law" means any
federal, state, or local law, statute, ordinance, or regulation pertaining to
Hazardous Substances, health, industrial hygiene, or environmental conditions,
including without limitation the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 ("CERCLA"), as amended, 42 USC
"9601-9675, and the Resource Conservation and Recovery Act of 1976 ("RCRA"), as
amended, 42 USC "6901-6992.
(2) For the purposes of this section, "Hazardous Substance"
includes, without limitation, any material, substance, or waste that is or
becomes regulated or that is or becomes classified as hazardous, dangerous, or
toxic under any federal, state, or local statute, ordinance, rule, regulation,
or law.
(3) Mortgagor will not use, generate, manufacture, produce, store,
release, discharge, or dispose of on, under, or about the Property, or the
Property3s groundwater, or transport to or from the Property, any Hazardous
Substance and will not permit any other person to do so, except for such
Hazardous Substances that may be used in the ordinary course of Mortgagor3s
business and in compliance with all Environmental Laws, including but not
limited to those relating to licensure, notice, and recordkeeping.
(4) Mortgagor will keep and maintain the Property in compliance
with, and shall not cause or permit all or any portion of the Property,
including groundwater, to be in violation of any Environmental Law.
(5) Mortgagor shall give prompt written notice to Mortgagee of:
(a) Any proceeding, inquiry, or notice by or from any governmental
authority with respect to any alleged violation of any Environmental Law
or the presence of any Hazardous Substance on the Property or the
migration of any Hazardous Substance from or to other premises;
(b) All known claims made or threatened by any person against
Mortgagor or with respect to the Property or Improvements relating to any
loss or injury resulting from any Hazardous Substance or the violation of
any Environmental Law;
(c) The existence of any Hazardous Substance on or about all or
any portion of the Property; or
(d) Mortgagor3s discovery of any occurrence or condition on any real
property adjoining or in the vicinity of the Property that could in
Mortgagor3s judgment cause any restrictions on the ownership, occupancy,
transferability, or use of the Property under any Environmental Law.
(6) Mortgagor shall promptly provide to Mortgagee copies of all
reports, documents, and notices provided to or received from any agency
administering any Environmental Laws. Mortgagee shall have the right to join and
participate, in its own name if it so elects, in any legal proceeding or action
initiated with respect to the Property or Improvements in connection with any
Environmental Law and have its attorney fees in connection with such an action
paid by Mortgagor, if Mortgagee determines that such participation is reasonably
necessary to protect its interest in the Mortgaged Property.
(7) If, at any time, Mortgagee has reason to believe that any
release, discharge, or disposal of any Hazardous Substance affecting the
Property or Improvements has occurred or is threatened, or if Mortgagee has
reason to believe that a violation of an Environmental Law has occurred or may
occur with respect to the Property or Improvements, Mortgagee may require
Mortgagor to obtain or may itself obtain, at Mortgagor3s expense, an
environmental assessment of such condition or threatened condition by a
qualified environmental consultant. Mortgagor shall promptly provide to
Mortgagee a complete copy of any environmental assessment obtained by Mortgagor.
(8) In the event that any investigation, site monitoring,
containment, cleanup, removal, restoration, or other remedial work of any kind
or nature (the "Remedial Work") is required under any applicable Environmental
Law, any judicial order, or by any governmental agency or person because of, or
in connection with, the current or future presence, suspected presence, release
or suspected release of a Hazardous Substance on, under, or about all or any
portion of the Property, or the contamination (whether presently existing or
occurring after the date of this Mortgage) of the buildings, facilities, soil,
groundwater, surface water, air, or other elements on or under any other
property as a result of Hazardous Substances emanating from the Property,
Mortgagor shall, within 30 days after written demand by Mortgagee for
Mortgagor3s performance under this provision (or such shorter period of time as
may be required under any applicable law, regulation, order, or agreement),
commence and thereafter diligently prosecute to completion, all such Remedial
Work. All costs and expenses of such Remedial Work shall be paid by Mortgagor
including, without limitation, Mortgagee3s reasonable attorney fees and costs
incurred in connection with monitoring or review of the legal aspects of such
Remedial Work. In the event Mortgagor shall fail to timely commence, or cause to
be commenced, such Remedial Work, Mortgagee may, but shall not be required to,
cause such Remedial Work to be performed. In that event, all costs and expenses
incurred in connection with the Remedial Work shall become part of the
Obligations secured by this Mortgage and shall bear interest until paid at the
rate provided in the Note.
(9) Mortgagor shall hold Mortgagee, and its directors, officers,
employees, agents, successors, and assigns, harmless from, indemnify them for,
and defend them against any and all losses, damages, liens, costs, expenses, and
liabilities directly or indirectly arising out of or attributable to any
violation of any Environmental Law, any breach of Mortgagor3s warranties in this
Section 1.6, or the use, generation, manufacture, production, storage, release,
threatened release, discharge, disposal, or presence of a Hazardous Substance
on, under, or about the Property, including without limitation the costs of any
required repair, cleanup, containment, or detoxification of the Property, the
preparation and implementation of any closure, remedial or other required plans,
attorney fees and costs (including but not limited to those incurred in any
proceeding and in any review or appeal), fees, penalties, and fines.
(10) Mortgagor represents and warrants to Mortgagee that:
(a) Neither the Property nor Mortgagor is in violation of or subject
to any existing, pending, or threatened investigation by any governmental
authority under any Environmental Law;
(b) Mortgagor has not and is not required by any Environmental
Law to obtain any permit or license other than those it has obtained to
construct or use the Improvements; and
(c) To the best of Mortgagor3s knowledge, no Hazardous Substance has
ever been used, generated, manufactured, produced, stored, released,
discharged, or disposed of on, under, or about the Property in violation
of any Environmental Law.
(11) All representations, warranties, and covenants in this Section
1.6 shall survive the satisfaction of the Obligations, the release or
satisfaction of this Mortgage, or the foreclosure of this Mortgage by any means.
I.7 Maintenance and Improvements. Mortgagor shall not permit all or
any part of the Improvements to be removed, demolished, or materially altered
without Mortgagee3s prior written consent; provided, however, that Mortgagor may
remove, demolish, or materially alter such Improvements as become obsolete in
the usual conduct of Mortgagor3s business, if the removal or material alteration
does not materially detract from the operation of the Mortgagor3s business and
if all Improvements that are demolished or removed are promptly replaced with
Improvements of like value and quality. Mortgagor shall maintain every portion
of the Property and Improvements in good repair, working order, and condition,
except for reasonable wear and tear, and shall at Mortgagee3s election restore,
replace, or rebuild all or any part of the Improvements now or hereafter damaged
or destroyed by any casualty (whether or not insured against or insurable) or
affected by any Condemnation (as defined in Section 2.1 below). Mortgagor shall
not commit, permit, or suffer any waste, strip, or deterioration of the
Mortgaged Property.
I.8 Liens. Mortgagor shall pay when due all claims for labor,
materials, or supplies that if unpaid might become a lien on all or any portion
of the Mortgaged Property. Mortgagor shall not create, suffer, or permit to be
created, any mortgage, deed of trust, lien, security interest, charge, or
encumbrance upon the Mortgaged Property prior to, on a parity with, or
subordinate to the lien of this Mortgage, except as specifically provided in
Exhibit 2.
I.9 Impositions.
(1) Mortgagor shall pay or cause to be paid, when due and before any
fine, penalty, interest, or cost attaches, all taxes, assessments, fees, levies,
and all other governmental and nongovernmental charges of every nature now or
hereafter assessed or levied against any part of the Mortgaged Property
(including, without limitation, levies or charges resulting from Covenants), or
on the lien or estate of Mortgagee (collectively, the "Impositions"); provided,
however, that if by law any such Imposition may be paid in installments, whether
or not interest shall accrue on the unpaid balance, Mortgagor may pay the same
in installments, together with accrued interest on the unpaid balance, as the
same become due, before any fine, penalty, or cost attaches.
(2) Mortgagor may, at its expense and after prior notice to
Mortgagee, contest by appropriate legal, administrative, or other proceedings
conducted in good faith and with due diligence, the amount, validity, or
application, in whole or in part, of any Imposition or lien on the Mortgaged
Property or any claim of any laborer, materialman, supplier, or vendor or lien,
and may withhold payment of the same pending completion of such proceedings if
permitted by law, provided that (a) such proceedings shall suspend collection
from the Mortgaged Property; (b) no part of or interest in the Mortgaged
Property will be sold, forfeited, or lost if Mortgagor pays the amount or
satisfies the condition being contested, and Mortgagor would have the
opportunity to do so in the event of Mortgagor3s failure to prevail in the
contest; (c) neither Mortgagee nor Mortgagor shall, by virtue of such permitted
contest, be exposed to any risk of liability for which Mortgagor has not
furnished additional security as provided in clause (d) below; and (d) Mortgagor
shall have furnished to Mortgagee cash, corporate surety bond, or other
additional security in respect of the claim being contested or the loss or
damage that may result from Mortgagor3s failure to prevail in such contest in an
amount sufficient to discharge the Imposition and all interest, costs, attorney
fees, and other charges that may accrue in connection with the Imposition.
Mortgagor shall promptly satisfy any final judgment.
(3) Mortgagor shall furnish to Mortgagee, promptly upon request,
satisfactory evidence of the payment of all Impositions. Mortgagee is hereby
authorized to request and receive from the responsible governmental and
nongovernmental personnel written statements with respect to the accrual and
payment of all Impositions.
I.10 Books and Records; Inspection of the Property. Mortgagor shall
keep complete and accurate records and books of account with respect to the
Mortgaged Property and its operation in accordance with generally accepted
accounting principles consistently applied. Mortgagor shall permit Mortgagee and
its authorized representatives to enter and inspect the Property and the
Improvements, and to examine and make copies or extracts of the records and
books of account of the Mortgagor with respect to the Property and the
Improvements, all at such reasonable times as Mortgagee may choose.
I.11 Limitations of Use. Mortgagor shall not initiate, join in, or
consent to any rezoning of the Property or any change in any Covenant or other
public or private restrictions limiting or defining the uses that may be made of
all or any part of the Property and the Improvements without the prior written
consent of Mortgagee.
I.12 Insurance.
(1) Property and Other Insurance. Mortgagor shall maintain for the
benefit of Mortgagee, during the life of this Mortgage, insurance policies,
insuring the Mortgaged Property against all insurable hazards, casualties and
contingencies (including, without limitation, loss of rentals or business
interruption), as Mortgagee may require (it being agreed that Mortgagee shall
not require any insurance not customarily required by other lenders in similar
loan transactions in Broward County, Florida), and shall pay promptly when due
any premiums on such insurance policies and on any renewals thereof. Without
limiting the generality of the foregoing, Mortgagor shall maintain insurance
policies as provided in the Credit Agreement among Wells Fargo Bank, National
Association ("WFB"), Mortgagor, Borrower, Williams and others (the "Credit
Agreement"), and the terms of the Credit Agreement relating to insurance are
incorporated herein by this reference.
(2) Insurance Proceeds. All proceeds from any insurance on the
Mortgaged Property shall be used in accordance with the provisions of Section
1.14.
I.13 Assignments of Policies upon Foreclosure. In the event of
foreclosure of the lien of this Mortgage or other transfer of title, or
assignment of the Mortgaged Property in whole or in part, all right, title, and
interest of Mortgagor in and to all policies of insurance procured under Section
1.12 shall inure to the benefit of and pass to the successors in interest of
Mortgagor or the purchaser or grantee of all or any part of the Mortgaged
Property.
I.14 Casualty/Loss Restoration.
(1) After the occurrence of any casualty to the Property, whether or
not required to be insured against as provided in this Mortgage, Mortgagor shall
give prompt written notice of the casualty to Mortgagee, specifically describing
the nature and cause of such casualty and the extent of the damage or
destruction to the Mortgaged Property. Mortgagee may make proof of loss if it is
not made promptly and to Mortgagee3s satisfaction by Mortgagor.
(2) Subject to the rights of any superior mortgagee or trust deed
beneficiary as provided in Section 6.8 below, Mortgagor assigns to Mortgagee all
insurance proceeds that Mortgagor may be entitled to receive with respect to any
casualty. All insurance proceeds shall be held by Mortgagee as collateral to
secure performance of the Obligations secured by this Mortgage, provided that
Mortgagor is not in default under this Mortgage, Mortgagee shall permit such
amounts of the insurance proceeds to be used by Mortgagor for repair or
restoration of the Improvements (subject to reasonable disbursement procedures
established by Mortgagee) if Mortgagor can demonstrate, to Mortgagee3s
reasonable satisfaction, that subsequent to such repair or restoration, the
Mortgaged Property shall have a value not less than the value of the property
immediately prior to the casualty. Any excess insurance proceeds shall be
applied by Mortgagee toward payment of all or part of the indebtedness secured
by this Mortgage in such order as Mortgagee may determine.
I.15 Actions to Protect Mortgaged Property; Reserves.
(1) If Mortgagor shall fail to obtain the insurance required by
Section 1.12, make the payments required by Section 1.9 (other than payments
that Mortgagor is contesting in accordance with Section 1.9(2)), or perform or
observe any of its other covenants or agreements under this Mortgage, Mortgagee
may, without obligation to do so, obtain or pay the same or take other action
that it deems appropriate to remedy such failure. All sums, including reasonable
attorney fees, so expended or expended to maintain the lien or estate of this
Mortgage or its priority, or to protect or enforce any of Mortgagee3s rights, or
to recover any indebtedness secured by this Mortgage, shall be a lien on the
Mortgaged Property, shall be secured by this Mortgage, and shall be paid by
Mortgagor upon demand, together with interest at the rate provided in the Note.
No payment or other action by Mortgagee under this section shall impair any
other right or remedy available to Mortgagee or constitute a waiver of any
default. The following notice is given pursuant to ORS 746.201:
WARNING
Unless Mortgagor provides Mortgagee with evidence of the insurance
coverage as required herein, Mortgagee may purchase insurance at
Mortgagor3s expense to protect Mortgagee3s interest. This insurance may,
but need not, also protect Mortgagor3s interest. If the collateral becomes
damaged, the coverage Mortgagee purchases may not pay any claim Mortgagor
makes or any claim made against Mortgagor. Mortgagor may later cancel this
coverage by providing evidence that Mortgagor has obtained property
coverage elsewhere.
Mortgagor is responsible for the cost of any insurance purchased by
Mortgagee. The cost of this insurance may be added to the indebtedness
secured hereby. If the cost is added to the indebtedness secured hereby,
the interest rate on the indebtedness secured hereby will apply to this
added amount. The effective date of coverage may be the date your prior
coverage lapsed or the date you failed to provide proof of coverage.
The coverage Mortgagee purchases may be considerably more expensive
than insurance Mortgagor can obtain on Mortgagor3s own and may not satisfy
any need for property damage coverage or any mandatory liability insurance
requirements imposed by applicable law.
(2) If Mortgagor fails to promptly perform any of its obligations
under Section 1.9 or 1.12 of this Mortgage, Mortgagee may require Mortgagor
thereafter to pay and maintain with Mortgagee reserves for payment of such
obligations. In that event, Mortgagor shall pay to Mortgagee each month a sum
estimated by Mortgagee to be sufficient to produce, at least 20 days before due,
an amount equal to the Impositions and/or insurance premiums. If the sums so
paid are insufficient to satisfy any Imposition or insurance premium when due,
Mortgagor shall pay any deficiency to Mortgagee upon demand. The reserves may be
commingled with Mortgagee3s other funds, and Mortgagee shall not be required to
pay interest to Mortgagor on such reserves. Mortgagee shall not hold the reserve
in trust for Mortgagor, and Mortgagee shall not be the agent of Mortgagor for
payment of the taxes and assessments required to be paid by Mortgagor.
I.16 Estoppel Certificates. Mortgagor, within five days of
Mortgagee3s request, shall furnish Mortgagee a written statement, duly
acknowledged, of the amount of the Obligations secured by this Mortgage and
whether any offsets or defenses exist against such Obligations. If Mortgagor
shall fail to furnish such a statement within the time allowed, Mortgagee shall
be authorized, as Mortgagor3s attorney-in-fact, to execute and deliver such
statement. Upon request, Mortgagor shall also use its best efforts to obtain and
deliver to Mortgagee a written certificate from each lessee of all or any
portion of the Property that its lease is in effect, that there are no defaults
by the lessor under the lease, and that rent is not paid more than 30 days in
advance.
1.17 Title Insurance. Prior to or contemporaneously with the
execution of this Mortgage, Mortgagor will provide Mortgagee a mortgagee's
policy of title insurance (extended coverage) in the amount of $2,100,000,
issued by an insurer reasonably satisfactory to Mortgagee and in a form
reasonably satisfactory to Mortgagee, insuring the validity and priority of
Mortgagee's lien against the Mortgaged Property arising by virtue of this
Mortgage, subject only to standard preprinted exceptions and the matters
identified in Exhibit 2 to this Mortgage. Mortgagor shall pay for the title
insurance policy described in the preceding sentence.
ARTICLE II
Condemnation
II.1 Condemnation
(1) Should any part of or interest in the Mortgaged Property be
taken or damaged by reason of any public improvement, eminent domain,
condemnation proceeding, or in any similar manner (a "Condemnation"), or should
Mortgagor receive any notice or other information regarding such action,
Mortgagor shall give immediate notice of such action to Mortgagee.
(2) Subject to the rights of any superior mortgagee or trust deed
beneficiary as provided in Section 6.8 below, Mortgagee shall be entitled to all
compensation, awards, and other payments or relief ("Condemnation Proceeds") up
to the full amount of the Obligations, and shall be entitled, at its option, to
commence, appear in, and prosecute any Condemnation proceeding in its own or
Mortgagor3s name and make any compromise or settlement in connection with such
Condemnation. In the event the Mortgaged Property is taken in its entirety by
condemnation, all Obligations secured by this Mortgage, at Mortgagee3s election,
shall become immediately due and collectible.
(3) Mortgagee may, at its sole option, apply the Condemnation
Proceeds to the reduction of the Obligations in such order as Mortgagee may
determine, or apply all or any portion of the Condemnation Proceeds to the cost
of restoring and improving the remaining Mortgaged Property. In the event that
Mortgagee elects to apply the Condemnation Proceeds to restoration and
improvement, the proceeds shall be held by Mortgagee and shall be released only
upon such terms and conditions as Mortgagee shall require in its sole
discretion, including but not limited to prior approval of plans and release of
liens. No Condemnation Proceeds shall be released if Mortgagor is in default
under this Mortgage.
ARTICLE III
Assignment of Leases, Rents, Issues, and Profits
III.1 Assignment. Mortgagor assigns and transfers to Mortgagee (1)
all leases, subleases, licenses, rental contracts, and other agreements, whether
now existing or hereafter arising, and relating to the occupancy or use of all
or any portion of the Mortgaged Property, including all modifications,
extensions, and renewals thereof (the "Leases"), and (2) all rents, revenues,
issues, profits, income, proceeds, and benefits derived from the Mortgaged
Property and the lease, rental, or license of all or any portion thereof,
including but not limited to lease and security deposits (collectively, the
"Rents"). This assignment is intended by Mortgagor and Mortgagee to create a
present and unconditional assignment to Mortgagee, subject only to the license
set forth in Section 3.4 below.
III.2 Rights of Mortgagee. Subject to the provisions of Section 3.4
below giving Mortgagor a revocable, limited license, Mortgagee shall have the
right, power, and authority to:
(1) Notify any and all tenants, renters, licensees, and other
obligors under any of the Leases that the same have been assigned to Mortgagee
and that all Rents are to be paid directly to Mortgagee, whether or not
Mortgagee shall have foreclosed or commenced foreclosure proceedings against the
Mortgaged Property, and whether or not Mortgagee has taken possession of the
Mortgaged Property;
(2) Discount, settle, compromise, release, or extend the time for
payment of, any amounts owing under any of the Leases and any Rents, in whole or
in part, on terms acceptable to Mortgagee;
(3) Collect and enforce payment of Rents and all provisions of the
Leases, and to prosecute any action or proceeding, in the name of Mortgagor or
Mortgagee, with respect to any and all Leases and Rents; and
(4) Exercise any and all other rights and remedies of the lessor in
connection with any of the Leases and Rents.
III.3 Application of Receipts. Mortgagee shall have the right,
power, and authority to use and apply any Rents received under this Mortgage (1)
for the payment of any and all costs and expenses incurred in connection with
enforcing or defending the terms of this assignment or the rights of Mortgagee,
and in collecting any Rents; and (2) for the operation and maintenance of the
Mortgaged Property and the payment of all costs and expenses in connection
therewith, including but not limited to the payment of utilities, taxes,
assessments, governmental charges, and insurance. After the payment of all such
costs and expenses, and after Mortgagee shall have set up such reserves as it
shall deem necessary in its sole discretion for the proper management of the
Mortgaged Property, Mortgagee shall apply all remaining Rents collected and
received by it to the reduction of the Obligations in such order as Mortgagee
shall determine. The exercise or failure by Mortgagee to exercise any of the
rights or powers granted in this assignment shall not constitute a waiver of
default by Mortgagor under this Mortgage, the Note, or any of the other Loan
Documents.
III.4 License. Mortgagee hereby grants to Mortgagor a revocable
license to collect and receive the Rents. Such license may be revoked by
Mortgagee, without notice to Mortgagor, upon the occurrence of any event of
default under this Mortgage, including any default by Mortgagor of its covenants
in this Article III. Unless and until such license is revoked, Mortgagor agrees
to apply the proceeds of Rents to the payment of the Obligations and to the
payment of taxes, assessments, governmental charges, insurance premiums, and
other obligations in connection with the Mortgaged Property, and to the
maintenance of the Mortgaged Property, before using such proceeds for any other
purpose. Mortgagor agrees to (1) observe and perform every obligation of
Mortgagor under the Leases; (2) enforce or secure at its expense the performance
of every obligation to be performed by any lessee or other party under the
Leases; (3) promptly give notice to Mortgagee of any default by any such lessee
or other party under any of the Leases, and promptly provide Mortgagee a copy of
any notice of default given to any such lessee or other party; (4) not collect
any Rents more than 30 days in advance of the time when the same shall become
due, or anticipate any other payments under the Leases, except for bona fide
security deposits not in excess of an amount equal to two months3 rent; (5) not
further assign or hypothecate any of the Leases or Rents; (6) except with
Mortgagee3s prior written consent, not waive, release, or in any other manner
discharge any lessee or other party from any of its obligations under any of the
Leases; (7) except with Mortgagee3s prior written consent, not modify or amend
any of the Leases; (8) except with Mortgagee3s prior written consent, not
cancel, terminate, or accept surrender of any of the Leases unless Mortgagor
shall have entered into a Lease for the space to be vacated on terms at least as
favorable to Mortgagor, commencing within 30 days after such cancellation,
termination, or surrender; (9) obtain Mortgagee3s prior written approval as to
the form and content of all future leases and any modifications of any present
or future leases; (10) deliver copies of all present and future leases to
Mortgagee promptly; and (11) appear in and defend, at Mortgagor3s sole cost and
expense, any action or proceeding arising out of or in connection with the
Leases or the Rents.
III.5 Limitation of Mortgagee3s Obligations. Notwithstanding the
assignment provided for in this Article III, Mortgagee shall not be obligated to
perform or discharge, and Mortgagee does not undertake to perform or discharge,
any obligation or liability with respect to the Leases or the Rents. This
assignment shall not operate to place responsibility for the control, care,
maintenance, or repair of the Mortgaged Property upon Mortgagee, or to make
Mortgagee responsible for any condition of the Property. Mortgagee shall be
accountable to Mortgagor only for the sums actually collected and received by
Mortgagee pursuant to this assignment. Mortgagor shall hold Mortgagee fully
harmless from, indemnify Mortgagee for, and defend Mortgagee against any and all
claims, demands, liabilities, losses, damages, and expenses, including attorney
fees, arising out of any of the Leases, with respect to any of the Rents, or in
connection with any claim that may be asserted against Mortgagee on account of
this assignment or any obligation or undertaking alleged to arise therefrom.
III.6 Termination. The assignment provided for in this Article III
shall continue in full force and effect until all the Obligations have been
fully paid and satisfied. At such time, this assignment and the authority and
powers herein granted by Mortgagor to Mortgagee shall cease and terminate.
III.7 Attorney-in-Fact. Mortgagor irrevocably constitutes and
appoints Mortgagee, and each of its officers, as its true and lawfully
attorney-in-fact, with power of substitution, to undertake and execute any and
all of the rights, powers, and authorities described in this Article III with
the same force and effect as if undertaken or performed by Mortgagor, and
Mortgagor ratifies and confirms any and all such actions that may be taken or
omitted to be taken by Mortgagee, its employees, agents, and attorneys.
ARTICLE IV
Security Agreement and Fixture Filing
4.1 Security Agreement. To secure the Obligations, Mortgagor grants
to Mortgagee a security interest in the following: (1) the Mortgaged Property to
the extent the same is not encumbered by this Mortgage as a real estate lien;
(2) all personal property that is used or will be used in the construction of
any Improvements on the Mortgaged Property; (3) all personal property that is
now or will hereafter be placed on or in the Mortgaged Property or Improvements;
(4) all personal property that is derived from or used in connection with the
use, occupancy, or enjoyment of the Mortgaged Property; (5) all property defined
in the Uniform Commercial Code as adopted in the state of Oregon, as accounts,
equipment, fixtures, and general intangibles, to the extent the same are used
at, or arise in connection with the ownership, maintenance, or operation of, the
Mortgaged Property; (6) all causes of action, claims, security deposits, advance
rental payments, utility deposits, refunds of fees or deposits paid to any
governmental authority, refunds of taxes, and refunds of insurance premiums
relating to the Mortgaged Property; and (7) all present and future attachments,
accessions, amendments, replacements, additions, products, and proceeds of every
nature of the foregoing. This Mortgage shall constitute a security agreement and
"fixture filing" under the Uniform Commercial Code of the states of Oregon and
Florida. The mailing address of Mortgagor and the address of Mortgagee from
which information may be obtained are set forth in the introductory paragraph of
this Mortgage.
ARTICLE V
Events of Default; Remedies
V.1 Events of Default. Each of the following shall constitute an
event of default under this Mortgage and under each of the other Loan Documents:
(1) Nonpayment. Failure of Mortgagor (or Borrower, as
applicable) to pay any of the Obligations on or before the due date thereof.
(2) Breach of Other Covenants. Failure of Mortgagor or
Borrower to perform or abide by any other covenant included in the Loan
Documents.
(3) Misinformation. Falsity when made in any material respect of any
representation, warranty, or information furnished by Mortgagor, Borrower, or
their agents to Mortgagee in or in connection with any of the Obligations.
(4) Other Default. The occurrence of any other event of
default under the Note or any of the other Loan Documents.
(5) Other Indebtedness. Mortgagor3s default beyond the applicable
grace periods in the payment of any other indebtedness owed by Mortgagor to any
person, if such indebtedness is secured by all or any portion of the Mortgaged
Property.
(6) Bankruptcy. The occurrence of any of the following with respect
to Mortgagor, Borrower, any guarantor of the Obligations, or the then-owner of
the Mortgaged Property: (a) appointment of a receiver, liquidator, or trustee
for any such party or any of its properties; (b) adjudication as a bankrupt or
insolvent; (c) filing of any petition by or against any such party under any
state or federal bankruptcy, reorganization, moratorium or insolvency law; (d)
institution of any proceeding for dissolution or liquidation; (e) inability to
pay debts when due; (f) any general assignment for the benefit of creditors; or
(g) abandonment of the Mortgaged Property.
(7) Transfer; Due-on-Sale; Due-on-Encumbrance. Any sale, gift,
conveyance, contract for conveyance, transfer, assignment, encumbrance, pledge,
or grant of a security interest in all or any part of the Mortgaged Property, or
any interest therein, either voluntarily, involuntarily, or by the operation of
law (a "Transfer"), without Mortgagee3s prior written consent, shall constitute
an event of default. For the purpose of clarification, and without limiting the
generality of the foregoing, the occurrence at any time of any sale, conveyance,
assignment, or other transfer of, or the grant of a pledge of or security
interest in, any shares of the capital stock of Mortgagor shall be deemed to be
a Transfer in violation of this paragraph. The provisions of this subsection (7)
shall apply to each and every Transfer, regardless of whether or not Mortgagee
has consented or waived its rights in connection with any previous Transfer.
Mortgagee may attach such conditions to its consent under this subsection (7) as
Mortgagee may determine in its sole discretion, including without limitation an
increase in the interest rate or the payment of transfer or assumption fees, and
the payment of administrative and legal fees and costs incurred by Mortgagee.
(8) Certain Taxes. For purposes of this subsection (8), State
Tax shall mean:
(a) A specific tax on mortgages, secured indebtedness, or any part
of the Obligations secured by this Mortgage.
(b) A specific tax on the mortgagor of property subject to a
mortgage that the taxpayer is authorized or required to deduct from
payments on the mortgage.
(c) A tax on property chargeable against Mortgagee under a mortgage
or holder of the note secured by the mortgage.
(d) A specific tax (other than an income tax or a gross receipts
tax) on all or any portion of the Obligations or on payments of principal
and interest made by Mortgagor.
If any State Tax is enacted after the date of this Mortgage
applicable to this Mortgage, enactment of the State Tax shall constitute an
event of default, unless the following conditions are met:
(a) Mortgagor may lawfully pay the tax or charge imposed by the
State Tax without causing any resulting economic disadvantage or
increase of tax to Mortgagee, and
(b) Mortgagor pays or agrees in writing to pay the tax or charge
within 30 days after notice from Mortgagee that the State Tax has been
enacted.
V.2 Remedies in Case of Default. If an Event of Default shall occur,
Mortgagee may exercise any one or more of the following rights and remedies, in
addition to any other remedies that may be available by law, in equity, or
otherwise:
(1) Acceleration. Mortgagee may declare all or any portion of
the Obligations immediately due and payable in accordance with the provisions
of the Note.
(2) Receiver. Mortgagee may have a receiver appointed for the
Mortgaged Property. Mortgagee shall be entitled to the appointment of a receiver
as a matter of right whether or not the value of the Mortgaged Property exceeds
the amount of the indebtedness secured by this Mortgage. Employment by Mortgagee
shall not disqualify a person from serving as receiver. Mortgagor consents to
the appointment of a receiver at Mortgagee3s option and waives any and all
defenses to such an appointment.
(3) Possession. Mortgagee may, either through a receiver or as
lender-in-possession, enter and take possession of all or any part of the
Mortgaged Property and use, operate, manage, and control it as Mortgagee shall
deem appropriate in its sole discretion. Upon request after an Event of Default,
Mortgagor shall peacefully relinquish possession and control of the Mortgaged
Property to Mortgagee or any receiver appointed under this Mortgage.
(4) Rents. Mortgagee may revoke Mortgagor3s right to collect the
Rents, and may, either itself or through a receiver, collect the same. Mortgagee
shall not be deemed to be in possession of the Property solely by reason of
exercise of the rights contained in this subsection (4). If Rents are collected
by Mortgagee under this subsection (4), Mortgagor hereby irrevocably appoints
Mortgagee as Mortgagor3s attorney-in-fact, with power of substitution, to
endorse instruments received in payment thereof in the name of Mortgagor and to
negotiate such instruments and collect their proceeds. After payment of all
Obligations, any remaining amounts shall be paid to Mortgagor and this power
shall terminate.
(5) Foreclosure. Mortgagee may judicially foreclose this Mortgage
and obtain a judgment foreclosing Mortgagor3s interest in all or any part of the
Property and giving Mortgagee the right to collect any deficiency remaining due
after disposition of the Mortgaged Property.
(6) Fixtures and Personal Property. With respect to any Improvements
and other personal property subject to a security interest in favor of
Mortgagee, Mortgagee may exercise any and all of the rights and remedies of a
secured party under the Uniform Commercial Code.
(7) Abandonment. Mortgagee may abandon all or any portion of
the Mortgaged Property by written notice to Mortgagor.
V.3 Sale. In any sale under this Mortgage or pursuant to any
judgment, the Mortgaged Property, to the extent permitted by law, may be sold as
an entirety or in one or more parcels and in such order as Mortgagee may elect,
without regard to the right of Mortgagor, any person claiming under Mortgagor,
or any guarantor or surety to the marshalling of assets. The purchaser at any
such sale shall take title to the Mortgaged Property or the part thereof so
sold, free and clear of the estate of Mortgagor, the purchaser being hereby
discharged from all liability to see to the application of the purchase money.
Any person, including Mortgagee, its officers, agents, and employees, may
purchase at any such sale. Mortgagee and each of its officers are irrevocably
appointed Mortgagor3s attorney-in-fact, with power of substitution, to make all
appropriate transfers and deliveries of the Mortgaged Property or any portions
thereof so sold and, for that purpose, Mortgagee and its officers may execute
all appropriate instruments of transfer. Nevertheless, Mortgagor shall ratify
and confirm, or cause to be ratified and confirmed, any such sale or sales by
executing and delivering, or by causing to be executed and delivered, to
Mortgagee or to such purchaser or purchasers all such instruments as may be
advisable, in the judgment of Mortgagee, for such purpose.
V.4 Cumulative Remedies. All remedies under this Mortgage are
cumulative and not exclusive. Any election to pursue one remedy shall not
preclude the exercise of any other remedy. An election by Mortgagee to cure
under Section 1.15 of this Mortgage shall not constitute a waiver of the default
or of any of the remedies provided in this Mortgage. No delay or omission in
exercising any right or remedy shall impair the full exercise of that or any
other right or remedy or constitute a waiver of the default.
V.5 Receiver. Upon taking possession of all or any part of the
Mortgaged Property, Mortgagee or a receiver may:
(1) Management. Use, operate, manage, control, and conduct business
with the Mortgaged Property and make expenditures for such purposes and for such
maintenance and improvements as are deemed reasonably necessary.
(2) Rents and Revenues. Collect all rents, revenues, income, issues,
and profits from the Mortgaged Property and apply such sums to the reasonable
expenses of use, operation, management, maintenance, and improvements.
(3) Construction. At its option, complete any construction in
progress on the Property, and in that connection pay bills, borrow funds, employ
contractors, and make any changes in plans and specifications as it deems
appropriate.
(4) Additional Indebtedness. If the revenues produced by the
Mortgaged Property are insufficient to pay expenses, Mortgagee or the receiver
may borrow or advance such sums upon such terms as it deems reasonably necessary
for the purposes stated in this section. All advances shall bear interest,
unless otherwise provided, at the rate set forth in the Note, and repayment of
such sums shall be secured by this Mortgage.
V.6 Application of Proceeds. All proceeds realized from the exercise
of the rights and remedies under this Section 5 shall be applied as follows:
(1) Costs and Expenses. To pay all costs of exercising such rights
and remedies, including the costs of maintaining and preserving the Mortgaged
Property, the costs and expenses of any receiver or lender-in-possession, the
costs of any sale, and the costs and expenses provided for in Section 6.5 below.
(2) Indebtedness. To pay all Obligations, in such order as
Mortgagee shall determine in its sole discretion.
(3) Surplus. The surplus, if any, remaining after satisfaction of
all the Obligations shall be paid to the clerk of the court in the case of a
judicial foreclosure proceeding, otherwise to the person or persons legally
entitled to the surplus.
V.7 Deficiency. No sale or other disposition of all or any part of
the Mortgaged Property pursuant to this Section 5 shall be deemed to relieve
Mortgagor of any of the Obligations, except to the extent that the proceeds are
applied to the payment of such Obligations. If the proceeds of a sale, a
collection, or other realization of or upon the Mortgaged Property are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Obligations, Mortgagor shall remain liable for any deficiency to
the fullest extent permitted by law.
V.8 Waiver of Stay, Extension, Moratorium, and Valuation Laws. To
the fullest extent permitted by law, Mortgagor waives the benefit of any
existing or future stay, extension, or moratorium law that may affect observance
or performance of the provisions of this Mortgage and any existing or future law
providing for the valuation or appraisal of the Mortgaged Property prior to any
sale.
ARTICLE VI
General Provisions
VI.1 Time is of the Essence. Time is of the essence with respect to
all covenants and obligations of Mortgagor under this Mortgage.
VI.2 Notice. Except as otherwise provided in this Mortgage, all
notices pertaining to this Mortgage shall be in writing and may be delivered by
hand, or mailed by first class, registered, or certified mail, return-receipt
requested, postage prepaid, and addressed to the appropriate party at its
address set forth at the outset of this Mortgage. Any party may change its
address for such notices from time to time by notice to the other parties.
Notices given by mail in accordance with this paragraph shall be deemed to have
been given upon the date of mailing; notices given by hand shall be deemed to
have been given when actually received.
VI.3 Mortgage Binding on Successors and Assigns. This Mortgage shall
be binding upon and inure to the benefit of the successors and assigns of
Mortgagor and Mortgagee. If the Trust Estate or any portion thereof shall at any
time be vested in any person other than Mortgagor, Mortgagee shall have the
right to deal with such successor regarding this Mortgage, the Mortgaged
Property, and the Obligations in such manner as Mortgagee deems appropriate in
its sole discretion, without notice to or approval by Mortgagor and without
impairing Mortgagor3s liability for the Obligations.
VI.4 Indemnity. Mortgagor shall hold Mortgagee, and its directors,
officers, employees, agents, and attorneys, harmless from and indemnify them for
any and all claims, demands, damages, liabilities, and expenses, including but
not limited to attorney fees and court costs, arising out of or in connection
with Mortgagee3s interest under this Mortgage, except Mortgagor shall not be
liable for acts performed by Mortgagee in violation of applicable law.
VI.5 Expenses and Attorney Fees. If Mortgagee refers any of the
Obligations to an attorney for collection or seeks legal advice following a
default; if Mortgagee is the prevailing party in any litigation instituted in
connection with any of the Obligations; or if Mortgagee or any other person
initiates any judicial or nonjudicial action, suit, or proceeding in connection
with any of the Obligations or the Mortgaged Property (including but not limited
to proceedings under federal bankruptcy law, eminent domain, under probate
proceedings, or in connection with any state or federal tax lien), and an
attorney is employed by Mortgagee to (1) appear in any such action, suit, or
proceeding, or (2) reclaim, seek relief from a judicial or statutory stay,
sequester, protect, preserve, or enforce Mortgagee3s interests, then in any such
event Mortgagor shall pay reasonable attorney fees, costs, and expenses incurred
by Mortgagee or its attorney in connection with the above-mentioned events or
any appeals related to such events, including but not limited to costs incurred
in searching records, the cost of title reports, and the cost of surveyors3
reports. Such amounts shall be secured by this Mortgage and, if not paid upon
demand, shall bear interest at the rate specified in the Note.
VI.6 Applicable Law. The Mortgage and the validity, interpretation,
performance, and enforcement of the Mortgage shall be governed by the laws of
the state of Florida.
VI.7 Captions. The captions to the sections and paragraphs of this
Mortgage are included only for the convenience of the parties and shall not have
the effect of defining, diminishing, or enlarging the rights of the parties or
affecting the construction or interpretation of any portion of this Mortgage.
VI.8 Rights of Prior Mortgagee. In the event that all or any portion
of the Mortgaged Property is subject to a superior mortgage or trust deed
specifically permitted under Exhibit 2, the rights of Mortgagee with respect to
insurance and condemnation proceeds as provided in Sections 1.14 and 2.1, and
all other rights granted under this Mortgage that have also been granted to such
a superior mortgagee or trust deed beneficiary, shall be subject to the rights
of the superior mortgagee or trust deed beneficiary. Mortgagor hereby authorizes
all such superior mortgagees and beneficiaries, on satisfaction of the
indebtedness secured by their mortgage or trust deed to remit all remaining
insurance or Condemnation proceeds and all other sums held by them to Mortgagee
to be applied in accordance with this Mortgage.
VI.9 "Person" Defined. As used in this Mortgage, the word "person"
shall mean any natural person, partnership, trust, corporation, limited
liability company, or other legal entity of any nature.
VI.10 Severability. If any provision of this Mortgage shall be held
to be invalid, illegal, or unenforceable, such invalidity, illegality, or
unenforceability shall not affect any other provisions of this Mortgage, and
such other provisions shall be construed as if the invalid, illegal, or
unenforceable provision had never been contained in the Mortgage.
VI.11 Entire Agreement. This Mortgage contains the entire agreement
of the parties with respect to the Mortgaged Property. No prior agreement,
statement, or promise made by any party to this Mortgage that is not contained
herein shall be binding or valid.
VI.12 Commercial Property. Mortgagor covenants and warrants that the
Property and Improvements are used by Mortgagor exclusively for business and
commercial purposes. Mortgagor also covenants and warrants that the Property and
Improvements are not now, and at no time in the future will be, occupied as the
principal residence of Mortgagor, Mortgagor3s spouse, or Mortgagor3s minor or
dependent child.
VI.13 Standard for Discretion. In the event this Mortgage is silent
on the standard for any consent, approval, determination, or similar
discretionary action, the standard shall be sole and unfettered discretion as
opposed to any standard of good faith, fairness, or reasonableness.
<PAGE>
VI.14 Interpretation. In the event of any conflict between the terms
of this Mortgage and the terms of the Intercreditor Agreement of even date
herewith among Mortgagee, WFB, Mortgagor, Borrower, Williams, and others (the
"Intercreditor Agreement"), the terms of the Intercreditor Agreement shall
control.
VI.15 ORS 93.040 Warning. THIS INSTRUMENT WILL NOT ALLOW USE OF THE
PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS
AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON
ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR
COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES AND TO DETERMINE ANY LIMITS
ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage, Assignment
of Rents, Security Agreement, and Fixture Filing, effective as of the date first
set forth above.
SIGNED IN THE PRESENCE OF: APTEK WILLIAMS, INC., a Delaware
corporation
(Signature) By:
Thomas W. Itin
(Printed Name) President and Chief
Executive Officer
(Signature)
(Printed Name)
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of
July, 1997, by Thomas W. Itin, as President and Chief Executive Officer of APTEK
WILLIAMS, INC., a Delaware corporation, on behalf of the corporation, who is
personally known to me (or has produced a
(state) driver3s license
no. as identification).
My Commission Expires:
Notary Public (Signature)
(AFFIX NOTARY SEAL)
(Printed Name)
(Title or Rank)
(Serial Number, if any)
<PAGE>
T -25-
T#540373.4
This Instrument Prepared By and Return To:
Edgel C. Lester, Jr., Esquire
Carlton, Fields, Ward, Emmanuel,
Smith & Cutler, P.A.
Post Office Box 3239
Tampa, Florida 33601
THIS MORTGAGE SECURES THREE PROMISSORY NOTES IN THE AGGREGATE PRINCIPAL AMOUNT
OF $8,088,000.00 WHICH HAVE BEEN EXECUTED AND DELIVERED OUTSIDE THE STATE OF
FLORIDA. FLORIDA DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $15,505.00 AND FLORIDA
INTANGIBLE PERSONAL PROPERTY TAXES IN THE AMOUNT OF $1,227.43 ARE BEING PAID
UPON RECORDATION HEREOF. SUCH AMOUNTS ARE BASED UPON A TAX BASE IN THE AMOUNT OF
$4,430,000.00 FOR DOCUMENTARY STAMP TAXES AND $613,713.81 FOR INTANGIBLE
PERSONAL PROPERTY TAXES, WHICH TAX BASES WERE CALCULATED IN ACCORDANCE WITH
SCHEDULE B ANNEXED HERETO AND MADE A PART HEREOF.
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (this "Mortgage") is made and
delivered this ____ day of July, 1997, between APTEK WILLIAMS, INC., a Delaware
corporation, having a mailing address of and principal place of business at 700
N.W. 12th Avenue, Deerfield Beach, Florida 33442 ("Mortgagor") and WELLS FARGO
BANK, NATIONAL ASSOCIATION, having a mailing address of 245 S. Los Robles
Avenue, Suite 600, Pasadena, California 91101 ("Mortgagee").
W I T N E S S E T H:
WHEREAS, Mortgagor is indebted to Mortgagee in the principal sum of Eight
Million Eight-Eight Thousand and No/100 Dollars ($8,088,000.00) together with
interest thereon, as evidenced by that certain Term Loan I Promissory Note in
the principal amount of $4,430,000.00, that certain Term Loan II Promissory Note
in the principal amount of $1,000,000.00, and that certain Real Estate
Promissory Note in the principal amount of $2,658,000.00, each from the
borrowers named on Schedule A annexed hereto and made a part hereof
(collectively, "Borrowers"), dated on or about the date hereof, (such promissory
notes, together with any and all renewals, extensions and modifications thereof
being hereinafter collectively called the "Note"), which Note by reference is
made a part hereof to the same extent as though set out in full herein. Such
indebtedness is described in that certain Credit Agreement between Borrowers and
Mortgagee dated on or about the date hereof ("Credit Agreement").
NOW, THEREFORE, to secure the payment of the indebtedness evidenced by the
Note in accordance therewith and the performance and observance by Borrowers of
all other covenants and conditions in the Note, in this Mortgage and in all
other instruments securing the Note, and in all other instruments executed in
connection therewith, and in order to charge the properties, interests and
rights hereinafter described with such payment, performance and observance, and
for and in consideration of the sum of One and No/100 Dollar ($1.00) paid by
Mortgagee to Mortgagor this date, and for other valuable consideration, the
receipt of which is acknowledged, Mortgagor does hereby grant, bargain,
alienate, remise, release, convey, assign, transfer, mortgage, hypothecate,
pledge, deliver, set over, warrant and confirm unto Mortgagee, its successors
and assigns forever:
THE MORTGAGED PROPERTY
<PAGE>
(A) THE LAND: All the land located in the County of Broward, State of
Florida, described in Exhibit A attached hereto and incorporated herein and made
a part hereof ("Land"), together with all mineral, oil and gas rights
appurtenant to said Land, and all shrubbery, trees and crops now growing or
hereafter grown upon said Land.
(B) THE IMPROVEMENTS AND FIXTURES: (i) All the buildings, structures and
improvements of every nature whatsoever now or hereafter situated on said Land,
and (ii) all fixtures now or hereafter owned by Mortgagor and located in or on,
or attached to, and used or intended to be used in connection with or with the
operation of, said Land, buildings, structures or other improvements, or in
connection with any construction being conducted or which may be conducted
thereon, and owned by Mortgagor, and all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to any of the foregoing,
and all of the right, title and interest of Mortgagor in and to any said
fixtures, which, to the fullest extent permitted by law, shall be conclusively
deemed fixtures and a part of the real property encumbered hereby (hereinafter
called the "Improvements").
(C) EASEMENTS: All easements, rights-of-way, gores of land, streets, ways,
alleys, passages, sewer rights, water courses, water rights and powers, and all
appurtenances whatsoever, in any way belonging, relating or appertaining to any
of the mortgaged property described in Paragraphs (A) and (B) hereof, or which
hereafter shall in any way belong, relate or be appurtenant thereto, whether now
owned or hereafter acquired by the Mortgagor.
(D) TOGETHER WITH (i) all the estate, right, title and interest of the
Mortgagor of, in and to all judgments, insurance proceeds, awards of damages and
settlements hereafter made resulting from condemnation proceedings or the taking
of the mortgaged property described in Paragraphs (A), (B) and (C) hereof or any
part thereof under the power of eminent domain, or for any damage (whether
caused by such taking or otherwise) to the mortgaged property described in
Paragraphs (A), (B) and (C) hereof or any part thereof, or to any rights
appurtenant thereto, and all proceeds of any sales or other dispositions of the
mortgaged property described in Paragraphs (A), (B) and (C) hereof or any part
thereof; and Mortgagee is hereby authorized to collect and receive said awards
and proceeds and to give proper receipts and acquittances therefor, and (if it
so elects) to apply the same toward the payment of the indebtedness and other
sums secured hereby, notwithstanding the fact that the amount owing thereon may
not then be due and payable; and (ii) all contract rights (including, without
limitation, all rights of Mortgagor in and to any and all contracts relating to
management, maintenance and security of and for said Land and the Improvements),
general intangibles, actions and rights in action, including, without
limitation, all rights to insurance proceeds and unearned premiums arising from
or relating to the mortgaged property described in Paragraphs (A), (B) and (C)
above; and (iii) all proceeds, products, replacements, additions, substitutions,
renewals and accessions of and to the mortgaged property described in Paragraphs
(A), (B) and (C).
(E) TOGETHER WITH all rents, income, accounts receivable and other
benefits to which Mortgagor may now or hereafter be entitled from the mortgaged
property described in Paragraphs (A), (B) and (C) hereof to be applied against
the indebtedness and other sums secured hereby; provided, however, that
permission is hereby given to Mortgagor, so long as no Event of Default (as
defined in Section 2.1 hereof) has occurred hereunder, to collect and use said
rents, income, accounts receivable and other benefits as they become due and
payable, but not in advance thereof. Upon the occurrence of any such Event of
Default, the permission hereby given to Mortgagor to collect said rents, income,
accounts receivable and other benefits from the mortgaged property described in
Paragraphs (A), (B) and (C) hereof shall terminate and such permission shall not
be reinstated upon a cure of such Event of Default without Mortgagee's specific
written consent.
The foregoing provisions hereof shall constitute an absolute and
present assignment of the rents, income, accounts receivable and other benefits
from the mortgaged property described in Paragraphs (A), (B) and (C) above,
subject, however, to the conditional permission given to Mortgagor to collect
and use such rents, income, accounts receivable and other benefits as
hereinabove provided; and the existence or exercise of such right of Mortgagor
shall not operate to subordinate this assignment to any subsequent assignment,
in whole or in part, by Mortgagor, and any such subsequent assignment by
Mortgagor shall be subject to the rights of Mortgagee hereunder.
(F) TOGETHER WITH (i) all right, title and interest of Mortgagor in and to
any and all contracts for sale and purchase of all or any part of the property
described in Paragraphs (A), (B) and (C) hereof, and any down payments, earnest
money deposits or other sums paid or deposited in connection therewith; and (ii)
all right, title and interest of Mortgagor in and to any and all leases now or
hereafter on or affecting the mortgaged property described in Paragraphs (A),
(B) and (C) hereof, together with all security therefor and all monies payable
thereunder, including, without limitation, tenant security deposits, and all
books and records which contain information pertaining to payments made under
the leases and security therefor, subject, however, to the conditional
permission hereinabove given to Mortgagor to collect the rents, income and other
benefits arising under any such lease. Mortgagee shall have the right, at any
time and from time to time, to notify any lessee of the rights of Mortgagee as
provided by this Section.
(G) TOGETHER WITH (i) Mortgagor's rights further to encumber the mortgaged
property described in Paragraphs (A), (B) and (C) above for debt and (ii) all of
Mortgagor's rights to enter into any lease or lease agreement.
All of the mortgaged property described in Paragraphs (A), (B), (C), (D),
(E), (F) and (G) above, and each item of mortgaged property described therein,
is herein referred to as "THE MORTGAGED PROPERTY."
TO HAVE AND TO HOLD THE MORTGAGED PROPERTY and all parts thereof unto
Mortgagee, its successors and assigns, to its own proper use and benefit
forever, subject, however, to the terms and conditions herein:
PROVIDED, HOWEVER, that if Mortgagor shall promptly pay or cause to be
paid to Mortgagee the principal and interest payable under the Note, at the
times and in the manner stipulated therein, herein, and in all other instruments
securing the Note, all without any deduction or credit for taxes or other
similar charges paid by Mortgagor, and shall keep, perform and observe all the
covenants and promises in the Note, and any renewal, extension or modification
thereof, and in this Mortgage and in all other instruments securing the Note, to
be kept, performed or observed by Mortgagor, then this Mortgage, and all the
properties, interest and rights hereby granted, conveyed and assigned shall
cease and be void, but shall otherwise remain in full force and effect.
ARTICLE ONE
COVENANTS OF MORTGAGOR
Mortgagor covenants and agrees with Mortgagee as follows:
<PAGE>
Section 1.1 Performance of Note, Mortgage, Etc. Mortgagor shall, and shall
cause the other Borrowers to, perform, observe and comply with all provisions
hereof, of the Note and of every other instrument securing the Note, and will
promptly pay to Mortgagee the principal with interest thereon and all other sums
required to be paid by Mortgagor under the Note pursuant to the provisions of
this Mortgage and of every other instrument securing the Note when payment shall
become due.
Section 1.2 General Representations, Covenants and Warranties. Mortgagor
represents, covenants and warrants that as of the date hereof and at all times
thereafter during the term hereof: (a) subject only to the rights of others
provided in the instruments described in Exhibit B attached hereto and
incorporated herein and made a part hereof, Mortgagor is seized of an
indefeasible estate in fee simple in, and has good and absolute title to, THE
MORTGAGED PROPERTY, and has good right, full power and lawful authority to
mortgage and pledge the same as provided therein and Mortgagee may at all times
peaceably and quietly enter upon, hold, occupy and enjoy THE MORTGAGED PROPERTY
in accordance with the terms hereof; (b) THE MORTGAGED PROPERTY is free and
clear of all liens, security interests, charges and encumbrances whatsoever
except those described in Exhibit B; (c) Mortgagor will maintain and preserve
the lien of this Mortgage until the indebtedness and other sums secured hereby
have been paid in full; (d) Mortgagor is now able to meet its debts as they
mature, the fair market value of its assets exceeds its liabilities and no
bankruptcy or insolvency proceedings are pending or contemplated by or against
Mortgagor; (e) all reports, statements and other data furnished by Mortgagor to
Mortgagee in connection with the loan evidenced by the Note are true, correct
and complete in all material respects and do not omit to state any fact or
circumstance necessary to make the statements contained therein not misleading;
(f) this Mortgage and the Note and other instruments securing the Note or
otherwise executed in connection therewith are valid and binding obligations
enforceable in accordance with their respective terms and the execution and
delivery thereof do not contravene any contract or agreement to which Mortgagor
is a party or by which Mortgagor or any of its properties may be bound and do
not contravene any law, order, decree, rule or regulation to which Mortgagor is
subject; (g) there are no actions, suits, or proceedings pending, or to the
knowledge of Mortgagor threatened, against or affecting Mortgagor or THE
MORTGAGED PROPERTY; (h) all costs arising from construction of any improvements
and the purchase of all equipment located on THE MORTGAGED PROPERTY have been
paid; (i) THE MORTGAGED PROPERTY is improved with an office building and has
frontage on, and direct access for ingress and egress to, the street(s)
described therein; (j) electric, sewer, water facilities and any other necessary
utilities are, and at all times hereafter shall be, available in sufficient
capacity to service THE MORTGAGED PROPERTY satisfactorily, and any easements
necessary to the furnishing of such utility service by Mortgagor have been
obtained and duly recorded; and (k) Mortgagor is not in default under the terms
of any instrument evidencing or securing any indebtedness of Mortgagor, and
there has occurred no event which would, if uncured or uncorrected, constitute a
default under any such instrument with the giving of notice, passage of time, or
both.
Section 1.3 Compliance with Laws. Mortgagor covenants and warrants that
THE MORTGAGED PROPERTY presently complies with and will continue to comply with
all applicable restrictive covenants, applicable zoning and subdivision
ordinances and building codes, all applicable health and environmental laws and
regulations and all other applicable laws, rules and regulations. If Mortgagor
receives notice from any federal, state or other governmental body that it is
not in compliance with any such covenant, ordinance, code, law or regulation
Mortgagor will provide Mortgagee with a copy of such notice promptly.
Section 1.4 Taxes and other Charges.
1.4.1 Taxes and Assessments. Subject to the provisions of this
Section 1.4, Mortgagor shall pay promptly when due all taxes, assessments,
rates, dues, charges, fees, levies, fines, impositions, liabilities, obligations
and encumbrances of every kind whatsoever now or hereafter imposed, levied or
assessed upon or against THE MORTGAGED PROPERTY or any part thereof, or upon or
against this Mortgage or the indebtedness or other sums secured hereby, or upon
or against the interest of Mortgagee in THE MORTGAGED PROPERTY, as well as all
income taxes, assessments and other governmental charges levied and imposed by
the United States of America or any state, county, municipality or other taxing
authority upon or against Mortgagor or in respect of THE MORTGAGED PROPERTY or
any part thereof; provided, however, that Mortgagor may in good faith, by
appropriate proceeding provided same does not cause a default in any mortgage or
security agreement encumbering THE MORTGAGED PROPERTY or in any other
encumbrance upon THE MORTGAGED PROPERTY (including, without limitation, payment
of the asserted tax or assessment under protest if said payment must be made in
order to contest such tax or assessment), contest the validity, applicability or
amount of any asserted tax or assessment and pending such contest Mortgagor
shall not be deemed in default hereunder if on or before the due date of the
asserted tax or assessment Mortgagor establishes an escrow acceptable to
Mortgagee in an amount estimated by Mortgagee to be adequate to cover the
payment of such tax or assessment with interest, costs and penalties and a
reasonable additional sum to cover possible interest, costs and penalties; and,
if the amount of such escrow is insufficient to pay any amount adjudged by a
court of competent jurisdiction to be due, with all interest, costs and
penalties thereon, Mortgagor shall pay such deficiency no later than the date
such judgment becomes final.
1.4.2 Mechanic's and Other Liens. Mortgagor shall not permit or
suffer any mechanic's, laborer's, materialman's, statutory or other lien (other
than any lien for taxes not yet due) to be created upon THE MORTGAGED PROPERTY.
1.4.3 INTENTIONALLY DELETED
1.4.4 No Credit Against the Indebtedness Secured Hereby. Mortgagor
shall not claim, demand or be entitled to receive any credit, against the
principal or interest payable under the terms of the Note or on any other sums
secured by this Mortgage for so much of the taxes, assessments or similar
impositions assessed against THE MORTGAGED PROPERTY or any part thereof or that
are applicable to the indebtedness secured hereby or to Mortgagee's interest in
THE MORTGAGED PROPERTY. No deduction shall be claimed from the taxable value of
THE MORTGAGED PROPERTY or any part thereof by reason of the Note, this Mortgage
or any other instrument securing the Note.
1.4.5 Insurance.
(a) Mortgagor shall maintain for the benefit of Mortgagee, during
the life of this Mortgage, insurance policies, insuring THE MORTGAGED
PROPERTY against all insurable hazards, casualties and contingencies
(including, without limitation, loss of rentals or business interruption),
as Mortgagee may require (it being agreed that Mortgagee shall not require
any insurance not customarily required by other lenders in similar loan
transactions in Broward County, Florida), and shall pay promptly when due
any premiums on such insurance policies and on any renewals thereof.
Without limiting the generality of the foregoing, Mortgagor shall maintain
insurance policies as provided in the Credit Agreement, and the terms of
the Credit Agreement relating to insurance are incorporated herein by this
reference.
(b) Pursuant to its rights granted hereunder in all proceeds from
any insurance policies, Mortgagee is hereby authorized and empowered at
its option to adjust or compromise any loss under any insurance policies
on THE MORTGAGED PROPERTY and to collect and receive the proceeds from any
such policy or policies. Each insurance company is hereby authorized and
directed to make payment for all such losses directly to Mortgagee alone
and not to Mortgagor and Mortgagee jointly. After deducting from such
insurance proceeds any expenses incurred by Mortgagee in the collection or
handling of such funds, Mortgagee may apply the net proceeds, at its
option, either toward restoring THE MORTGAGED PROPERTY or as a credit on
any portion of the indebtedness and other sums secured hereby, whether
then matured or to mature in the future, or at the option of Mortgagee
such sums either wholly or in part may be paid over to Mortgagor to be
used to repair such improvements or to build new improvements in their
place or for any other purpose or object satisfactory to Mortgagee,
without affecting the lien of this Mortgage for the full amount secured
hereby before such payment took place. Although Mortgagee intends to use
its best efforts to collect such payments in a timely fashion, Mortgagee
shall not be responsible for any failure to collect any insurance proceeds
due under the terms of any policy regardless of the cause of such failure.
Section 1.5 Condemnation. Mortgagee shall be entitled to all compensation
awards, damages, claims, rights of action and proceeds of, or on account of, any
damage or taking through condemnation and is hereby authorized, at its option,
to commence, appear in and prosecute in its own or Mortgagor's name any action
or proceeding relating to any condemnation and to settle or compromise any claim
in connection therewith. All such compensation awards, damages, claims, rights
of action and proceeds, and any other payments or relief, and the right thereto,
are included in THE MORTGAGED PROPERTY and Mortgagee, after deducting therefrom
all its expenses including reasonable attorneys' fees, may release any monies so
received by it to Mortgagor without affecting the lien of this Mortgage or may
apply the same, in such manner as Mortgagee shall determine, to the reduction of
the sums secured hereby. Any balance of such monies then remaining shall be paid
to Mortgagor. Mortgagor agrees to execute such further assignments of any
compensation awards, damages, claims, rights of action and proceeds as Mortgagee
may require. Notwithstanding any such condemnation, Mortgagor shall continue to
pay interest, computed at the rate provided in the Note, on the entire unpaid
principal amount thereof. The provisions of this Section 1.5 with respect to
receipt and application of condemnation awards shall be subject to the terms of
any instrument referred to in Exhibit B securing any prior lien on THE MORTGAGED
PROPERTY.
Section 1.6 Care of Mortgaged Property.
(a) Mortgagor shall preserve and maintain THE MORTGAGED PROPERTY in
good condition and repair. Mortgagor shall not permit, commit or suffer
any waste, impairment or deterioration of THE MORTGAGED PROPERTY or of any
part thereof, and will not take any action which will increase the risk of
fire or other hazard to THE MORTGAGED PROPERTY or to any part thereof.
(b) Except as otherwise provided in this Mortgage, no part of THE
MORTGAGED PROPERTY shall be removed, demolished or altered, without the
prior written consent of Mortgagee. Mortgagor shall have the right,
without such consent, to remove and dispose of free from the lien of this
Mortgage any part of THE MORTGAGED PROPERTY as from time to time may
become worn out or obsolete, provided that either simultaneously with or
prior to such removal, any such mortgaged property shall be replaced with
other mortgaged property of equal utility and of a value at least equal to
that of the replaced equipment when first acquired and free from any
security interest of any other person and by such removal and replacement
Mortgagor shall be deemed to have subjected such replacement mortgaged
property to the lien of this Mortgage.
(c) Mortgagee may enter upon and inspect THE MORTGAGED PROPERTY at
any reasonable time during the life of this Mortgage.
(d) If any part of THE MORTGAGED PROPERTY shall be lost, damaged or
destroyed by fire or any other cause, Mortgagor will give immediate
written notice thereof to Mortgagee and shall promptly restore THE
MORTGAGED PROPERTY to the equivalent of its original condition regardless
of whether there shall be any insurance proceeds therefor. If a part of
THE MORTGAGED PROPERTY shall be lost, physically damaged or destroyed
through condemnation, Mortgagor will promptly notify Mortgagee and
restore, repair or alter the remaining mortgaged property in a manner
satisfactory to Mortgagee.
(e) No work required to be performed under this Section shall be
undertaken until plans and specifications therefor, prepared by an
architect or engineer reasonably satisfactory to Mortgagee, have been
submitted to and approved in writing by Mortgagee, which approval shall
not be unreasonably delayed or withheld.
Section 1.7 Further Assurances. At any time and from time to time, upon
Mortgagee's request, Mortgagor shall make, execute and deliver, or cause to be
made, executed and delivered, to Mortgagee and where appropriate shall cause to
be recorded or filed, and from time to time thereafter to be re-recorded and
refiled at such time and in such offices and places as shall be deemed desirable
by Mortgagee, any and all such further mortgages, instruments of further
assurance, certificates and other documents as Mortgagee may consider necessary
or desirable in order to effectuate, complete, or perfect, or to continue and
preserve the obligations of Mortgagor under the Note and this Mortgage, and the
lien of this Mortgage as a lien upon all of THE MORTGAGED PROPERTY, whether now
owned or hereafter acquired by Mortgagor, subject only to the prior liens
described in Exhibit B, and unto all and every person or persons deriving any
estate, right, title or interest under this Mortgage or the power of sale herein
contained. Upon any failure by Mortgagor to do so, Mortgagee may make, execute,
record, file, re-record or refile any and all such Mortgages, instruments,
certificates and documents for and in the name of Mortgagor, and Mortgagor
hereby irrevocably appoints Mortgagee the agent and attorney-in-fact of
Mortgagor to do so.
Section 1.8 Security Agreement and Financing Statements. Mortgagor (as
Debtor) hereby grants to Mortgagee (as Creditor and Secured Party) a security
interest in all fixtures constituting part of THE MORTGAGED PROPERTY, subject
only to any prior security interests described in Exhibit B. Mortgagor shall
execute any and all such documents, including, without limitation, Financing
Statements pursuant to the Uniform Commercial Code of the state in which THE
MORTGAGED PROPERTY is located, as Mortgagee may request, to preserve and
maintain the priority of the lien created hereby on property which may be deemed
fixtures, and shall pay to Mortgagee on demand any expenses incurred by
Mortgagee in connection with the preparation, execution and filing of any such
documents. Mortgagor hereby authorizes and empowers Mortgagee to execute and
file, on Mortgagor's behalf, all Financing Statements and refilings and
continuations thereof as Mortgagee deems necessary or advisable to create,
preserve and protect the lien created hereby. When and if Mortgagor and
Mortgagee shall respectively become the Debtor and Secured Party in any Uniform
Commercial Code Financing Statement affecting THE MORTGAGED PROPERTY, this
Mortgage shall be deemed a security agreement as defined in the Uniform
Commercial Code and the remedies for any violation of the covenants, terms and
conditions of the agreements herein contained shall be (i) as prescribed herein,
(ii) by general law, or (iii) as to such part of the security which is also
reflected in said Financing Statement by the specific statutory consequences now
or hereafter enacted and specified in the Uniform Commercial Code, all at
Mortgagee's sole election.
Section 1.9 Assignment of Rents. The assignment contained under the
section of this Mortgage entitled "THE MORTGAGED PROPERTY" in Paragraph (E)
under the Section herein entitled "THE MORTGAGED PROPERTY" shall be fully
operative without any further action on the part of either party and
specifically Mortgagee shall be entitled, at its option, upon the occurrence of
an Event of Default hereunder, to all rents, income and other benefits from THE
MORTGAGED PROPERTY whether or not Mortgagee takes possession thereof. Mortgagor
hereby further grants to Mortgagee the right, at Mortgagee's option, (a) to
enter upon and take possession of THE MORTGAGED PROPERTY for the purpose of
collecting the said rents, income and other benefits, (b) to dispossess by the
usual summary proceedings any tenant defaulting in the payment thereof to
Mortgagee, (c) to let THE MORTGAGED PROPERTY or any part thereof, and (d) to
apply said rents, income and other benefits, after payment of all necessary
charges and expenses, on account of the indebtedness and other sums secured
hereby. Such assignment and grant shall continue in effect until the
indebtedness and other sums secured hereby are paid, the execution of this
Mortgage constituting and evidencing the irrevocable consent of Mortgagor to the
entry upon and taking possession of THE MORTGAGED PROPERTY by Mortgagee pursuant
to such grant, whether or not foreclosure has been instituted. Neither the
exercise of any rights under this Section by Mortgagee nor the application of
any such rents, income or other benefits to the indebtedness and other sums
secured hereby, shall cure or waive any default or notice of default hereunder
or invalidate any act done pursuant hereto or to any such notice, but shall be
cumulative of all other rights and remedies.
Section 1.10 After Acquired Property. To the extent permitted by and
subject to applicable law, the lien of this Mortgage will automatically attach,
without further act, to all after acquired property located in or on, or
attached to, or used or intended to be used in connection with, or in the
operation of, THE MORTGAGED PROPERTY or any part thereof.
Section 1.11 Leases Affecting Mortgaged Property. Mortgagor represents
that any leases of THE MORTGAGED PROPERTY represented by Mortgagor as in effect
at any time, including, without limitation, any leases listed in any rent roll
delivered to Mortgagee, are, unless otherwise disclosed in writing to Mortgagee,
presently in effect and no default exists in such leases; and there exist no
leases of THE MORTGAGED PROPERTY other than leases disclosed in writing to
Mortgagee. As any lease of THE MORTGAGED PROPERTY shall expire or terminate or
as any new lease shall be made, Mortgagor shall so notify Mortgagee in order
that at all times Mortgagee shall have a current list of all leases affecting
THE MORTGAGED PROPERTY. The assignment contained in Paragraph (E) under the
Section herein entitled "THE MORTGAGED PROPERTY" shall not be deemed to impose
upon Mortgagee any of the obligations or duties of Mortgagor provided in any
lease (including, without limitation, any liability under the covenant of quiet
enjoyment contained in any lease in the event that any tenant shall have been
joined as a party defendant in any action to foreclose this Mortgage and shall
have been barred and foreclosed thereby of all right, title and interest and
equity of redemption in THE MORTGAGED PROPERTY or any part thereof), and
Mortgagor shall comply with and observe its obligations as landlord under all
leases affecting THE MORTGAGED PROPERTY or any part thereof. Mortgagor, if
required by Mortgagee, shall furnish promptly to Mortgagee original or certified
copies of all such leases now existing or hereafter created. Mortgagor shall
not, without the express prior written consent of Mortgagee, enter into any new
lease affecting THE MORTGAGED PROPERTY or any part thereof, or amend, modify,
extend, terminate or cancel, accept the surrender of, subordinate, accelerate
the payment of rent as to, or change the terms of any renewal option of any such
lease now existing or hereafter created, or permit or suffer an assignment or
sublease. Mortgagor shall not accept payment of rent more than one (1) month in
advance without the prior written consent of Mortgagee.
With respect to the assignment contained in Paragraph (E) of the Section
herein entitled "THE MORTGAGED PROPERTY", Mortgagor shall, from time to time
upon request of Mortgagee, specifically assign to Mortgagee as additional
security hereunder, by an instrument in writing in such form as may be approved
by Mortgagee, all right, title and interest of Mortgagor in and to any and all
leases now or hereafter on or affecting THE MORTGAGED PROPERTY, together with
all security therefor and all monies payable thereunder, subject to the
conditional permission hereinabove given to Mortgagor to collect the rentals
under any such lease. Mortgagor shall also execute and deliver to Mortgagee any
notification, Financing Statement or other document reasonably required by
Mortgagee to perfect the foregoing assignment as to any such lease. The
provisions of this Section 1.11 shall be subject to the provisions of Paragraph
(E) of the Section herein entitled "THE MORTGAGED PROPERTY".
Section 1.12 Expenses. Mortgagor will pay when due and payable all
appraisal fees, recording fees, taxes, brokerage fees and commissions, abstract
fees, title policy fees, escrow fees, reasonable attorneys' and paralegals' fees
(including, without limitation, reasonable attorneys' and paralegals' fees
incurred in any litigation and bankruptcy and administrative proceedings and any
appeals therefrom), fees of inspecting architect(s) and engineer(s) and all
other costs and expenses of every character which have been incurred or which
may hereafter be incurred by Mortgagee or any takeout mortgagee in connection
with the issuance of its commitment, the preparation and execution of loan
documents, the funding and administration of the loan and any other indebtedness
secured hereby, and the enforcement of the Note, this Mortgage, and any other
instrument, document or agreement executed in connection herewith or secured
hereby, and Mortgagor will, upon demand by Mortgagee, reimburse Mortgagee or any
takeout mortgagee for all such expenses which have been incurred or which shall
be incurred by it; and will indemnify and hold harmless Mortgagee from and
against, and reimburse it for, all claims, demands, liabilities, losses,
damages, judgments, penalties, costs and expenses, reasonable attorneys' and
paralegals' fees (including, without limitation, reasonable attorneys' and
paralegals' fees incurred in any litigation and bankruptcy and administrative
proceedings and any appeals therefrom), which may be imposed upon, asserted
against, or incurred or paid by it by reason of, on account of or in connection
with any bodily injury or death or property damage occurring in or upon or in
the vicinity of THE MORTGAGED PROPERTY through any cause whatsoever or asserted
against it on account of any act performed or omitted to be performed hereunder
or on account of any transaction arising out of or in any way connected with THE
MORTGAGED PROPERTY, or with this Mortgage or any of the indebtedness evidenced
by the Note.
Section 1.13 Mortgagee's Performance of Defaults. If Mortgagor defaults in
the payment of any tax, assessment, encumbrance or other imposition, in its
obligation to furnish insurance hereunder, or in the performance or observance
of any other covenant, condition or term in this Mortgage, the Note or in any
other instrument securing the Note, Mortgagee may, to preserve its interest in
THE MORTGAGED PROPERTY, perform or observe the same, and all payments made
(whether such payments are regular or accelerated payments) and costs and
expenses incurred or paid by Mortgagee in connection therewith shall become due
and payable immediately. The amounts so incurred or paid by Mortgagee, together
with interest thereon at the Default Rate (as defined in Section 5.9 hereof)
from the date incurred until paid by Mortgagor, shall be added to the
indebtedness and secured by the lien of this Mortgage. Mortgagee is hereby
empowered to enter and to authorize others to enter upon THE MORTGAGED PROPERTY
or any part thereof for the purpose of performing or observing any such
defaulted covenant, condition or term, without thereby becoming liable to
Mortgagor or any person in possession holding under Mortgagor.
Section 1.14 Books and Records. Mortgagor shall keep and maintain at all
times complete, true and accurate books of account and records reflecting the
results of the operation of THE MORTGAGED PROPERTY, and shall provide financial
and other information to Mortgagee as provided in the Credit Agreement.
Additionally, if Mortgagor leases any portion of THE MORTGAGED PROPERTY at any
time within any fiscal year, then within thirty (30) days after the end of such
fiscal year of Mortgagor, Mortgagor shall provide to Mortgagee a rent schedule
of THE MORTGAGED PROPERTY, as of the end of such fiscal year, certified by
Mortgagor, showing the name of each tenant and the space occupied, the lease
expiration date, the rent and additional rent due and payable, the last date to
which rent was paid and whether or not such tenant was then in default under any
of the terms of his lease and showing all tenant space which is not occupied.
Section 1.15 Estoppel Affidavits. Mortgagor, within ten (10) days after
receipt of a written request from Mortgagee, shall furnish (a) a written
statement, duly acknowledged, setting forth the unpaid principal of and interest
on the Note, and any other unpaid sums secured hereby, and whether or not any
offsets or defenses exist against such principal and interest or other sums, and
(b) a lease ratification and estoppel agreement as to any lease affecting THE
MORTGAGED PROPERTY, in form and substance reasonably satisfactory to Mortgagee,
which shall be executed by Mortgagor and by each lessee, stating, if such be the
case, that the lease is in full force and effect, that it has not been amended
or modified, and that there is no default thereunder, that the lessee has
accepted and is in possession and occupancy of the leased premises, paying the
full rental called for therein on a current basis, that no rental payments have
been made more than one month in advance, that there are no offsets, claims or
defenses to the payment of the rent or enforcement of the terms of the lease,
that all work required to be performed by the lessor under the lease has been
completed, and stating the date of commencement and termination of the original
lease term and the terms of any renewals or extensions of the lease term.
Section 1.16 Use of Mortgaged Property. Mortgagor covenants that THE
MORTGAGED PROPERTY will be used for the purposes set forth in Exhibit C, and
Mortgagor shall not suffer or permit THE MORTGAGED PROPERTY or any portion
thereof, to be used by the public, as such, without restriction or in such
manner as might reasonably tend to impair Mortgagor's title to THE MORTGAGED
PROPERTY or any portion thereof, or in such manner as might reasonably make
possible a claim or claims of adverse usage or adverse possession by the public,
as such, or of implied dedication of THE MORTGAGED PROPERTY or any portion
thereof. Mortgagor shall not use or permit the use of THE MORTGAGED PROPERTY or
any portion thereof for any purpose, other than the use permitted under Exhibit
C, which in the reasonable opinion of Mortgagee would adversely affect the then
value or character of THE MORTGAGED PROPERTY or any part thereof.
Section 1.17 Prior and Subordinate Liens. In the event that THE MORTGAGED
PROPERTY or any part thereof is now subject to a mortgage, lien or other
encumbrance described in Exhibit B or hereafter approved by Mortgagee in writing
which has priority over the lien of this Mortgage ("Approved Prior
Encumbrance"), or in the event that THE MORTGAGED PROPERTY or any part hereof
is, with the written consent of Mortgagee, now or hereafter subject to any
mortgage, lien or other encumbrance which is subordinate to the lien hereof
("Approved Subordinate Encumbrance"), Mortgagor shall (unless otherwise
specifically agreed to in writing by Mortgagee) (i) pay either directly to the
holder of the Approved Prior Encumbrance and Approved Subordinate Encumbrance
or, at the election of Mortgagee, to Mortgagee for remittance to the holder of
the Approved Prior Encumbrance and Approved Subordinate Encumbrance the
principal, interest and all other sums secured thereby no later than five (5)
days prior to their due date, and will comply with all of the other terms,
covenants and conditions thereof; (ii) if requested hereafter by Mortgagee,
produce to Mortgagee from time to time no less than three (3) days prior to the
due date of the installments of principal, interest and other sums payable
thereon, receipts or other evidence of payment thereof satisfactory to
Mortgagee, unless Mortgagee shall have required that such payments be made to
Mortgagee, in accordance with subsection (i) hereof; (iii) not enter into any
modification, amendment, agreement or arrangement with respect thereto and will
not obtain any additional advances thereunder, without the prior written consent
of Mortgagee, expressly including, but not in limitation of the foregoing, any
such modification, amendment, agreement or arrangement pursuant to which
Mortgagor is granted any forbearance or indulgence (as to time or amount) in the
payment of any principal, interest or other sums due in accordance with the
terms and provisions of the Approved Prior Encumbrance or Approved Subordinate
Encumbrance; (iv) use its best efforts to obtain the agreement of the holder
from time to time of any such Approved Prior Encumbrance or Approved Subordinate
Encumbrance to send Mortgagee copies of all notices; and (v) notify Mortgagee
promptly of any default under or the receipt of any notice given by the holder
of any Approved Prior Encumbrance or Approved Subordinate Encumbrance.
Section 1.18 Use of Mortgagee's Name. Mortgagor shall not use Mortgagee's
name or the name of any person, firm or corporation controlling, controlled by
or under common control with Mortgagee in connection with any of Mortgagor's
activities, except as such use may be required by applicable law or regulation
of any governmental body, or by any financing institution with which Mortgagor
may be doing business.
Section 1.19 Shareholder Consent. Mortgagor represents that (a) either (1)
the certificate of incorporation of Mortgagor does not require a vote or consent
of the shareholders to authorize the execution and delivery of this Mortgage, or
(2) if the certificate of incorporation of Mortgagor requires such vote or
consent, that the same has been had or given in full conformity with the
requirements thereof, and (b) the board of directors of Mortgagor has by proper
action, which has not been revoked or modified, duly authorized the execution
and delivery of this Mortgage by the officer or officers who have executed the
same.
ARTICLE TWO
DEFAULTS
<PAGE>
Section 2.1 Event of Default. The term Event of Default, wherever used in
this Mortgage, shall mean any one or more of the following events:
(a) The occurrence of an "Event of Default" as set forth in the
Credit Agreement.
(b) If all or any part of THE MORTGAGED PROPERTY shall be damaged or
taken through condemnation (which term when used herein shall include any
damage or taking by any governmental authority or any other authority
authorized by the laws of the state where said Land is located or the
United States of America to so damage or take, and any transfer by private
sale in lieu thereof), either temporarily for a period in excess of thirty
(30) days, or permanently.
(c) The entry by any court of last resort of a decision that an
undertaking by Mortgagor as herein provided to pay taxes, assessments,
levies, liabilities, obligations and encumbrances is legally inoperative
or cannot be enforced, or in the event of the passage of any law changing
in any way or respect the laws now in force for the taxation of mortgages
or debts secured thereby for any purpose, or the manner of collection of
any such taxes, so as to affect adversely this Mortgage or the
indebtedness or other sums secured hereby.
(d) Any filing for record of a notice by Mortgagor pursuant to
Florida Statutes Section 697.04 limiting the maximum principal amount that
may be secured by this Mortgage.
<PAGE>
ARTICLE THREE
REMEDIES
Section 3.1 Remedies in Credit Agreement. If an Event of Default shall
have occurred, Mortgagee, in addition to the remedies set forth herein, have all
the remedies set forth in the Credit Agreement, including without limitation,
the right to declare the outstanding principal amount of the Note and the
interest accrued thereon, and all other sums secured hereby, to be due and
payable immediately. Upon such declaration such principal and interest and other
sums shall immediately become and be due and payable without demand or notice.
<PAGE>
Section 3.2 Mortgagee's Power of Enforcement. If an Event of Default shall
have occurred, Mortgagee may, either with or without entry or taking possession
as hereinabove provided or otherwise, and without regard to whether or not the
indebtedness and other sums secured hereby shall be due and without prejudice to
the right of Mortgagee thereafter to bring an action of foreclosure or any other
action for any default existing at the time such earlier action was commenced,
proceed by any appropriate action or proceeding: (a) to enforce payment of the
Note or the performance of any term hereof or any other right; (b) to foreclose
this Mortgage and to sell, as an entirety or in separate lots or parcels, THE
MORTGAGED PROPERTY under the judgment or decree of a court or courts of
competent jurisdiction; and (c) to pursue any other remedy available to it.
Mortgagee shall take action either by such proceedings or by the exercise of its
powers with respect to entry or taking possession, or both, as Mortgagee may
determine.
Section 3.3 Mortgagee's Rights to Enter and Take Possession, Operate
and Apply Income.
(a) If an Event of Default shall have occurred, (i) Mortgagor upon
demand of Mortgagee, shall forthwith surrender to Mortgagee the actual
possession and if and to the extent permitted by law, Mortgagee itself, or
by such officers or agents as it may appoint, may enter and take
possession of all THE MORTGAGED PROPERTY and may exclude Mortgagor and its
agents and employees wholly therefrom and may have joint access with
Mortgagor to the books, papers and accounts of Mortgagor; and (ii)
Mortgagor will pay monthly in advance to Mortgagee, on Mortgagee's entry
into possession, or to any receiver appointed to collect the rents, income
and other benefits of THE MORTGAGED PROPERTY, the fair and reasonable
rental value for the use and occupation of such part of THE MORTGAGED
PROPERTY as may be in possession of Mortgagor, and upon default in any
such payment will vacate and surrender possession of such part of THE
MORTGAGED PROPERTY to Mortgagee or to such receiver and, in default
thereof, Mortgagor may be evicted by summary proceedings or otherwise.
(b) If Mortgagor shall for any reason fail to surrender or deliver
THE MORTGAGED PROPERTY or any part thereof after Mortgagee's demand,
Mortgagee may obtain a judgment or decree conferring on Mortgagee the
right to immediate possession or requiring Mortgagor to deliver immediate
possession of all or part of THE MORTGAGED PROPERTY to Mortgagee, to the
entry of which judgment or decree Mortgagor hereby specifically consents.
Mortgagor shall pay to Mortgagee, upon demand, all costs and expenses of
obtaining such judgment or decree and reasonable compensation to
Mortgagee, its attorneys and agents, and all such costs, expenses and
compensation shall, until paid, be secured by the lien of this Mortgage.
(c) Upon every such entering upon or taking of possession, Mortgagee
may hold, store, use, operate, manage and control THE MORTGAGED PROPERTY
and conduct the business thereof, and, from time to time:
(i) make all necessary and proper maintenance, repairs,
renewals, replacements, additions, betterments and improvements
thereto and thereon and purchase or otherwise acquire additional
fixtures, personal and other mortgaged property;
(ii) insure or keep THE MORTGAGED PROPERTY insured;
(iii) manage and operate THE MORTGAGED PROPERTY and exercise
all the rights and powers of Mortgagor in its name or otherwise with
respect to the same; and
(iv) enter into agreements with others to exercise the powers
herein granted Mortgagee, all as Mortgagee from time to time may
determine; and Mortgagee may collect and receive all the rents,
income and other benefits thereof, including those past due as well
as those accruing thereafter; and shall apply the monies so received
by Mortgagee in such priority as Mortgagee may determine to (1) the
payment of interest, principal, and other payments due and payable
on the Note, or pursuant to this Mortgage, (2) the deposits for
taxes and assessments and insurance premiums due, (3) the cost of
insurance, taxes, assessments and other proper charges upon THE
MORTGAGED PROPERTY or any part thereof, (4) any sums due and payable
on any Approved Prior Encumbrance; and (5) the reasonable
compensation, expenses and disbursements of the agents, attorneys
and other representatives of Mortgagee.
Mortgagee, at its election, and without notice to Mortgagor, may, to
preserve its interest in THE MORTGAGED PROPERTY, make any payments which
Mortgagor has failed to make under any Approved Prior Encumbrance, and any such
sums so paid shall be secured hereby and be immediately due and payable from
Mortgagor upon demand of Mortgagee with interest thereon at the Default Rate but
such payment by Mortgagee shall not release Mortgagor from Mortgagor's
obligations or constitute a waiver of Mortgagor's default hereunder.
Mortgagee shall surrender possession of THE MORTGAGED PROPERTY to
Mortgagor only when all that is due upon such interest and principal, including,
without limitation, the principal balance of the Note following acceleration
thereof, tax and insurance deposits, and all amounts under any of the terms of
this Mortgage, shall have been paid in full.
Section 3.4 Leases. Mortgagee is authorized to foreclose this Mortgage
subject to the rights of any tenants of THE MORTGAGED PROPERTY or may elect
which tenants Mortgagee desires to name as parties defendant in such foreclosure
and the failure to make any such tenants parties defendant to any such
foreclosure proceedings and to foreclose their rights will not be, nor be
asserted by Mortgagor to be, a defense to any proceedings instituted by
Mortgagee to collect the sums secured hereby or to collect any deficiency
remaining unpaid after the foreclosure sale of THE MORTGAGED PROPERTY.
Section 3.5 Purchase by Mortgagee. Upon any such foreclosure sale,
Mortgagee may bid for and purchase THE MORTGAGED PROPERTY and, upon compliance
with the terms of sale, may hold, retain and possess and dispose of such
property in its own absolute right without further accountability.
Section 3.6 Application of Indebtedness Toward Purchase Price. Upon any
such foreclosure sale, Mortgagee may, if permitted by law, and after allowing
for costs and expenses of the sale, compensation and other reasonably related
charges, in paying the purchase price, apply any portion of or all of the
indebtedness and other sums due to Mortgagee under the Note, this Mortgage or
any other instrument securing the Note, in lieu of cash, to the amount which
shall, upon distribution of the net proceeds of such sale, be payable thereon.
Section 3.7 Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. Mortgagor agrees to the full extent permitted by law that in
case of a default on its part hereunder, neither Mortgagor nor anyone claiming
through or under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, extension or redemption laws now or hereafter in
force, in order to prevent or hinder the enforcement or foreclosure of this
Mortgage or the absolute sale of THE MORTGAGED PROPERTY of the final and
absolute putting into possession thereof, immediately after such sale, of the
purchasers thereat, and Mortgagor, for itself and all who may at any time claim
through or under it, hereby waives, to the full extent that it may lawfully so
do, the benefit of all such laws, and any and all right to have the assets
comprising THE MORTGAGED PROPERTY marshalled upon any foreclosure of the lien
hereof and agrees that Mortgagee or any court having jurisdiction to foreclose
such lien may sell THE MORTGAGED PROPERTY in part or as an entirety.
Section 3.8 Receiver. If an Event of Default shall have occurred,
Mortgagee, to the extent permitted by law and without regard to the value,
adequacy or occupancy of the security for the indebtedness and other sums
secured hereby, shall be entitled as a matter of right if it so elects to the
appointment of a receiver to enter upon and take possession of THE MORTGAGED
PROPERTY and to collect all rents, income and other benefits thereof and apply
the same as the court may direct and any such receiver shall be entitled to
hold, store, use, operate, manage and control THE MORTGAGED PROPERTY and conduct
the business thereof as would Mortgagee pursuant to Section 3.3(c) above. The
expenses, including receiver's fees, attorneys' fees, costs and agent's
compensation, incurred pursuant to the powers herein contained shall be secured
by this Mortgage. The right to enter and take possession of and to manage and
operate THE MORTGAGED PROPERTY and to collect all rents, income and other
benefits thereof, whether by a receiver or otherwise, shall be cumulative to any
other right or remedy hereunder or afforded by law and may be exercised
concurrently therewith or independently thereof. Mortgagee shall be liable to
account only for such rents, income and other benefits actually received by
Mortgagee, whether received pursuant to this Section or Section 3.3.
Notwithstanding the appointment of any receiver or other custodian, Mortgagee
shall be entitled as pledgee to the possession and control of any cash,
deposits, or instruments at the time held by, or payable or deliverable under
the terms of this Mortgage to, Mortgagee.
Section 3.9 Suits to Protect the Mortgaged Property. Mortgagee shall have
the power and authority to institute and maintain any suits and proceedings as
Mortgagee may deem advisable (a) to prevent any impairment of THE MORTGAGED
PROPERTY by any acts which may be unlawful or any violation of this Mortgage,
(b) to preserve or protect its interest in THE MORTGAGED PROPERTY, and (c) to
restrain the enforcement of or compliance with any legislation or other
governmental enactment, rule or order that may be unconstitutional or otherwise
invalid, if the enforcement of or compliance with such enactment, rule or order
might impair the security hereunder or be prejudicial to Mortgagee's interest.
Section 3.10 Proofs of Claim. In the case of any receivership, insolvency,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings affecting Mortgagor or any guarantor, co-maker or endorser
of any of Mortgagor's obligations, its creditors or its property, Mortgagee, to
the extent permitted by law, shall be entitled to file such proofs of claim and
other documents as may be necessary or advisable in order to have its claims
allowed in such proceedings for the entire amount due and payable by Mortgagor
under the Note, this Mortgage and any other instrument securing the Note, at the
date of the institution of such proceedings, and for any additional amounts
which may become due and payable by Mortgagor after such date.
Section 3.11 Mortgagor to Pay the Note on Any Default in Payment;
Application of Monies by Mortgagee.
(a) If default shall be made in the payment of any amount due under
the Note, this Mortgage or any other instrument securing the Note, then,
upon Mortgagee's demand, Mortgagor will pay to Mortgagee the whole amount
due and payable under the Note and all other sums secured hereby; and if
Mortgagor shall fail to pay the same forthwith upon such demand, Mortgagee
shall be entitled, unless precluded under the Note from seeking a
deficiency judgment against Mortgagor, to sue for and to recover judgment
against Mortgagor for the whole amount so due and unpaid together with
costs and expenses, including, without limitation, the reasonable
compensation, expenses and disbursements of Mortgagee's agents, attorneys
and other representatives, either before, after or during the pendency of
any proceedings for the enforcement of this Mortgage; and the right of
Mortgagee to recover such judgment shall not be affected by any taking
possession or foreclosure sale hereunder, or by the exercise of any other
right, power or remedy for the enforcement of the terms of this Mortgage,
or the foreclosure of the lien hereof.
(b) In case of a foreclosure sale of all or any part of THE
MORTGAGED PROPERTY and of the application of the proceeds of sale to the
payment of the sums secured hereby, Mortgagee shall, unless precluded
under the Note from seeking a deficiency judgment against Mortgagor, be
entitled to enforce payment from Mortgagor of all amounts then remaining
due and unpaid and to recover judgment against Mortgagor for any portion
thereof remaining unpaid, with interest.
(c) Mortgagor hereby agrees, to the extent permitted by law, that no
recovery of any such judgment by Mortgagee and no attachment or levy of
any execution upon any of THE MORTGAGED PROPERTY or any other property
shall in any way affect the lien of this Mortgage upon THE MORTGAGED
PROPERTY or any part thereof or any lien, rights, powers or remedies of
Mortgagee hereunder, but such lien, rights, powers and remedies shall
continue unimpaired as before.
(d) Any monies collected or received by Mortgagee under this Section
3.11 shall be applied to the payment of reasonable compensation, expenses
and disbursements of the agents, attorneys and other representatives of
Mortgagee, and the balance remaining shall be applied to the payment of
amounts due and unpaid under the Note, this Mortgage and all other
instruments securing the Note.
(e) The provisions of this Section shall not be deemed to limit or
otherwise modify the provisions of any guaranty of the indebtedness
evidenced by the Note.
Section 3.12 Delay or Omission No Waiver. No delay or omission of
Mortgagee or of any holder of the Note to exercise any right, power or remedy
accruing upon any Event of Default shall exhaust or impair any such right, power
or remedy or shall be construed to waive any such Event of Default or to
constitute acquiescence therein. Every right, power and remedy given to
Mortgagee may be exercised from time to time and as often as may be deemed
expedient by Mortgagee.
Section 3.13 No Waiver of One Default to Affect Another. No waiver of any
Event of Default hereunder shall extend to or affect any subsequent or any other
Event of Default then existing, or impair any rights, powers or remedies
consequent thereon. If Mortgagee (a) grants forbearance or an extension of time
for the payment of any sums secured hereby; (b) takes other or additional
security for the payment thereof; (c) waives or does not exercise any right
granted in the Note, this Mortgage or any other instrument securing the Note;
(d) releases any part of THE MORTGAGED PROPERTY from the lien of this Mortgage
or any other instrument securing the Note; (e) consents to the filing of any
map, plat or replat of the Land; (f) consents to the granting of any easement on
the Land; or (g) makes or consents to any agreement changing the terms of this
Mortgage or subordinating the lien or any charge hereof, no such act or omission
shall release, discharge, modify, change or affect the original liability under
the Note, this Mortgage or otherwise of Mortgagor, or any subsequent purchaser
of THE MORTGAGED PROPERTY or any part thereof or any maker, co-signer, endorser,
surety or guarantor. No such act or omission shall preclude Mortgagee from
exercising any right, power or privilege herein granted or intended to be
granted in case of any Event of Default then existing or of any subsequent Event
of Default nor, except as otherwise expressly provided in an instrument or
instruments executed by Mortgagee, shall the lien of this Mortgage be altered
thereby, except to the extent of releases as described in subsection (d) above
of this Section 3.13. In the event of the sale or transfer by operation of law
or otherwise of all or any part of THE MORTGAGED PROPERTY, Mortgagee, without
notice to any person, firm or corporation, is hereby authorized and empowered to
deal with any such vendee or transferee with reference to THE MORTGAGED PROPERTY
or the indebtedness secured hereby, or with reference to any of the terms or
conditions hereof, as fully and to the same extent as it might deal with the
original parties hereto and without in any way releasing or discharging any of
the liabilities or undertakings hereunder.
Section 3.14 Discontinuance of Proceedings; Position of Parties Restored.
If Mortgagee shall have proceeded to enforce any right or remedy under this
Mortgage by foreclosure, entry or otherwise and such proceedings shall have been
discontinued or abandoned for any reason, or such proceedings shall have
resulted in a final determination adverse to Mortgagee, then and in every such
case Mortgagor and Mortgagee shall be restored to their former positions and
rights hereunder, and all rights, powers and remedies of Mortgagee shall
continue as if no such proceedings had occurred or had been taken.
Section 3.15 Remedies Cumulative. No right, power or remedy conferred upon
or reserved to Mortgagee by the Note, this Mortgage or any other instrument
securing the Note is exclusive of any other right, power or remedy, but each and
every such right, power and remedy shall be cumulative and concurrent and shall
be in addition to any other right, power and remedy given hereunder or under the
Note or any other instrument securing the Note, or now or hereafter existing at
law, in equity or by statute.
Section 3.16 Interest After Event of Default. If an Event of Default shall
have occurred, all sums outstanding and unpaid under the Note and this Mortgage
shall bear interest at the Default Rate set forth in Section 5.9 hereof.
Section 3.17 Compliance with Environmental Laws. Mortgagor specifically
represents and warrants that, to the best of Mortgagor's knowledge, THE
MORTGAGED PROPERTY and the use and operation thereof comply with all state and
federal environmental laws, rules and regulations, including, without
limitation, the Federal Resource Conservation and Recovery Act and the
Comprehensive Environmental Response Compensation and Liability Act of 1980 and
all amendments and supplements thereto and shall continue to comply therewith at
all times. Specifically, and without limiting the generality of the foregoing,
except as previously disclosed to Mortgagee in writing, to the best of
Mortgagor's knowledge there are not now and there (a) shall not in the future be
any toxic or hazardous wastes, waste products or substances, as defined in such
laws, rules and regulations, located or stored in, upon or at THE MORTGAGED
PROPERTY; (b) shall never be at any time any releases or discharges of toxic or
hazardous wastes, waste products or substances from THE MORTGAGED PROPERTY; and
(c) have never been any such releases or discharges from THE MORTGAGED PROPERTY.
Mortgagor hereby agrees to indemnify and hold Mortgagee and any wholly owned
subsidiary of Mortgagee harmless from any and all loss, liability, damage, cost
or expense (including, without limitation, attorneys' and paralegals' fees,
including, without limitation, such fees as may be incurred in litigation and
bankruptcy and administrative proceedings and appeals therefrom) incurred by or
imposed upon Mortgagee or any such subsidiary at any time or, occasioned by,
resulting from or consequent to any such toxic or hazardous wastes, waste
products or substances at THE MORTGAGED PROPERTY or releases or discharges
thereof from THE MORTGAGED PROPERTY or the manufacturing, maintaining, holding,
handling, transporting, spilling, leaking or dumping of toxic or hazardous
wastes, waste products or substances on THE MORTGAGED PROPERTY at any time. The
aforesaid indemnification and hold harmless agreement shall benefit Mortgagee
from the date hereof and shall continue notwithstanding payment, release or
discharge of this Mortgage or the indebtedness secured hereby, and, without
limiting the generality of the foregoing such obligations shall continue for the
benefit of Mortgagee and any wholly owned subsidiary of Mortgagee during and
following any possession of THE MORTGAGED PROPERTY thereby or any ownership of
THE MORTGAGED PROPERTY thereby, whether arising by foreclosure or deed in lieu
of foreclosure or otherwise, such indemnification and hold harmless agreement to
continue forever. In the event that this Mortgage and/or the Note or other
agreement evidencing the indebtedness secured hereby contains a provision
pursuant to which Mortgagor is relieved of personal liability for such
indebtedness, such release of personal liability shall not include a release
from Mortgagor's liabilities and obligations pursuant to this Section 3.17.
ARTICLE FOUR
TRANSFER OR FURTHER ENCUMBRANCE OF THE PROPERTY
<PAGE>
Section 4.1 Transfer or Further Encumbrance of THE MORTGAGED PROPERTY. In
the event of any sale, conveyance, transfer, lease, pledge, or further
encumbrance of THE MORTGAGED PROPERTY or any interest in or any part of THE
MORTGAGED PROPERTY, or of any interest in Mortgagor, or any further assignment
of rents from THE MORTGAGED PROPERTY, without the prior written consent of
Mortgagee, then, at Mortgagee's option, Mortgagee may declare the outstanding
principal amount of the Note and the interest accrued thereon, and all other
sums secured hereby, to be due and payable immediately, and upon such
declaration such principal and interest and other sum shall immediately become
and be due and payable without demand or notice. Mortgagee's consent shall be
within its sole discretion, and Mortgagee specifically reserves the right to
condition its consent upon (by way of illustration but not of limitation) its
approval of the financial or management ability of the purchaser, transferee,
lessee, pledgee or assignee, upon an agreement to escalate the interest rate of
the Note to Mortgagee's then current interest rate for similarly situated
properties, upon the assumption of the obligations and liabilities of the Note
and this Mortgage by the purchaser, transferee, lessee, pledgee or assignee,
upon the receipt of guarantys of the indebtedness satisfactory to Mortgagee or
upon payment to Mortgagee of a reasonable assumption fee. Any purchaser,
transferee, lessee, pledgee or assignee shall be deemed to have assumed and
agreed to pay the indebtedness evidenced by the Note or secured by this Mortgage
and to have assumed and agreed to be bound by the terms and conditions of this
Mortgage, including the terms of this Section, unless Mortgagee specifically
agrees in writing to the contrary. Mortgagor agrees that if the ownership of THE
MORTGAGED PROPERTY or any part thereof becomes vested in a person other than
Mortgagor, Mortgagee may, without notice to Mortgagor, deal in any way with such
successor or successors in interest with reference to this Mortgage and the Note
and all obligations hereby secured without in any way vitiating or discharging
Mortgagor's liability hereunder or under the Note and other obligations hereby
secured. No transfer or encumbrance of THE MORTGAGED PROPERTY or any interest
therein and no forbearance or assumption by any person with respect to this
Mortgage and no extension to any person of the time for payment of the Note and
other sums hereby secured given by Mortgagee shall operate to release,
discharge, modify, change or affect the liability of Mortgagor either in whole
or in part, unless Mortgagee specifically agrees in writing to the contrary.
ARTICLE FIVE
MISCELLANEOUS PROVISIONS
<PAGE>
Section 5.1 Successors and Assigns. The terms "Mortgagor" and "Mortgagee"
herein shall include the parties named above as Mortgagor and Mortgagee,
respectively, and their successors, assigns, grantees and heirs, and all
covenants and agreements contained in this Mortgage, by or on behalf of
Mortgagor or Mortgagee, shall bind and inure to the benefit of their respective
successors, assigns, grantees and heirs.
Section 5.2 Notices. All notices, requests and demands which any party is
required or may desire to give to any other party under any provision of this
Mortgage must be in writing delivered to each party at the following address:
MORTGAGOR: Aptek Williams, Inc.
c/o Williams Controls, Inc.
14100 SW 72nd Avenue
Portland, OR 97224
Attention: Thomas W. Itin, Chairman
Telecopy No.: (503) 684-8675
and (248) 851-9080
MORTGAGEE: Wells Fargo Bank, National Association
Commercial Finance Division
245 S. Los Robles Avenue, Suite 600
Pasadena, CA 91101
Attention: Angelo Samperisi
Telecopy No.: (626) 884-9063
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three days after deposit in the
U.S. mail, first class and postage prepaid; and (c) if sent by telecopy, upon
receipt and the sender will endeavor to send a hard copy of such telecopied
notice to the recipient by mail.
Section 5.3 Headings. The headings of the articles, sections, Sections and
subdivisions of this Mortgage are for convenience of reference only, are not to
be considered a part hereof, and shall not limit or expand or otherwise affect
any of the terms hereof.
Section 5.4 Invalid Provisions to Affect No Others. In the event that any
of the covenants, agreements, terms or provisions contained in the Note, or in
this Mortgage or in any other instrument securing the Note shall be invalid,
illegal or unenforceable in any respect, the validity of the remaining
covenants, agreements, terms or provisions contained herein or in the Note or in
any other instrument securing the Note shall be in no way affected, prejudiced
or disturbed thereby.
Section 5.5 Changes, Etc. Neither this Mortgage nor any term hereof may be
changed, waived, discharged or terminated orally, or by any action or inaction,
but only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. The
modification hereof or of the Note or any other instrument securing the Note or
the release of any part of THE MORTGAGED PROPERTY from the lien hereof shall not
impair the priority of the lien of this Mortgage.
Section 5.6 Governing Law. This Mortgage is made by Mortgagor and accepted
by Mortgagee in the State of Florida, under the laws of such state and shall be
construed, interpreted, enforced and governed by and in accordance with the laws
of such state.
Section 5.7 Required Notices. Mortgagor shall notify Mortgagee promptly of
the occurrence of any of the following: (i) receipt of notice from any
governmental authority relating to THE MORTGAGED PROPERTY; (ii) receipt of any
notice from any tenant leasing all or any portion of THE MORTGAGED PROPERTY;
(iii) any change in the occupancy of THE MORTGAGED PROPERTY; (iv) receipt of any
notice from the holder of any other lien or security interest in THE MORTGAGED
PROPERTY; or (v) commencement of any judicial or administrative proceedings by
or against or otherwise affecting Mortgagor, the Guarantor (if any), THE
MORTGAGED PROPERTY or any entity controlled by or under common control of
Mortgagor or the Guarantor, or any other action by any creditor thereof as a
result of any default under the terms of any loan.
Section 5.8 Management. Mortgagor covenants that at all times prior to the
payment in full of the indebtedness evidenced by the Note and other sums secured
hereby, THE MORTGAGED PROPERTY shall be managed by Mortgagor or by a management
company which shall have been approved in writing by Mortgagee and pursuant to a
management agreement which shall have been approved in writing by Mortgagee
prior to the execution thereof.
Section 5.9 Default Rate. The Default Rate of interest shall be the
highest rate of interest allowed by law or the rate of interest set forth in the
Credit Agreement as applicable during the continuation of an Event of Default,
whichever shall be the lower.
Section 5.10 Future Advances. This Mortgage is given to secure not only
existing indebtedness, but also such future advances, whether such advances are
obligatory or are to be made at the option of Mortgagee, or otherwise, as are
made within twenty years from the date hereof, to the same extent as if such
future advances were made on the date of the execution of this Mortgage. The
total amount of indebtedness that may be so secured may decrease or increase
from time to time, but the total unpaid balance so secured at one time shall not
exceed $20,000,000.00, plus interest thereon, and any disbursements made for the
payment of taxes, levies or insurance on THE MORTGAGED PROPERTY, plus interest
thereon.
Section 5.11 WAIVER OF JURY TRIAL. NO PARTY TO THIS MORTGAGE OR ANY
ASSIGNEE, SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF A PARTY SHALL SEEK A
JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION
PROCEDURE BASED UPON OR ARISING OUT OF THIS MORTGAGE, ANY RELATED AGREEMENT OR
INSTRUMENT, ANY OTHER COLLATERAL FOR THE INDEBTEDNESS SECURED HEREBY OR THE
DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG THE PARTIES, OR ANY OF THEM. NO
PARTY OR ANY ASSIGNEE, SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF A PARTY
SHALL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN
WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN
WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY THE
PARTIES HERETO, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY
HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS
OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage and Security
Agreement on the date first set forth above.
SIGNED IN THE PRESENCE OF: APTEK WILLIAMS, INC., a Delaware
corporation
(Signature)
By:
(Printed Name) Name:
Title:
(Signature) Post Office Address:
(Printed Name)
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this ____ day of
_____, 1997, by , as of
APTEK WILLIAMS, INC., a Delaware corporation, on behalf of the corporation,
who is personally known to me or has produced a (state)
driver's license no. as identification.
My Commission Expires:
Notary Public (Signature)
(AFFIX NOTARY SEAL)
(Printed Name)
(Title or Rank)
(Serial Number, if any)
<PAGE>
T#540373.4
shapeType1fFli
Schedule A-1
SCHEDULE A
BORROWERS
AGROTEC WILLIAMS, INC.
AJAY LEISURE PRODUCTS, INC.
AJAY SPORTS, INC.
APTEK WILLIAMS, INC.
GEOFOCUS, INC.
HARDEE WILLIAMS, INC.
KENCO/WILLIAMS, INC.
LEISURE LIFE, INC.
NESC WILLIAMS, INC.
PALM SPRINGS GOLF, INC.
PREMIER PLASTIC TECHNOLOGIES, INC.
TECHWOOD WILLIAMS, INC.
WACCAMAW WHEEL WILLIAMS, INC.
WILLIAMS AUTOMOTIVE, INC.
WILLIAMS CONTROLS, INC.
WILLIAMS CONTROLS INDUSTRIES, INC.
WILLIAMS TECHNOLOGIES, INC.
WILLIAMS WORLD TRADE, INC.
<PAGE>
Schedule B-3
SCHEDULE B
CALCULATION OF DOCUMENTARY STAMP AND NON-RECURRING
INTANGIBLE PERSONAL PROPERTY TAXES DUE IN CONNECTION WITH
MORTGAGE FROM APTEK WILLIAMS, INC., A DELAWARE CORPORATION,
FOR THE BENEFIT OF WELLS FARGO BANK, NATIONAL ASSOCIATION
Value of Real and Personal Property Securing $8,088,000 of Indebtedness:
Real Other
Estate Property*
Total
Florida Mortgaged Property $4,430,000.00 $ -0- $ 4,430,000.00
Collateral outside Florida $-0- $53,952,000.00 $53,952,000.00
Total Value $4,430,000.00 $53,952,000.00 $58,382,000.00
*Represents Florida personal property only to the extent encumbered by the
Florida Mortgage.
A. Calculation of Documentary Stamp Taxes:
1. Application of Formula from Reg. 12B-4.053(32)(c)
Fla. Admin. Code requires valuation as follows:
Value of Florida Mortgaged Property / Total Value = .075879551 or 7.5879551%
Taxable Base = 7.5879551% of $8,088,000 = 613,713.81
2. Reg. 12B-4.053(32)(c) Fla. Admin. Code requires use of the
greater of the formula-derived tax base and the actual value of
the collateral encumbered by the Florida mortgage(s) as the tax
base for calculation of the tax.
3. Calculation of Tax Liability:
(a) $4,430,000 / 100 = $44,300
(Rounded up to Nearest
Whole Number)
(b) $44,300 x .35 = $15,505
B. Calculation of Intangible Tax:
1. Section 199.133(2) Fla. Stat. (1993) requires valuation as
follows:
Value of Florida Mortgaged Real Estate / Value of all Collateral (including
Florida personal property) = .075879551 or 7.5879551%
Taxable Base = 7.5879551% of $8,088,000.00 = $613,713.81
2. Pursuant to Section 199.133(2), Fla. Stat., the taxable base cannot
exceed the value of the Florida real property.
3. Calculation of Tax Liability: $613,713.81
x .002
$1,227.43
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
<PAGE>
B-1
EXHIBIT B
LIENS, SECURITY INTERESTS, CHARGES AND ENCUMBRANCES
PATENT ASSIGNMENT AND SECURITY AGREEMENT
THIS PATENT ASSIGNMENT AND SECURITY AGREEMENT between WILLIAMS CONTROLS
INDUSTRIES, INC., a Delaware corporation ("Borrower"), and WELLS FARGO BANK,
NATIONAL ASSOCIATION ("Bank"), is as follows:
1. Preliminary Statements
(A) Borrower has executed and delivered this Agreement to Bank in order to
induce Bank (i) to enter into the Credit Agreement executed and delivered by
Borrower (together with other borrowers) contemporaneously herewith (said Credit
Agreement, as it may hereafter be amended or otherwise modified is hereinafter
referred to as the "Credit Agreement"), and (ii) to make advances pursuant to
the Credit Agreement.
(B) All capitalized terms used herein and not otherwise defined herein
shall have the meaning attributed to them in the Credit Agreement.
2. Assignment
Borrower hereby grants, assigns and conveys to Bank for its benefit
Borrower's entire right, title and interest in, to and under the Patent
Collateral. As used herein, "Patent Collateral" means: all of Borrower's right,
title and interest in and to all of its now owned or existing and filed and
hereafter acquired or arising and filed: Patent License Rights (as defined
below), patents, patent applications, and the inventions and improvements
described and claimed therein, including, without limitation, the patents and
patent applications listed on Schedule I attached hereto, and (i) the reissues,
divisions, continuations, renewals, extensions and continuations-in-part
thereof; (ii) all income, royalties, damages and payments now and hereafter due
and/or payable under with respect thereto, including, without limitation,
damages and payments for past or future infringements thereof; (iii) the right
to sue for past, present and future infringements thereof; and (iv) all rights
corresponding thereto throughout the world. "Patent License Rights" means
Borrower's entire right, title and interest in, to and under all license
agreements with any Person, whether Borrower is licensor or licensee, with
respect to any patents, patent applications and rights thereto, including,
without limitation, the licenses listed on Schedule I.
3. License
In consideration of Borrower's undertaking to fulfill the covenants of
this Agreement and to discharge the Obligations, Bank grants to Borrower a
personal, non-transferable exclusive license (without representation or warranty
of any kind), with the right to sublicense, under each patent application and
patent included in the Patent Collateral to make, to have made, to use and to
sell the subject matter claimed therein, and to exercise the Patent License
Rights (collectively, the "License"), provided, however, that every such
sublicense shall be necessary or desirable in the conduct of Borrower's
business. Upon the occurrence of an Event of Default and upon notice from Bank
to Borrower (i) the License shall terminate forthwith and (ii) all rights and
interests in, to and under the License shall revert to Bank. If such Event of
Default shall cease to exist, then, without any further action on the part of
Bank the License shall revest with Borrower.
4. Grant of Security
As security for the full and prompt performance of all of the Obligations,
Borrower hereby assigns, pledges and grants to Bank a lien on and security
interest in Borrower's entire right, title and interest in and to the Patent
Collateral and the License.
5. Representations and Warranties
Subject to any exceptions listed on Schedule I, Borrower represents and
warrants as follows:
(A) Borrower is the sole, legal and beneficial owner of the entire right,
title and interest in and to the Patent Collateral free and clear of any lien,
security interest, option, charge, pledge, license, assignment (whether
conditional or not) or covenant, or any other encumbrance.
(B) Schedule I sets forth a complete and accurate list of all patent
applications, patents and Patent License Rights owned by Borrower.
(C) Each patent and patent application identified in Schedule I is
subsisting and has not been adjudged invalid, unpatentable, or unenforceable, in
whole or in part, and is, to the best of Borrower's knowledge, valid, patentable
and enforceable.
(D) Borrower has not granted any license, release, covenant not to sue, or
non-assertion assurance to any third person with respect to any part of the
Patent Collateral.
(E) The current conduct of Borrower's business does not conflict with or
infringe any proprietary right of any third party in any way which materially
adversely affects the business, financial condition or business prospects of
Borrower or its affiliates, and no one has asserted to Borrower or any of its
affiliates that such conduct conflicts with or infringes any valid proprietary
right of any third party in any way which materially adversely affects the
business, financial condition or business prospects of the Borrower.
(F) The Patent License Rights are in full force and effect; Borrower is
not in default under any of the Patent License Rights; and no event has occurred
which with notice or the passage of time, or both, might constitute a default by
Borrower under any of the Patent License Rights.
(G) No authorization, consent, approval or other action by, and no notice
to or filing or recording with, any governmental, administrative or judicial
authority or regulatory body is currently or is reasonably expected to be
required for the making by Borrower of the assignments and the granting by
Borrower of the liens and security interests made and granted hereby or for the
execution, delivery or performance of this Agreement by Borrower, or for the
perfection of or the exercise by Bank of its rights and remedies hereunder.
6. Further Assurances
(A) Borrower agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that Bank may reasonably
request, in order (i) to continue, perfect and protect the assignment and the
security interest granted or purported to be granted hereby or (ii) to enable
Bank to exercise and enforce its rights and remedies hereunder with respect to
all or any part of the Patent Collateral and the License. Without limiting the
generality of the foregoing, Borrower will execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as Bank may reasonably request, in
order to perfect and preserve the security interests granted or purported to be
granted hereby.
(B) Borrower hereby authorizes Bank to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Patent Collateral and the License without the signature of Borrower where
permitted by law. A carbon, photographic or other reproduction of this Agreement
or any financing statement covering the Patent Collateral or any part thereof or
the License shall be sufficient as a financing statement where permitted by law.
(C) Borrower will furnish to Bank from time to time statements and
schedules further identifying and describing the Patent Collateral and the
License, including, without limitation, any sublicensing of Patent Collateral by
Borrower, and such other reports in connection with the Patent Collateral and
the License as Bank may reasonably request, all in reasonable detail.
(D) Borrower agrees that, should it obtain an ownership interest in any
patent, patent application or Patent License Rights which is not now identified
in Schedule I, (i) Borrower shall give prompt written notice thereof to Bank,
(ii) the provisions of Paragraph 2 shall automatically apply to such patent,
patent application or Patent License Rights, and (iii) such patent or patent
application shall automatically become part of the Patent Collateral. Borrower
authorizes Bank to modify this Agreement by amending Schedule I to include any
patents and patent applications which become part of the Patent Collateral under
this Paragraph.
(E) With respect to any patent or patent application necessary to the
conduct of Borrower's business, Borrower agrees to take all necessary steps in
any proceeding before the United States Patent and Trademark Office or any
similar office or agency in any other country or any political subdivision
thereof or in any court to maintain and pursue such patent application now or
hereafter included in the Patent Collateral and to maintain each patent now or
hereafter included in the Patent Collateral, including the filing of divisional,
continuation, continuation-in-part and substitute applications, the filing of
applications for reissue, renewal or extensions, the payment of maintenance
fees, and the participation in interference, reexamination, opposition and
infringement proceedings. Any expenses incurred in connection with such
activities shall be borne by Borrower. Without the prior written consent of
Bank, Borrower shall not abandon any right to file a patent application, or
abandon any pending patent application or patent.
(F) Borrower agrees to notify Bank immediately and in writing if Borrower
learns (i) that any of the Patent Collateral may become abandoned or dedicated;
(ii) of any adverse determination or any development (including, without
limitation, the institution of any proceeding in the United States Patent and
Trademark Office or any court) regarding any material item of the Patent
Collateral; or (iii) that it is or potentially could be in default of any of the
Patent License Rights.
(G) If Borrower becomes aware that any item of the Patent Collateral is
infringed or misappropriated by a third party, Borrower shall promptly notify
Bank and shall take such actions as are necessary under the circumstances to
protect such Patent Collateral. Any expense incurred in connection with such
activities shall be borne by Borrower.
(H) Borrower shall continue to mark its products with the numbers of
appropriate patents in accordance with the existing practices of the Borrower.
7. Transfers and Other Liens
Borrower shall not:
(A) sell, assign (by operation of law or otherwise) or otherwise
dispose of any of the Patent Collateral or the License, except (i) as
permitted by the Credit Agreement, or (ii) as permitted by Paragraph 3 of
this Agreement;
(B) create or suffer to exist any lien, security interest or other
charge or encumbrance upon or with respect to any of the Patent Collateral
or the License except as otherwise disclosed in Schedule I, or as
otherwise permitted by the Credit Agreement; or
(C) take any other action in connection with any of the Patent
Collateral or the License that would impair the value of the interests or
rights thereunder of Borrower.
8. Bank Appointed Attorney-in-Fact
Borrower hereby irrevocably appoints Bank as Borrower's attorney-in-fact,
with full authority in Borrower's place, stead and behalf of Borrower and in
Borrower's name or otherwise, from time to time in Bank's sole and absolute
discretion, to take any action and to execute any instrument that Bank may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation: (i) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Patent Collateral; (ii) to receive, endorse, and
collect any drafts or other instruments, documents and chattel paper, in
connection with clause (i) above; and (iii) to file any claims or take any
action or institute any proceedings that Bank may deem necessary or desirable
for the collection of any of the Patent Collateral or otherwise to enforce the
rights of Bank with respect to any of the Patent Collateral or the License.
9. Bank May Perform
(A) If Borrower fails to perform any of its obligations contained herein,
Bank may itself perform, or cause performance of, such obligation, and the
expenses of Bank incurred in connection therewith shall be payable by Borrower
under Paragraph 12(B).
(B) Bank, or its designated representatives, shall have the right, at all
times, to inspect Borrower's premises and to examine books, records and
operations relating to the Patent Collateral.
(C) Bank shall have the right, but in no way shall be obligated, to bring
suit in its own name or in the name of Borrower to enforce any part of the
Patent Collateral. Borrower shall at the reasonable request of Bank do any and
all lawful acts and execute any and all proper documents required by Bank in aid
of such enforcement. Upon demand, Borrower shall promptly reimburse and
indemnify Bank for all costs and expenses incurred by Bank in the exercise of
its rights under this Paragraph.
10. Bank's Duties
The powers conferred on Bank hereunder are solely to protect its interest
in the Patent Collateral and the License and shall not impose any duty upon Bank
to exercise any such powers. Except for the safe custody of any Patent
Collateral in its possession and the accounting for moneys actually received by
it hereunder, Bank shall have no duty as to any Patent Collateral, the License
or as to the taking of any necessary steps to preserve rights against other
parties or any other rights pertaining to any Patent Collateral or the License.
Bank shall be deemed to have exercised reasonable care in the custody and
preservation of the Patent Collateral and the License in its possession if such
Patent Collateral and the License are accorded treatment substantially equal to
that which Bank accords its own property.
11. Remedies
If any Event of Default shall have occurred and be continuing:
(A) Bank may exercise in respect of the Patent Collateral and the License,
in addition to other rights and remedies provided for herein or otherwise
available to Bank, all the rights and remedies of a secured party on default
under the Code (whether or not the Code applies to the affected Patent
Collateral) and also may (i) exercise any and all rights and remedies of
Borrower under or in connection with the License or otherwise in respect of the
Patent Collateral, (ii) require Borrower to, and Borrower hereby agrees that it
will at its expense and upon request of Bank forthwith, assemble all or any part
of the documents embodying the Patent Collateral as directed by Bank and make it
available to Bank at a place to be designated by Bank which is reasonably
convenient to both Bank and Borrower, (iii) occupy any premises owned or leased
by Borrower where documents embodying the Patent Collateral or any part thereof
and/or the License are assembled for a reasonable period in order to effectuate
Bank's rights and remedies hereunder or under law, without any obligation to
Borrower in respect of such occupation, (iv) license the Patent Collateral or
any part thereof, or assign its rights to the Patent License Rights to any
Person, and (v) without notice except as specified below, sell the Patent
Collateral or any part thereof and/or the License in one or more parcels at
public or private sale, at any of Bank's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as Bank may deem
commercially reasonable. Any notice required to be given by Bank with respect to
any of the Patent Collateral which notice is given pursuant to the Credit
Agreement and deemed received pursuant to the Credit Agreement at least five
days before a sale, lease, disposition or other intended action by Bank with
respect to any of the Patent Collateral shall constitute fair and reasonable
notice to Borrower of any such action. Bank shall not be obligated to make any
sale of Patent Collateral or the License regardless of notice of sale having
been given. Bank 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.
(B) All payments received by Borrower under or in connection with any of
the Patent Collateral or the License shall be received in trust for the benefit
of Bank, shall be segregated from other funds of Borrower and shall be forthwith
paid over to Bank in the same form as so received (with any necessary
endorsement).
(C) All payments made under or in connection with or otherwise in respect
of the Patent Collateral or the License, and all cash proceeds received by Bank
in respect of any sale of, collection from, or other realization upon all or any
part of the Patent Collateral or the License may, in the discretion of Bank be
held by Bank as collateral for, and/or then or at any time thereafter applied
(after payment of any amounts payable to Bank pursuant to Paragraph 12) in whole
or in part by Bank against, all or any part of the Obligations, in such order as
Bank shall elect. Any surplus of such cash or cash proceeds held by Bank and
remaining after payment in full of all the Obligations shall be paid over by
Borrower or to whomsoever may be lawfully entitled to receive such surplus.
12. Indemnity and Expenses
(A) Borrower agrees to indemnify and hold Bank harmless from and against
any and all claims, losses and liabilities arising out of or resulting from this
Agreement or the transactions contemplated hereby (including, without
limitation, enforcement of this Agreement), except claims, losses or liabilities
resulting from Bank's bad faith or willful misconduct as determined by a final
judgment of a court of competent jurisdiction.
(B) Borrower, upon demand, will pay to Bank the amount of any and all
reasonable expenses, including, without limitation, the reasonable fees and
disbursements of its counsel (whether incurred at the trial or appellate level,
in an arbitration proceeding, in a bankruptcy, including, without limitation any
adversary proceeding, contested matter or motion or otherwise) and of any
experts and agents, which Bank may incur in connection with any and all of the
following: (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 Patent Collateral and the License, (iii) the
exercise or enforcement of any of Bank's rights hereunder, or (iv) the failure
by Borrower to perform or observe any of the provisions hereof.
13. Amendments, Waivers, Consents
No amendment or waiver of any provision of this Agreement nor consent to
any departure by Borrower herefrom shall in any event be effective unless such
amendment or waiver shall be in writing and signed by Bank, and then such
amendment or waiver shall be effective only in the specific instance and for the
specific purpose for which it was given.
14. Notices
All notices, requests and demands which any party is required or may
desire to give to any other party under any provision of this Agreement must be
in writing delivered to each party at the following address:
BORROWER: Williams Controls Industries, Inc.
c/o Williams Controls, Inc.
14100 SW 72nd Avenue
Portland, OR 97224
Attn: Thomas W. Itin, Chairman
Telecopy No.: (248) 851-9080
BANK: Wells Fargo Bank, National Association
Commercial Finance Division
245 S. Los Robles Ave., Ste. 600
Pasadena, CA 91101
Attn: Angelo Samperisi
Telecopy No.: (818) 884-9063
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three days after deposit in the
U.S. mail, first class and postage prepaid; and (c) if sent by telecopy, upon
receipt and the sender will endeavor to send a hard copy of such telecopied
notice to the recipient by mail.
15. Miscellaneous
(A) This Agreement shall create continuing ownership rights in the Patent
Collateral and a continuing security interest in the License and shall (i)
remain in full force and effect until payment in full of the Obligations, (ii)
be binding upon the Borrower, its successors and assigns, and (iii) inure,
together with the rights and remedies of Bank hereunder, to the benefit of Bank,
its successors and assigns.
(B) Upon the payment in full of the Obligations, the assignment made, and
the liens and security interests granted hereby shall terminate and all rights
to the Patent Collateral and the License shall revert to Borrower. Upon any such
termination, Bank will, at Borrower's expense, execute and deliver to Borrower
such documents as Borrower shall reasonably request to evidence such
termination.
(C) If any term or provision of this Agreement is or shall become illegal,
invalid or unenforceable in any jurisdiction, all other terms and provisions of
this Agreement shall remain legal, valid and enforceable in such jurisdiction
and such illegal, invalid or unenforceable provision shall be legal, valid and
enforceable in any other jurisdiction.
(D) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LOCAL LAW OF THE STATE OF
OREGON, EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT OTHERWISE
REFER CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT TO THE SUBSTANTIVE LAW OF
ANOTHER JURISDICTION, AND ALL OTHER LAWS OF MANDATORY APPLICATION.
(E) AS A SPECIFICALLY BARGAINED INDUCEMENT FOR BANK TO ENTER INTO THIS
AGREEMENT AND EXTEND CREDIT TO BORROWER, BORROWER AND BANK EACH WAIVES TRIAL BY
JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING IN RESPECT OF OR
ARISING OUT OF THIS AGREEMENT.
(F) The captions in this Agreement are for reference purposes only and
shall not relate to or affect in any way the construction or interpretation
hereof.
(G) The representations, warranties, covenants and agreements contained
herein or in any Schedule attached hereto shall survive the execution hereof.
<PAGE>
IN WITNESS WHEREOF, Borrower has caused this Agreement to be duly executed
and delivered by its officer thereunto duly authorized as of July 11, 1997.
WILLIAMS CONTROLS INDUSTRIES, INC.
By:____________________________
Title:___________________________
STATE OF OREGON )
) SS:
COUNTY OF MULTNOMAH )
The foregoing Patent Assignment and Security Agreement was executed and
acknowledged before me on July 11, 1997, by ___________________, personally
known to me to be the ___________________ of Williams Controls Industries, Inc.,
a Delaware corporation, on behalf of such corporation.
Notary Public
My Commission Expires:
Accepted as of July 11, 1997.
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
Vice President
<PAGE>
SCHEDULE I
TO
PATENT ASSIGNMENT AND SECURITY AGREEMENT
1. Patents
No. 4,958,607
No. 1,313,106
No. 5,133,225
No. 5,237,891
No, 4,926,905
No. 4,976,166
No. 5,133,321
No. 5,321,980
No. 5,241,936
No. 5,438,516
No. 5,427,466
No. 5,396,870
2. Patent Applications
Serial No. 08/628,003
<PAGE>
PATENT ASSIGNMENT AND SECURITY AGREEMENT
THIS PATENT ASSIGNMENT AND SECURITY AGREEMENT between KENCO/WILLIAMS,
INC., a Delaware corporation ("Borrower"), and WELLS FARGO BANK, NATIONAL
ASSOCIATION ("Bank"), is as follows:
1. Preliminary Statements
(A) Borrower has executed and delivered this Agreement to Bank in order to
induce Bank (i) to enter into the Credit Agreement executed and delivered by
Borrower (together with other borrowers) contemporaneously herewith (said Credit
Agreement, as it may hereafter be amended or otherwise modified is hereinafter
referred to as the "Credit Agreement"), and (ii) to make advances pursuant to
the Credit Agreement.
(B) All capitalized terms used herein and not otherwise defined herein
shall have the meaning attributed to them in the Credit Agreement.
2. Assignment
Borrower hereby grants, assigns and conveys to Bank for its benefit
Borrower's entire right, title and interest in, to and under the Patent
Collateral. As used herein, "Patent Collateral" means: all of Borrower's right,
title and interest in and to all of its now owned or existing and filed and
hereafter acquired or arising and filed: Patent License Rights (as defined
below), patents, patent applications, and the inventions and improvements
described and claimed therein, including, without limitation, the patents and
patent applications listed on Schedule I attached hereto, and (i) the reissues,
divisions, continuations, renewals, extensions and continuations-in-part
thereof; (ii) all income, royalties, damages and payments now and hereafter due
and/or payable under with respect thereto, including, without limitation,
damages and payments for past or future infringements thereof; (iii) the right
to sue for past, present and future infringements thereof; and (iv) all rights
corresponding thereto throughout the world. "Patent License Rights" means
Borrower's entire right, title and interest in, to and under all license
agreements with any Person, whether Borrower is licensor or licensee, with
respect to any patents, patent applications and rights thereto, including,
without limitation, the licenses listed on Schedule I.
3. License
In consideration of Borrower's undertaking to fulfill the covenants of
this Agreement and to discharge the Obligations, Bank grants to Borrower a
personal, non-transferable exclusive license (without representation or warranty
of any kind), with the right to sublicense, under each patent application and
patent included in the Patent Collateral to make, to have made, to use and to
sell the subject matter claimed therein, and to exercise the Patent License
Rights (collectively, the "License"), provided, however, that every such
sublicense shall be necessary or desirable in the conduct of Borrower's
business. Upon the occurrence of an Event of Default and upon notice from Bank
to Borrower (i) the License shall terminate forthwith and (ii) all rights and
interests in, to and under the License shall revert to Bank. If such Event of
Default shall cease to exist, then, without any further action on the part of
Bank the License shall revest with Borrower.
4. Grant of Security
As security for the full and prompt performance of all of the Obligations,
Borrower hereby assigns, pledges and grants to Bank a lien on and security
interest in Borrower's entire right, title and interest in and to the Patent
Collateral and the License.
5. Representations and Warranties
Subject to any exceptions listed on Schedule I, Borrower represents and
warrants as follows:
(A) Borrower is the sole, legal and beneficial owner of the entire right,
title and interest in and to the Patent Collateral free and clear of any lien,
security interest, option, charge, pledge, license, assignment (whether
conditional or not) or covenant, or any other encumbrance.
(B) Schedule I sets forth a complete and accurate list of all patent
applications, patents and Patent License Rights owned by Borrower.
(C) Each patent and patent application identified in Schedule I is
subsisting and has not been adjudged invalid, unpatentable, or unenforceable, in
whole or in part, and is, to the best of Borrower's knowledge, valid, patentable
and enforceable.
(D) Borrower has not granted any license, release, covenant not to sue, or
non-assertion assurance to any third person with respect to any part of the
Patent Collateral.
(E) The current conduct of Borrower's business does not conflict with or
infringe any proprietary right of any third party in any way which materially
adversely affects the business, financial condition or business prospects of
Borrower or its affiliates, and no one has asserted to Borrower or any of its
affiliates that such conduct conflicts with or infringes any valid proprietary
right of any third party in any way which materially adversely affects the
business, financial condition or business prospects of the Borrower.
(F) The Patent License Rights are in full force and effect; Borrower is
not in default under any of the Patent License Rights; and no event has occurred
which with notice or the passage of time, or both, might constitute a default by
Borrower under any of the Patent License Rights.
(G) No authorization, consent, approval or other action by, and no notice
to or filing or recording with, any governmental, administrative or judicial
authority or regulatory body is currently or is reasonably expected to be
required for the making by Borrower of the assignments and the granting by
Borrower of the liens and security interests made and granted hereby or for the
execution, delivery or performance of this Agreement by Borrower, or for the
perfection of or the exercise by Bank of its rights and remedies hereunder.
6. Further Assurances
(A) Borrower agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that Bank may reasonably
request, in order (i) to continue, perfect and protect the assignment and the
security interest granted or purported to be granted hereby or (ii) to enable
Bank to exercise and enforce its rights and remedies hereunder with respect to
all or any part of the Patent Collateral and the License. Without limiting the
generality of the foregoing, Borrower will execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as Bank may reasonably request, in
order to perfect and preserve the security interests granted or purported to be
granted hereby.
(B) Borrower hereby authorizes Bank to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Patent Collateral and the License without the signature of Borrower where
permitted by law. A carbon, photographic or other reproduction of this Agreement
or any financing statement covering the Patent Collateral or any part thereof or
the License shall be sufficient as a financing statement where permitted by law.
(C) Borrower will furnish to Bank from time to time statements and
schedules further identifying and describing the Patent Collateral and the
License, including, without limitation, any sublicensing of Patent Collateral by
Borrower, and such other reports in connection with the Patent Collateral and
the License as Bank may reasonably request, all in reasonable detail.
(D) Borrower agrees that, should it obtain an ownership interest in any
patent, patent application or Patent License Rights which is not now identified
in Schedule I, (i) Borrower shall give prompt written notice thereof to Bank,
(ii) the provisions of Paragraph 2 shall automatically apply to such patent,
patent application or Patent License Rights, and (iii) such patent or patent
application shall automatically become part of the Patent Collateral. Borrower
authorizes Bank to modify this Agreement by amending Schedule I to include any
patents and patent applications which become part of the Patent Collateral under
this Paragraph.
(E) With respect to any patent or patent application necessary to the
conduct of Borrower's business, Borrower agrees to take all necessary steps in
any proceeding before the United States Patent and Trademark Office or any
similar office or agency in any other country or any political subdivision
thereof or in any court to maintain and pursue such patent application now or
hereafter included in the Patent Collateral and to maintain each patent now or
hereafter included in the Patent Collateral, including the filing of divisional,
continuation, continuation-in-part and substitute applications, the filing of
applications for reissue, renewal or extensions, the payment of maintenance
fees, and the participation in interference, reexamination, opposition and
infringement proceedings. Any expenses incurred in connection with such
activities shall be borne by Borrower. Without the prior written consent of
Bank, Borrower shall not abandon any right to file a patent application, or
abandon any pending patent application or patent.
(F) Borrower agrees to notify Bank immediately and in writing if Borrower
learns (i) that any of the Patent Collateral may become abandoned or dedicated;
(ii) of any adverse determination or any development (including, without
limitation, the institution of any proceeding in the United States Patent and
Trademark Office or any court) regarding any material item of the Patent
Collateral; or (iii) that it is or potentially could be in default of any of the
Patent License Rights.
(G) If Borrower becomes aware that any item of the Patent Collateral is
infringed or misappropriated by a third party, Borrower shall promptly notify
Bank and shall take such actions as are necessary under the circumstances to
protect such Patent Collateral. Any expense incurred in connection with such
activities shall be borne by Borrower.
(H) Borrower shall continue to mark its products with the numbers of
appropriate patents in accordance with the existing practices of the Borrower.
7. Transfers and Other Liens
Borrower shall not:
(A) sell, assign (by operation of law or otherwise) or otherwise
dispose of any of the Patent Collateral or the License, except (i) as
permitted by the Credit Agreement, or (ii) as permitted by Paragraph 3 of
this Agreement;
(B) create or suffer to exist any lien, security interest or other
charge or encumbrance upon or with respect to any of the Patent Collateral
or the License except as otherwise disclosed in Schedule I, or as
otherwise permitted by the Credit Agreement; or
(C) take any other action in connection with any of the Patent
Collateral or the License that would impair the value of the interests or
rights thereunder of Borrower.
8. Bank Appointed Attorney-in-Fact
Borrower hereby irrevocably appoints Bank as Borrower's attorney-in-fact,
with full authority in Borrower's place, stead and behalf of Borrower and in
Borrower's name or otherwise, from time to time in Bank's sole and absolute
discretion, to take any action and to execute any instrument that Bank may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation: (i) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Patent Collateral; (ii) to receive, endorse, and
collect any drafts or other instruments, documents and chattel paper, in
connection with clause (i) above; and (iii) to file any claims or take any
action or institute any proceedings that Bank may deem necessary or desirable
for the collection of any of the Patent Collateral or otherwise to enforce the
rights of Bank with respect to any of the Patent Collateral or the License.
9. Bank May Perform
(A) If Borrower fails to perform any of its obligations contained herein,
Bank may itself perform, or cause performance of, such obligation, and the
expenses of Bank incurred in connection therewith shall be payable by Borrower
under Paragraph 12(B).
(B) Bank, or its designated representatives, shall have the right, at all
times, to inspect Borrower's premises and to examine books, records and
operations relating to the Patent Collateral.
(C) Bank shall have the right, but in no way shall be obligated, to bring
suit in its own name or in the name of Borrower to enforce any part of the
Patent Collateral. Borrower shall at the reasonable request of Bank do any and
all lawful acts and execute any and all proper documents required by Bank in aid
of such enforcement. Upon demand, Borrower shall promptly reimburse and
indemnify Bank for all costs and expenses incurred by Bank in the exercise of
its rights under this Paragraph.
10. Bank's Duties
The powers conferred on Bank hereunder are solely to protect its interest
in the Patent Collateral and the License and shall not impose any duty upon Bank
to exercise any such powers. Except for the safe custody of any Patent
Collateral in its possession and the accounting for moneys actually received by
it hereunder, Bank shall have no duty as to any Patent Collateral, the License
or as to the taking of any necessary steps to preserve rights against other
parties or any other rights pertaining to any Patent Collateral or the License.
Bank shall be deemed to have exercised reasonable care in the custody and
preservation of the Patent Collateral and the License in its possession if such
Patent Collateral and the License are accorded treatment substantially equal to
that which Bank accords its own property.
11. Remedies
If any Event of Default shall have occurred and be continuing:
(A) Bank may exercise in respect of the Patent Collateral and the License,
in addition to other rights and remedies provided for herein or otherwise
available to Bank, all the rights and remedies of a secured party on default
under the Code (whether or not the Code applies to the affected Patent
Collateral) and also may (i) exercise any and all rights and remedies of
Borrower under or in connection with the License or otherwise in respect of the
Patent Collateral, (ii) require Borrower to, and Borrower hereby agrees that it
will at its expense and upon request of Bank forthwith, assemble all or any part
of the documents embodying the Patent Collateral as directed by Bank and make it
available to Bank at a place to be designated by Bank which is reasonably
convenient to both Bank and Borrower, (iii) occupy any premises owned or leased
by Borrower where documents embodying the Patent Collateral or any part thereof
and/or the License are assembled for a reasonable period in order to effectuate
Bank's rights and remedies hereunder or under law, without any obligation to
Borrower in respect of such occupation, (iv) license the Patent Collateral or
any part thereof, or assign its rights to the Patent License Rights to any
Person, and (v) without notice except as specified below, sell the Patent
Collateral or any part thereof and/or the License in one or more parcels at
public or private sale, at any of Bank's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as Bank may deem
commercially reasonable. Any notice required to be given by Bank with respect to
any of the Patent Collateral which notice is given pursuant to the Credit
Agreement and deemed received pursuant to the Credit Agreement at least five
days before a sale, lease, disposition or other intended action by Bank with
respect to any of the Patent Collateral shall constitute fair and reasonable
notice to Borrower of any such action. Bank shall not be obligated to make any
sale of Patent Collateral or the License regardless of notice of sale having
been given. Bank 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.
(B) All payments received by Borrower under or in connection with any of
the Patent Collateral or the License shall be received in trust for the benefit
of Bank, shall be segregated from other funds of Borrower and shall be forthwith
paid over to Bank in the same form as so received (with any necessary
endorsement).
(C) All payments made under or in connection with or otherwise in respect
of the Patent Collateral or the License, and all cash proceeds received by Bank
in respect of any sale of, collection from, or other realization upon all or any
part of the Patent Collateral or the License may, in the discretion of Bank be
held by Bank as collateral for, and/or then or at any time thereafter applied
(after payment of any amounts payable to Bank pursuant to Paragraph 12) in whole
or in part by Bank against, all or any part of the Obligations, in such order as
Bank shall elect. Any surplus of such cash or cash proceeds held by Bank and
remaining after payment in full of all the Obligations shall be paid over by
Borrower or to whomsoever may be lawfully entitled to receive such surplus.
12. Indemnity and Expenses
(A) Borrower agrees to indemnify and hold Bank harmless from and against
any and all claims, losses and liabilities arising out of or resulting from this
Agreement or the transactions contemplated hereby (including, without
limitation, enforcement of this Agreement), except claims, losses or liabilities
resulting from Bank's bad faith or willful misconduct as determined by a final
judgment of a court of competent jurisdiction.
(B) Borrower, upon demand, will pay to Bank the amount of any and all
reasonable expenses, including, without limitation, the reasonable fees and
disbursements of its counsel (whether incurred at the trial or appellate level,
in an arbitration proceeding, in a bankruptcy, including, without limitation any
adversary proceeding, contested matter or motion or otherwise) and of any
experts and agents, which Bank may incur in connection with any and all of the
following: (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 Patent Collateral and the License, (iii) the
exercise or enforcement of any of Bank's rights hereunder, or (iv) the failure
by Borrower to perform or observe any of the provisions hereof.
13. Amendments, Waivers, Consents
No amendment or waiver of any provision of this Agreement nor consent to
any departure by Borrower herefrom shall in any event be effective unless such
amendment or waiver shall be in writing and signed by Bank, and then such
amendment or waiver shall be effective only in the specific instance and for the
specific purpose for which it was given.
14. Notices
All notices, requests and demands which any party is required or may
desire to give to any other party under any provision of this Agreement must be
in writing delivered to each party at the following address:
BORROWER: Kenco/Williams, Inc.
c/o Williams Controls, Inc.
14100 SW 72nd Avenue
Portland, OR 97224
Attn: Thomas W. Itin, Chairman
Telecopy No.: (248) 851-9080
BANK: Wells Fargo Bank, National Association
Commercial Finance Division
245 S. Los Robles Ave., Ste. 600
Pasadena, CA 91101
Attn: Angelo Samperisi
Telecopy No.: (818) 884-9063
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three days after deposit in the
U.S. mail, first class and postage prepaid; and (c) if sent by telecopy, upon
receipt and the sender will endeavor to send a hard copy of such telecopied
notice to the recipient by mail.
15. Miscellaneous
(A) This Agreement shall create continuing ownership rights in the Patent
Collateral and a continuing security interest in the License and shall (i)
remain in full force and effect until payment in full of the Obligations, (ii)
be binding upon the Borrower, its successors and assigns, and (iii) inure,
together with the rights and remedies of Bank hereunder, to the benefit of Bank,
its successors and assigns.
(B) Upon the payment in full of the Obligations, the assignment made, and
the liens and security interests granted hereby shall terminate and all rights
to the Patent Collateral and the License shall revert to Borrower. Upon any such
termination, Bank will, at Borrower's expense, execute and deliver to Borrower
such documents as Borrower shall reasonably request to evidence such
termination.
(C) If any term or provision of this Agreement is or shall become illegal,
invalid or unenforceable in any jurisdiction, all other terms and provisions of
this Agreement shall remain legal, valid and enforceable in such jurisdiction
and such illegal, invalid or unenforceable provision shall be legal, valid and
enforceable in any other jurisdiction.
(D) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LOCAL LAW OF THE STATE OF
OREGON, EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT OTHERWISE
REFER CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT TO THE SUBSTANTIVE LAW OF
ANOTHER JURISDICTION, AND ALL OTHER LAWS OF MANDATORY APPLICATION.
(E) AS A SPECIFICALLY BARGAINED INDUCEMENT FOR BANK TO ENTER INTO THIS
AGREEMENT AND EXTEND CREDIT TO BORROWER, BORROWER AND BANK EACH WAIVES TRIAL BY
JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING IN RESPECT OF OR
ARISING OUT OF THIS AGREEMENT.
(F) The captions in this Agreement are for reference purposes only and
shall not relate to or affect in any way the construction or interpretation
hereof.
(G) The representations, warranties, covenants and agreements contained
herein or in any Schedule attached hereto shall survive the execution hereof.
<PAGE>
IN WITNESS WHEREOF, Borrower has caused this Agreement to be duly executed
and delivered by its officer thereunto duly authorized as of July 11, 1997.
KENCO/WILLIAMS, INC.
By:____________________________
Title:___________________________
STATE OF OREGON )
) SS:
COUNTY OF MULTNOMAH )
The foregoing Patent Assignment and Security Agreement was executed and
acknowledged before me on July 11, 1997, by ___________________, personally
known to me to be the ___________________ of Kenco/Williams, Inc., a Delaware
corporation, on behalf of such corporation.
Notary Public
My Commission Expires:
Accepted as of July 11, 1997.
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
Vice President
<PAGE>
SCHEDULE I
TO
PATENT ASSIGNMENT AND SECURITY AGREEMENT
1. Patents
No. 5,601,300
No. 4,456,275
No. 4,463,962
No. 4,451,063
No. 4,733,904
No. 4,943,085
No. 5,00,480
No. Des. 295,619
No. Des. 310,793
No. Des. 304,291
No. Des. 320,529
2. Patent Applications
No. 07/266,500
No. 07/266,362
No. 07/262,814
<PAGE>
PATENT ASSIGNMENT AND SECURITY AGREEMENT
THIS PATENT ASSIGNMENT AND SECURITY AGREEMENT between HARDEE
WILLIAMS, INC., a Delaware corporation ("Borrower"), and WELLS FARGO BANK,
NATIONAL ASSOCIATION ("Bank"), is as follows:
1. Preliminary Statements
(A) Borrower has executed and delivered this Agreement to Bank in order to
induce Bank (i) to enter into the Credit Agreement executed and delivered by
Borrower (together with other borrowers) contemporaneously herewith (said Credit
Agreement, as it may hereafter be amended or otherwise modified is hereinafter
referred to as the "Credit Agreement"), and (ii) to make advances pursuant to
the Credit Agreement.
(B) All capitalized terms used herein and not otherwise defined herein
shall have the meaning attributed to them in the Credit Agreement.
2. Assignment
Borrower hereby grants, assigns and conveys to Bank for its benefit
Borrower's entire right, title and interest in, to and under the Patent
Collateral. As used herein, "Patent Collateral" means: all of Borrower's right,
title and interest in and to all of its now owned or existing and filed and
hereafter acquired or arising and filed: Patent License Rights (as defined
below), patents, patent applications, and the inventions and improvements
described and claimed therein, including, without limitation, the patents and
patent applications listed on Schedule I attached hereto, and (i) the reissues,
divisions, continuations, renewals, extensions and continuations-in-part
thereof; (ii) all income, royalties, damages and payments now and hereafter due
and/or payable under with respect thereto, including, without limitation,
damages and payments for past or future infringements thereof; (iii) the right
to sue for past, present and future infringements thereof; and (iv) all rights
corresponding thereto throughout the world. "Patent License Rights" means
Borrower's entire right, title and interest in, to and under all license
agreements with any Person, whether Borrower is licensor or licensee, with
respect to any patents, patent applications and rights thereto, including,
without limitation, the licenses listed on Schedule I.
3. License
In consideration of Borrower's undertaking to fulfill the covenants of
this Agreement and to discharge the Obligations, Bank grants to Borrower a
personal, non-transferable exclusive license (without representation or warranty
of any kind), with the right to sublicense, under each patent application and
patent included in the Patent Collateral to make, to have made, to use and to
sell the subject matter claimed therein, and to exercise the Patent License
Rights (collectively, the "License"), provided, however, that every such
sublicense shall be necessary or desirable in the conduct of Borrower's
business. Upon the occurrence of an Event of Default and upon notice from Bank
to Borrower (i) the License shall terminate forthwith and (ii) all rights and
interests in, to and under the License shall revert to Bank. If such Event of
Default shall cease to exist, then, without any further action on the part of
Bank the License shall revest with Borrower.
4. Grant of Security
As security for the full and prompt performance of all of the Obligations,
Borrower hereby assigns, pledges and grants to Bank a lien on and security
interest in Borrower's entire right, title and interest in and to the Patent
Collateral and the License.
5. Representations and Warranties
Subject to any exceptions listed on Schedule I, Borrower represents and
warrants as follows:
(A) Borrower is the sole, legal and beneficial owner of the entire right,
title and interest in and to the Patent Collateral free and clear of any lien,
security interest, option, charge, pledge, license, assignment (whether
conditional or not) or covenant, or any other encumbrance.
(B) Schedule I sets forth a complete and accurate list of all patent
applications, patents and Patent License Rights owned by Borrower.
(C) Each patent and patent application identified in Schedule I is
subsisting and has not been adjudged invalid, unpatentable, or unenforceable, in
whole or in part, and is, to the best of Borrower's knowledge, valid, patentable
and enforceable.
(D) Borrower has not granted any license, release, covenant not to sue, or
non-assertion assurance to any third person with respect to any part of the
Patent Collateral.
(E) The current conduct of Borrower's business does not conflict with or
infringe any proprietary right of any third party in any way which materially
adversely affects the business, financial condition or business prospects of
Borrower or its affiliates, and no one has asserted to Borrower or any of its
affiliates that such conduct conflicts with or infringes any valid proprietary
right of any third party in any way which materially adversely affects the
business, financial condition or business prospects of the Borrower.
(F) The Patent License Rights are in full force and effect; Borrower is
not in default under any of the Patent License Rights; and no event has occurred
which with notice or the passage of time, or both, might constitute a default by
Borrower under any of the Patent License Rights.
(G) No authorization, consent, approval or other action by, and no notice
to or filing or recording with, any governmental, administrative or judicial
authority or regulatory body is currently or is reasonably expected to be
required for the making by Borrower of the assignments and the granting by
Borrower of the liens and security interests made and granted hereby or for the
execution, delivery or performance of this Agreement by Borrower, or for the
perfection of or the exercise by Bank of its rights and remedies hereunder.
6. Further Assurances
(A) Borrower agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that Bank may reasonably
request, in order (i) to continue, perfect and protect the assignment and the
security interest granted or purported to be granted hereby or (ii) to enable
Bank to exercise and enforce its rights and remedies hereunder with respect to
all or any part of the Patent Collateral and the License. Without limiting the
generality of the foregoing, Borrower will execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as Bank may reasonably request, in
order to perfect and preserve the security interests granted or purported to be
granted hereby.
(B) Borrower hereby authorizes Bank to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Patent Collateral and the License without the signature of Borrower where
permitted by law. A carbon, photographic or other reproduction of this Agreement
or any financing statement covering the Patent Collateral or any part thereof or
the License shall be sufficient as a financing statement where permitted by law.
(C) Borrower will furnish to Bank from time to time statements and
schedules further identifying and describing the Patent Collateral and the
License, including, without limitation, any sublicensing of Patent Collateral by
Borrower, and such other reports in connection with the Patent Collateral and
the License as Bank may reasonably request, all in reasonable detail.
(D) Borrower agrees that, should it obtain an ownership interest in any
patent, patent application or Patent License Rights which is not now identified
in Schedule I, (i) Borrower shall give prompt written notice thereof to Bank,
(ii) the provisions of Paragraph 2 shall automatically apply to such patent,
patent application or Patent License Rights, and (iii) such patent or patent
application shall automatically become part of the Patent Collateral. Borrower
authorizes Bank to modify this Agreement by amending Schedule I to include any
patents and patent applications which become part of the Patent Collateral under
this Paragraph.
(E) With respect to any patent or patent application necessary to the
conduct of Borrower's business, Borrower agrees to take all necessary steps in
any proceeding before the United States Patent and Trademark Office or any
similar office or agency in any other country or any political subdivision
thereof or in any court to maintain and pursue such patent application now or
hereafter included in the Patent Collateral and to maintain each patent now or
hereafter included in the Patent Collateral, including the filing of divisional,
continuation, continuation-in-part and substitute applications, the filing of
applications for reissue, renewal or extensions, the payment of maintenance
fees, and the participation in interference, reexamination, opposition and
infringement proceedings. Any expenses incurred in connection with such
activities shall be borne by Borrower. Without the prior written consent of
Bank, Borrower shall not abandon any right to file a patent application, or
abandon any pending patent application or patent.
(F) Borrower agrees to notify Bank immediately and in writing if Borrower
learns (i) that any of the Patent Collateral may become abandoned or dedicated;
(ii) of any adverse determination or any development (including, without
limitation, the institution of any proceeding in the United States Patent and
Trademark Office or any court) regarding any material item of the Patent
Collateral; or (iii) that it is or potentially could be in default of any of the
Patent License Rights.
(G) If Borrower becomes aware that any item of the Patent Collateral is
infringed or misappropriated by a third party, Borrower shall promptly notify
Bank and shall take such actions as are necessary under the circumstances to
protect such Patent Collateral. Any expense incurred in connection with such
activities shall be borne by Borrower.
(H) Borrower shall continue to mark its products with the numbers of
appropriate patents in accordance with the existing practices of the Borrower.
7. Transfers and Other Liens
Borrower shall not:
(A) sell, assign (by operation of law or otherwise) or otherwise
dispose of any of the Patent Collateral or the License, except (i) as
permitted by the Credit Agreement, or (ii) as permitted by Paragraph 3 of
this Agreement;
(B) create or suffer to exist any lien, security interest or other
charge or encumbrance upon or with respect to any of the Patent Collateral
or the License except as otherwise disclosed in Schedule I, or as
otherwise permitted by the Credit Agreement; or
(C) take any other action in connection with any of the Patent
Collateral or the License that would impair the value of the interests or
rights thereunder of Borrower.
8. Bank Appointed Attorney-in-Fact
Borrower hereby irrevocably appoints Bank as Borrower's attorney-in-fact,
with full authority in Borrower's place, stead and behalf of Borrower and in
Borrower's name or otherwise, from time to time in Bank's sole and absolute
discretion, to take any action and to execute any instrument that Bank may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation: (i) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Patent Collateral; (ii) to receive, endorse, and
collect any drafts or other instruments, documents and chattel paper, in
connection with clause (i) above; and (iii) to file any claims or take any
action or institute any proceedings that Bank may deem necessary or desirable
for the collection of any of the Patent Collateral or otherwise to enforce the
rights of Bank with respect to any of the Patent Collateral or the License.
9. Bank May Perform
(A) If Borrower fails to perform any of its obligations contained herein,
Bank may itself perform, or cause performance of, such obligation, and the
expenses of Bank incurred in connection therewith shall be payable by Borrower
under Paragraph 12(B).
(B) Bank, or its designated representatives, shall have the right, at all
times, to inspect Borrower's premises and to examine books, records and
operations relating to the Patent Collateral.
(C) Bank shall have the right, but in no way shall be obligated, to bring
suit in its own name or in the name of Borrower to enforce any part of the
Patent Collateral. Borrower shall at the reasonable request of Bank do any and
all lawful acts and execute any and all proper documents required by Bank in aid
of such enforcement. Upon demand, Borrower shall promptly reimburse and
indemnify Bank for all costs and expenses incurred by Bank in the exercise of
its rights under this Paragraph.
10. Bank's Duties
The powers conferred on Bank hereunder are solely to protect its interest
in the Patent Collateral and the License and shall not impose any duty upon Bank
to exercise any such powers. Except for the safe custody of any Patent
Collateral in its possession and the accounting for moneys actually received by
it hereunder, Bank shall have no duty as to any Patent Collateral, the License
or as to the taking of any necessary steps to preserve rights against other
parties or any other rights pertaining to any Patent Collateral or the License.
Bank shall be deemed to have exercised reasonable care in the custody and
preservation of the Patent Collateral and the License in its possession if such
Patent Collateral and the License are accorded treatment substantially equal to
that which Bank accords its own property.
11. Remedies
If any Event of Default shall have occurred and be continuing:
(A) Bank may exercise in respect of the Patent Collateral and the License,
in addition to other rights and remedies provided for herein or otherwise
available to Bank, all the rights and remedies of a secured party on default
under the Code (whether or not the Code applies to the affected Patent
Collateral) and also may (i) exercise any and all rights and remedies of
Borrower under or in connection with the License or otherwise in respect of the
Patent Collateral, (ii) require Borrower to, and Borrower hereby agrees that it
will at its expense and upon request of Bank forthwith, assemble all or any part
of the documents embodying the Patent Collateral as directed by Bank and make it
available to Bank at a place to be designated by Bank which is reasonably
convenient to both Bank and Borrower, (iii) occupy any premises owned or leased
by Borrower where documents embodying the Patent Collateral or any part thereof
and/or the License are assembled for a reasonable period in order to effectuate
Bank's rights and remedies hereunder or under law, without any obligation to
Borrower in respect of such occupation, (iv) license the Patent Collateral or
any part thereof, or assign its rights to the Patent License Rights to any
Person, and (v) without notice except as specified below, sell the Patent
Collateral or any part thereof and/or the License in one or more parcels at
public or private sale, at any of Bank's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as Bank may deem
commercially reasonable. Any notice required to be given by Bank with respect to
any of the Patent Collateral which notice is given pursuant to the Credit
Agreement and deemed received pursuant to the Credit Agreement at least five
days before a sale, lease, disposition or other intended action by Bank with
respect to any of the Patent Collateral shall constitute fair and reasonable
notice to Borrower of any such action. Bank shall not be obligated to make any
sale of Patent Collateral or the License regardless of notice of sale having
been given. Bank 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.
(B) All payments received by Borrower under or in connection with any of
the Patent Collateral or the License shall be received in trust for the benefit
of Bank, shall be segregated from other funds of Borrower and shall be forthwith
paid over to Bank in the same form as so received (with any necessary
endorsement).
(C) All payments made under or in connection with or otherwise in respect
of the Patent Collateral or the License, and all cash proceeds received by Bank
in respect of any sale of, collection from, or other realization upon all or any
part of the Patent Collateral or the License may, in the discretion of Bank be
held by Bank as collateral for, and/or then or at any time thereafter applied
(after payment of any amounts payable to Bank pursuant to Paragraph 12) in whole
or in part by Bank against, all or any part of the Obligations, in such order as
Bank shall elect. Any surplus of such cash or cash proceeds held by Bank and
remaining after payment in full of all the Obligations shall be paid over by
Borrower or to whomsoever may be lawfully entitled to receive such surplus.
12. Indemnity and Expenses
(A) Borrower agrees to indemnify and hold Bank harmless from and against
any and all claims, losses and liabilities arising out of or resulting from this
Agreement or the transactions contemplated hereby (including, without
limitation, enforcement of this Agreement), except claims, losses or liabilities
resulting from Bank's bad faith or willful misconduct as determined by a final
judgment of a court of competent jurisdiction.
(B) Borrower, upon demand, will pay to Bank the amount of any and all
reasonable expenses, including, without limitation, the reasonable fees and
disbursements of its counsel (whether incurred at the trial or appellate level,
in an arbitration proceeding, in a bankruptcy, including, without limitation any
adversary proceeding, contested matter or motion or otherwise) and of any
experts and agents, which Bank may incur in connection with any and all of the
following: (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 Patent Collateral and the License, (iii) the
exercise or enforcement of any of Bank's rights hereunder, or (iv) the failure
by Borrower to perform or observe any of the provisions hereof.
13. Amendments, Waivers, Consents
No amendment or waiver of any provision of this Agreement nor consent to
any departure by Borrower herefrom shall in any event be effective unless such
amendment or waiver shall be in writing and signed by Bank, and then such
amendment or waiver shall be effective only in the specific instance and for the
specific purpose for which it was given.
14. Notices
All notices, requests and demands which any party is required or may
desire to give to any other party under any provision of this Agreement must be
in writing delivered to each party at the following address:
BORROWER: Hardee Williams, Inc.
c/o Williams Controls, Inc.
14100 SW 72nd Avenue
Portland, OR 97224
Attn: Thomas W. Itin, Chairman
Telecopy No.: (248) 851-9080
BANK: Wells Fargo Bank, National Association
Commercial Finance Division
245 S. Los Robles Ave., Ste. 600
Pasadena, CA 91101
Attn: Angelo Samperisi
Telecopy No.: (818) 884-9063
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three days after deposit in the
U.S. mail, first class and postage prepaid; and (c) if sent by telecopy, upon
receipt and the sender will endeavor to send a hard copy of such telecopied
notice to the recipient by mail.
15. Miscellaneous
(A) This Agreement shall create continuing ownership rights in the Patent
Collateral and a continuing security interest in the License and shall (i)
remain in full force and effect until payment in full of the Obligations, (ii)
be binding upon the Borrower, its successors and assigns, and (iii) inure,
together with the rights and remedies of Bank hereunder, to the benefit of Bank,
its successors and assigns.
(B) Upon the payment in full of the Obligations, the assignment made, and
the liens and security interests granted hereby shall terminate and all rights
to the Patent Collateral and the License shall revert to Borrower. Upon any such
termination, Bank will, at Borrower's expense, execute and deliver to Borrower
such documents as Borrower shall reasonably request to evidence such
termination.
(C) If any term or provision of this Agreement is or shall become illegal,
invalid or unenforceable in any jurisdiction, all other terms and provisions of
this Agreement shall remain legal, valid and enforceable in such jurisdiction
and such illegal, invalid or unenforceable provision shall be legal, valid and
enforceable in any other jurisdiction.
(D) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LOCAL LAW OF THE STATE OF
OREGON, EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT OTHERWISE
REFER CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT TO THE SUBSTANTIVE LAW OF
ANOTHER JURISDICTION, AND ALL OTHER LAWS OF MANDATORY APPLICATION.
(E) AS A SPECIFICALLY BARGAINED INDUCEMENT FOR BANK TO ENTER INTO THIS
AGREEMENT AND EXTEND CREDIT TO BORROWER, BORROWER AND BANK EACH WAIVES TRIAL BY
JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING IN RESPECT OF OR
ARISING OUT OF THIS AGREEMENT.
(F) The captions in this Agreement are for reference purposes only and
shall not relate to or affect in any way the construction or interpretation
hereof.
(G) The representations, warranties, covenants and agreements contained
herein or in any Schedule attached hereto shall survive the execution hereof.
<PAGE>
IN WITNESS WHEREOF, Borrower has caused this Agreement to be duly executed
and delivered by its officer thereunto duly authorized as of July 11, 1997.
HARDEE WILLIAMS, INC.
By:____________________________
Title:___________________________
STATE OF OREGON )
) SS:
COUNTY OF MULTNOMAH )
The foregoing Patent Assignment and Security Agreement was executed and
acknowledged before me on July 11, 1997, by ___________________, personally
known to me to be the ___________________ of Hardee Williams, Inc., a Delaware
corporation, on behalf of such corporation.
Notary Public
My Commission Expires:
Accepted as of July 11, 1997.
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
Vice President
<PAGE>
SCHEDULE I
TO
PATENT ASSIGNMENT AND SECURITY AGREEMENT
1. Patents
No. 3,177,639
No. 3,729,910
No. 4,423,651
PATENT ASSIGNMENT AND SECURITY AGREEMENT
THIS PATENT ASSIGNMENT AND SECURITY AGREEMENT between APTEK
WILLIAMS, INC., a Delaware corporation ("Borrower"), and WELLS FARGO BANK,
NATIONAL ASSOCIATION ("Bank"), is as follows:
1. Preliminary Statements
(A) Borrower has executed and delivered this Agreement to Bank in order to
induce Bank (i) to enter into the Credit Agreement executed and delivered by
Borrower (together with other borrowers) contemporaneously herewith (said Credit
Agreement, as it may hereafter be amended or otherwise modified is hereinafter
referred to as the "Credit Agreement"), and (ii) to make advances pursuant to
the Credit Agreement.
(B) All capitalized terms used herein and not otherwise defined herein
shall have the meaning attributed to them in the Credit Agreement.
2. Assignment
Borrower hereby grants, assigns and conveys to Bank for its benefit
Borrower's entire right, title and interest in, to and under the Patent
Collateral. As used herein, "Patent Collateral" means: all of Borrower's right,
title and interest in and to all of its now owned or existing and filed and
hereafter acquired or arising and filed: Patent License Rights (as defined
below), patents, patent applications, and the inventions and improvements
described and claimed therein, including, without limitation, the patents and
patent applications listed on Schedule I attached hereto, and (i) the reissues,
divisions, continuations, renewals, extensions and continuations-in-part
thereof; (ii) all income, royalties, damages and payments now and hereafter due
and/or payable under with respect thereto, including, without limitation,
damages and payments for past or future infringements thereof; (iii) the right
to sue for past, present and future infringements thereof; and (iv) all rights
corresponding thereto throughout the world. "Patent License Rights" means
Borrower's entire right, title and interest in, to and under all license
agreements with any Person, whether Borrower is licensor or licensee, with
respect to any patents, patent applications and rights thereto, including,
without limitation, the licenses listed on Schedule I.
3. License
In consideration of Borrower's undertaking to fulfill the covenants of
this Agreement and to discharge the Obligations, Bank grants to Borrower a
personal, non-transferable exclusive license (without representation or warranty
of any kind), with the right to sublicense, under each patent application and
patent included in the Patent Collateral to make, to have made, to use and to
sell the subject matter claimed therein, and to exercise the Patent License
Rights (collectively, the "License"), provided, however, that every such
sublicense shall be necessary or desirable in the conduct of Borrower's
business. Upon the occurrence of an Event of Default and upon notice from Bank
to Borrower (i) the License shall terminate forthwith and (ii) all rights and
interests in, to and under the License shall revert to Bank. If such Event of
Default shall cease to exist, then, without any further action on the part of
Bank the License shall revest with Borrower.
4. Grant of Security
As security for the full and prompt performance of all of the Obligations,
Borrower hereby assigns, pledges and grants to Bank a lien on and security
interest in Borrower's entire right, title and interest in and to the Patent
Collateral and the License.
5. Representations and Warranties
Subject to any exceptions listed on Schedule I, Borrower represents and
warrants as follows:
(A) Borrower is the sole, legal and beneficial owner of the entire right,
title and interest in and to the Patent Collateral free and clear of any lien,
security interest, option, charge, pledge, license, assignment (whether
conditional or not) or covenant, or any other encumbrance.
(B) Schedule I sets forth a complete and accurate list of all patent
applications, patents and Patent License Rights owned by Borrower.
(C) Each patent and patent application identified in Schedule I is
subsisting and has not been adjudged invalid, unpatentable, or unenforceable, in
whole or in part, and is, to the best of Borrower's knowledge, valid, patentable
and enforceable.
(D) Borrower has not granted any license, release, covenant not to sue, or
non-assertion assurance to any third person with respect to any part of the
Patent Collateral.
(E) The current conduct of Borrower's business does not conflict with or
infringe any proprietary right of any third party in any way which materially
adversely affects the business, financial condition or business prospects of
Borrower or its affiliates, and no one has asserted to Borrower or any of its
affiliates that such conduct conflicts with or infringes any valid proprietary
right of any third party in any way which materially adversely affects the
business, financial condition or business prospects of the Borrower.
(F) The Patent License Rights are in full force and effect; Borrower is
not in default under any of the Patent License Rights; and no event has occurred
which with notice or the passage of time, or both, might constitute a default by
Borrower under any of the Patent License Rights.
(G) No authorization, consent, approval or other action by, and no notice
to or filing or recording with, any governmental, administrative or judicial
authority or regulatory body is currently or is reasonably expected to be
required for the making by Borrower of the assignments and the granting by
Borrower of the liens and security interests made and granted hereby or for the
execution, delivery or performance of this Agreement by Borrower, or for the
perfection of or the exercise by Bank of its rights and remedies hereunder.
6. Further Assurances
(A) Borrower agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that Bank may reasonably
request, in order (i) to continue, perfect and protect the assignment and the
security interest granted or purported to be granted hereby or (ii) to enable
Bank to exercise and enforce its rights and remedies hereunder with respect to
all or any part of the Patent Collateral and the License. Without limiting the
generality of the foregoing, Borrower will execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as Bank may reasonably request, in
order to perfect and preserve the security interests granted or purported to be
granted hereby.
(B) Borrower hereby authorizes Bank to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Patent Collateral and the License without the signature of Borrower where
permitted by law. A carbon, photographic or other reproduction of this Agreement
or any financing statement covering the Patent Collateral or any part thereof or
the License shall be sufficient as a financing statement where permitted by law.
(C) Borrower will furnish to Bank from time to time statements and
schedules further identifying and describing the Patent Collateral and the
License, including, without limitation, any sublicensing of Patent Collateral by
Borrower, and such other reports in connection with the Patent Collateral and
the License as Bank may reasonably request, all in reasonable detail.
(D) Borrower agrees that, should it obtain an ownership interest in any
patent, patent application or Patent License Rights which is not now identified
in Schedule I, (i) Borrower shall give prompt written notice thereof to Bank,
(ii) the provisions of Paragraph 2 shall automatically apply to such patent,
patent application or Patent License Rights, and (iii) such patent or patent
application shall automatically become part of the Patent Collateral. Borrower
authorizes Bank to modify this Agreement by amending Schedule I to include any
patents and patent applications which become part of the Patent Collateral under
this Paragraph.
(E) With respect to any patent or patent application necessary to the
conduct of Borrower's business, Borrower agrees to take all necessary steps in
any proceeding before the United States Patent and Trademark Office or any
similar office or agency in any other country or any political subdivision
thereof or in any court to maintain and pursue such patent application now or
hereafter included in the Patent Collateral and to maintain each patent now or
hereafter included in the Patent Collateral, including the filing of divisional,
continuation, continuation-in-part and substitute applications, the filing of
applications for reissue, renewal or extensions, the payment of maintenance
fees, and the participation in interference, reexamination, opposition and
infringement proceedings. Any expenses incurred in connection with such
activities shall be borne by Borrower. Without the prior written consent of
Bank, Borrower shall not abandon any right to file a patent application, or
abandon any pending patent application or patent.
(F) Borrower agrees to notify Bank immediately and in writing if Borrower
learns (i) that any of the Patent Collateral may become abandoned or dedicated;
(ii) of any adverse determination or any development (including, without
limitation, the institution of any proceeding in the United States Patent and
Trademark Office or any court) regarding any material item of the Patent
Collateral; or (iii) that it is or potentially could be in default of any of the
Patent License Rights.
(G) If Borrower becomes aware that any item of the Patent Collateral is
infringed or misappropriated by a third party, Borrower shall promptly notify
Bank and shall take such actions as are necessary under the circumstances to
protect such Patent Collateral. Any expense incurred in connection with such
activities shall be borne by Borrower.
(H) Borrower shall continue to mark its products with the numbers of
appropriate patents in accordance with the existing practices of the Borrower.
7. Transfers and Other Liens
Borrower shall not:
(A) sell, assign (by operation of law or otherwise) or otherwise
dispose of any of the Patent Collateral or the License, except (i) as
permitted by the Credit Agreement, or (ii) as permitted by Paragraph 3 of
this Agreement;
(B) create or suffer to exist any lien, security interest or other
charge or encumbrance upon or with respect to any of the Patent Collateral
or the License except as otherwise disclosed in Schedule I, or as
otherwise permitted by the Credit Agreement; or
(C) take any other action in connection with any of the Patent
Collateral or the License that would impair the value of the interests or
rights thereunder of Borrower.
8. Bank Appointed Attorney-in-Fact
Borrower hereby irrevocably appoints Bank as Borrower's attorney-in-fact,
with full authority in Borrower's place, stead and behalf of Borrower and in
Borrower's name or otherwise, from time to time in Bank's sole and absolute
discretion, to take any action and to execute any instrument that Bank may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation: (i) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Patent Collateral; (ii) to receive, endorse, and
collect any drafts or other instruments, documents and chattel paper, in
connection with clause (i) above; and (iii) to file any claims or take any
action or institute any proceedings that Bank may deem necessary or desirable
for the collection of any of the Patent Collateral or otherwise to enforce the
rights of Bank with respect to any of the Patent Collateral or the License.
9. Bank May Perform
(A) If Borrower fails to perform any of its obligations contained herein,
Bank may itself perform, or cause performance of, such obligation, and the
expenses of Bank incurred in connection therewith shall be payable by Borrower
under Paragraph 12(B).
(B) Bank, or its designated representatives, shall have the right, at all
times, to inspect Borrower's premises and to examine books, records and
operations relating to the Patent Collateral.
(C) Bank shall have the right, but in no way shall be obligated, to bring
suit in its own name or in the name of Borrower to enforce any part of the
Patent Collateral. Borrower shall at the reasonable request of Bank do any and
all lawful acts and execute any and all proper documents required by Bank in aid
of such enforcement. Upon demand, Borrower shall promptly reimburse and
indemnify Bank for all costs and expenses incurred by Bank in the exercise of
its rights under this Paragraph.
10. Bank's Duties
The powers conferred on Bank hereunder are solely to protect its interest
in the Patent Collateral and the License and shall not impose any duty upon Bank
to exercise any such powers. Except for the safe custody of any Patent
Collateral in its possession and the accounting for moneys actually received by
it hereunder, Bank shall have no duty as to any Patent Collateral, the License
or as to the taking of any necessary steps to preserve rights against other
parties or any other rights pertaining to any Patent Collateral or the License.
Bank shall be deemed to have exercised reasonable care in the custody and
preservation of the Patent Collateral and the License in its possession if such
Patent Collateral and the License are accorded treatment substantially equal to
that which Bank accords its own property.
11. Remedies
If any Event of Default shall have occurred and be continuing:
(A) Bank may exercise in respect of the Patent Collateral and the License,
in addition to other rights and remedies provided for herein or otherwise
available to Bank, all the rights and remedies of a secured party on default
under the Code (whether or not the Code applies to the affected Patent
Collateral) and also may (i) exercise any and all rights and remedies of
Borrower under or in connection with the License or otherwise in respect of the
Patent Collateral, (ii) require Borrower to, and Borrower hereby agrees that it
will at its expense and upon request of Bank forthwith, assemble all or any part
of the documents embodying the Patent Collateral as directed by Bank and make it
available to Bank at a place to be designated by Bank which is reasonably
convenient to both Bank and Borrower, (iii) occupy any premises owned or leased
by Borrower where documents embodying the Patent Collateral or any part thereof
and/or the License are assembled for a reasonable period in order to effectuate
Bank's rights and remedies hereunder or under law, without any obligation to
Borrower in respect of such occupation, (iv) license the Patent Collateral or
any part thereof, or assign its rights to the Patent License Rights to any
Person, and (v) without notice except as specified below, sell the Patent
Collateral or any part thereof and/or the License in one or more parcels at
public or private sale, at any of Bank's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as Bank may deem
commercially reasonable. Any notice required to be given by Bank with respect to
any of the Patent Collateral which notice is given pursuant to the Credit
Agreement and deemed received pursuant to the Credit Agreement at least five
days before a sale, lease, disposition or other intended action by Bank with
respect to any of the Patent Collateral shall constitute fair and reasonable
notice to Borrower of any such action. Bank shall not be obligated to make any
sale of Patent Collateral or the License regardless of notice of sale having
been given. Bank 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.
(B) All payments received by Borrower under or in connection with any of
the Patent Collateral or the License shall be received in trust for the benefit
of Bank, shall be segregated from other funds of Borrower and shall be forthwith
paid over to Bank in the same form as so received (with any necessary
endorsement).
(C) All payments made under or in connection with or otherwise in respect
of the Patent Collateral or the License, and all cash proceeds received by Bank
in respect of any sale of, collection from, or other realization upon all or any
part of the Patent Collateral or the License may, in the discretion of Bank be
held by Bank as collateral for, and/or then or at any time thereafter applied
(after payment of any amounts payable to Bank pursuant to Paragraph 12) in whole
or in part by Bank against, all or any part of the Obligations, in such order as
Bank shall elect. Any surplus of such cash or cash proceeds held by Bank and
remaining after payment in full of all the Obligations shall be paid over by
Borrower or to whomsoever may be lawfully entitled to receive such surplus.
12. Indemnity and Expenses
(A) Borrower agrees to indemnify and hold Bank harmless from and against
any and all claims, losses and liabilities arising out of or resulting from this
Agreement or the transactions contemplated hereby (including, without
limitation, enforcement of this Agreement), except claims, losses or liabilities
resulting from Bank's bad faith or willful misconduct as determined by a final
judgment of a court of competent jurisdiction.
(B) Borrower, upon demand, will pay to Bank the amount of any and all
reasonable expenses, including, without limitation, the reasonable fees and
disbursements of its counsel (whether incurred at the trial or appellate level,
in an arbitration proceeding, in a bankruptcy, including, without limitation any
adversary proceeding, contested matter or motion or otherwise) and of any
experts and agents, which Bank may incur in connection with any and all of the
following: (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 Patent Collateral and the License, (iii) the
exercise or enforcement of any of Bank's rights hereunder, or (iv) the failure
by Borrower to perform or observe any of the provisions hereof.
13. Amendments, Waivers, Consents
No amendment or waiver of any provision of this Agreement nor consent to
any departure by Borrower herefrom shall in any event be effective unless such
amendment or waiver shall be in writing and signed by Bank, and then such
amendment or waiver shall be effective only in the specific instance and for the
specific purpose for which it was given.
14. Notices
All notices, requests and demands which any party is required or may
desire to give to any other party under any provision of this Agreement must be
in writing delivered to each party at the following address:
BORROWER: Aptek Williams, Inc.
c/o Williams Controls, Inc.
14100 SW 72nd Avenue
Portland, OR 97224
Attn: Thomas W. Itin, Chairman
Telecopy No.: (248) 851-9080
BANK: Wells Fargo Bank, National Association
Commercial Finance Division
245 S. Los Robles Ave., Ste. 600
Pasadena, CA 91101
Attn: Angelo Samperisi
Telecopy No.: (818) 884-9063
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three days after deposit in the
U.S. mail, first class and postage prepaid; and (c) if sent by telecopy, upon
receipt and the sender will endeavor to send a hard copy of such telecopied
notice to the recipient by mail.
15. Miscellaneous
(A) This Agreement shall create continuing ownership rights in the Patent
Collateral and a continuing security interest in the License and shall (i)
remain in full force and effect until payment in full of the Obligations, (ii)
be binding upon the Borrower, its successors and assigns, and (iii) inure,
together with the rights and remedies of Bank hereunder, to the benefit of Bank,
its successors and assigns.
(B) Upon the payment in full of the Obligations, the assignment made, and
the liens and security interests granted hereby shall terminate and all rights
to the Patent Collateral and the License shall revert to Borrower. Upon any such
termination, Bank will, at Borrower's expense, execute and deliver to Borrower
such documents as Borrower shall reasonably request to evidence such
termination.
(C) If any term or provision of this Agreement is or shall become illegal,
invalid or unenforceable in any jurisdiction, all other terms and provisions of
this Agreement shall remain legal, valid and enforceable in such jurisdiction
and such illegal, invalid or unenforceable provision shall be legal, valid and
enforceable in any other jurisdiction.
(D) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LOCAL LAW OF THE STATE OF
OREGON, EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT OTHERWISE
REFER CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT TO THE SUBSTANTIVE LAW OF
ANOTHER JURISDICTION, AND ALL OTHER LAWS OF MANDATORY APPLICATION.
(E) AS A SPECIFICALLY BARGAINED INDUCEMENT FOR BANK TO ENTER INTO THIS
AGREEMENT AND EXTEND CREDIT TO BORROWER, BORROWER AND BANK EACH WAIVES TRIAL BY
JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING IN RESPECT OF OR
ARISING OUT OF THIS AGREEMENT.
(F) The captions in this Agreement are for reference purposes only and
shall not relate to or affect in any way the construction or interpretation
hereof.
(G) The representations, warranties, covenants and agreements contained
herein or in any Schedule attached hereto shall survive the execution hereof.
<PAGE>
IN WITNESS WHEREOF, Borrower has caused this Agreement to be duly executed
and delivered by its officer thereunto duly authorized as of July 11, 1997.
APTEK WILLIAMS, INC.
By:____________________________
Title:___________________________
STATE OF OREGON )
) SS:
COUNTY OF MULTNOMAH )
The foregoing Patent Assignment and Security Agreement was executed and
acknowledged before me on July 11, 1997, by ___________________, personally
known to me to be the ___________________ of Aptek Williams, Inc., a Delaware
corporation, on behalf of such corporation.
Notary Public
My Commission Expires:
Accepted as of July 11, 1997.
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
Vice President
<PAGE>
SCHEDULE I
TO
PATENT ASSIGNMENT AND SECURITY AGREEMENT
1. Patents
No. 5,038,375
TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT between AGROTEC WILLIAMS, INC., a
Delaware corporation ("Borrower"), and WELLS FARGO BANK, NATIONAL
ASSOCIATION ("Bank"), is as follows:
1. Preliminary Statements
(A) Borrower has executed and delivered this Agreement to Bank in order to
induce Bank (i) to enter into the Credit Agreement executed and delivered by
Borrower (together with other borrowers) contemporaneously herewith (said Credit
Agreement, as it may hereafter be amended or otherwise modified is hereinafter
referred to as the "Credit Agreement"), and (ii) to make advances pursuant to
the Credit Agreement.
(B) All capitalized terms used herein and not otherwise defined herein
shall have the meaning attributed to them in the Credit Agreement.
2. Grant of Security
As security for the full and prompt performance of all of the Obligations,
Borrower hereby assigns, pledges and grants to Bank a lien on and security
interest in Borrower's entire right, title and interest in and to the Trademark
Collateral. As used herein, "Trademark Collateral" means: (i) all of the
Borrower's right, title and interest in and to all of its now owned or existing
and filed and hereafter acquired or arising and filed Trademark License Rights
(as defined below), trademarks, service marks, trademark or service mark
registrations, trade names, and trademark or service mark applications,
including, without limitation, each mark, registration, and application listed
on Schedule I, attached hereto and made a part hereof, (ii) all renewals
thereof, (iii) all income, royalties, damages and payments now and hereafter due
and/or payable with respect thereto, including, without limitation, damages and
payment for past or future infringements thereof, (iv) all rights to sue for
past, present and future infringements thereof, (v) all rights corresponding
thereto throughout the world, and (vi) together in each case with the goodwill
of Borrower's business connected with the use of, and symbolized by, such marks
and rights. "Trademark License Rights" means Borrower's entire right, title and
interest in, to and under all license agreements with any Person, whether
Borrower is licensor or licensee, with respect to any trademarks, service marks,
or tradenames, including, without limitation, the licenses listed on Schedule I.
3. Representations and Warranties
Subject to any exceptions listed on Schedule I, Borrower represents and
warrants as follows:
(A) Borrower is the sole and exclusive owner of the entire and encumbered
right, title and interest in and to each of the Trademark Collateral free and
clear of any liens, charges and encumbrances.
(B) Schedule I sets forth a complete and accurate list of all Trademark
License Rights, trademarks, trade names, service marks, trademark and service
mark registrations, and applications for trademark or service mark registrations
owned by Borrower.
(C) Each trademark, service mark, trade name, trademark and service mark
registration, and application for trademark or service mark registration
identified in Schedule I is subsisting and has not been adjudged invalid,
unregistrable or unenforceable, in whole or in part, and each registered
trademark and service mark and each application for trademark and service mark
registration is valid, registered or registrable and enforceable. Borrower is
not aware of any prior use of any item of Trademark Collateral which could lead
to such item becoming invalid or unenforceable, including prior unauthorized
uses by third parties and uses which were not supported by the goodwill of the
business connected with such item.
(D) Borrower has not granted any license, release, covenant not to sue, or
non-assertion assurance to any third person with respect to any part of the
Trademark Collateral.
(E) Borrower has used reasonable and proper statutory notice in connection
with its use of each registered trademark and service mark.
(F) The current conduct of Borrower's business does not conflict with or
infringe any proprietary right of any third party in any way which materially
adversely affects the business, financial condition or business prospects of the
Borrower or its affiliates, and no one has asserted to Borrower or any of its
affiliates that such conduct conflicts with or infringes any valid proprietary
right of any third party in any way which materially adversely affects the
business, financial condition or business prospects of the Borrower.
(G) The Trademark License Rights are in full force and effect; Borrower is
not in default under any of the Trademark License Rights; and no event has
occurred which with notice or the passage of time, or both, might constitute a
default by Borrower under any of the Trademark License Rights.
(H) No authorization, consent, approval, or other action by, and no notice
to or filing or recording with, any governmental, administrative or judicial
authority or regulatory body is currently or is reasonably expected to be
required for the grant by Borrower of the liens and security interests granted
hereby or for the execution, delivery or performance of this Agreement by
Borrower, other than routine action which may be required after the date hereof
to maintain rights in the trademarks, or for the perfection of or the exercise
by Bank of its rights and remedies hereunder.
4. Further Assurances
(A) Borrower agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that Bank may reasonably
request, in order (i) to continue, perfect and protect the assignment and the
security interest granted or purported to be granted hereby or (ii) to enable
Bank to exercise and enforce its rights and remedies hereunder with respect to
any part of the Trademark Collateral. Without limiting the generality of the
foregoing, the Borrower will execute and file such financing or continuation
statements, amendments hereto, and such other instruments or notices as may be
necessary or desirable, or as Bank may reasonably request, in order to perfect
and preserve the security interest granted or purported to be granted hereby.
(B) Borrower hereby authorizes Bank to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Trademark Collateral without the signature of Borrower where permitted by
law. A carbon, photographic or other reproduction of this Agreement or any
financing statement covering the Trademark Collateral or any part thereof shall
be sufficient as a financing statement where permitted by law.
(C) Borrower will furnish to Bank from time to time statements and
schedules further identifying and describing the Trademark Collateral and such
other reports in connection with the Trademark Collateral as Bank may reasonably
request, all in reasonable detail.
(D) Borrower agrees that, should it obtain an ownership interest in any
Trademark License Rights, trademark, service mark, trade name, trademark or
service mark registration, or application for trademark or service mark
registration which is not now identified in Schedule I, (i) Borrower shall give
prompt written notice thereof to Bank, (ii) the provisions of Paragraph 2 shall
automatically apply to any such Trademark License Rights, trademark, service
mark, trademark or service mark registration, or application for trademark or
service mark registration, and (iii) any such Trademark License Rights, mark,
registration, or application, together with the goodwill of the business
connected with the use of the mark and symbolized by it, shall automatically
become part of the Trademark Collateral. Borrower authorizes Bank to modify this
Agreement by amending Schedule I to include any Trademark License Rights,
trademark, service mark, trademark or service mark registration, or application
for trademark or service mark registration which becomes part of the Trademark
Collateral under this Paragraph and the goodwill of the business to which each
such mark pertains.
(E) With respect to any trademark necessary to the conduct of Borrower's
business, Borrower agrees to take all necessary steps in any proceeding before
the United States Patent and Trademark Office or any similar office or agency in
any other country or any political subdivision thereof or in any court to
maintain each registered trademark, service mark, and trademark or service mark
registration, and to pursue each application for trademark or service mark
registration now or hereafter included in the Trademark Collateral, including
the filing of applications for renewal, the payment of maintenance fees, and
participation in opposition, interference and infringement proceedings. To the
extent necessary or desirable to the conduct of its business, Borrower agrees to
take corresponding steps with respect to each new or other registered trademark,
service mark trademark or service mark registration, and application for
trademark or service mark registration to which the Borrower is now or later
becomes entitled. Any expenses incurred in connection with such activities shall
be borne by Borrower. Without the prior written consent of Bank, Borrower shall
not abandon any right to file an application for trademark or service mark
registration, or abandon any pending application, registration, trademark or
service mark.
(F) Borrower agrees to notify Bank immediately if Borrower learns (i) that
any item of the Trademark Collateral may become abandoned; (ii) of any adverse
determination or any development (including, without limitation, the institution
of any proceeding in the United States Patent and Trademark Office or any court)
regarding any item of the Trademark Collateral; or (iii) that it is or
potentially could be in default of any of the Trademark License Rights.
(G) If Borrower becomes aware that any item of the Trademark Collateral is
infringed or misappropriated by a third party, Borrower shall promptly notify
Bank and shall take such actions as are necessary under the circumstances to
protect such Trademark Collateral. If Borrower elects to file an infringement
suit, Bank, upon notice from Borrower of Borrower's intent to file such suit,
shall either join in such suit or reassign to Borrower Bank's rights under
Section 2(iii). Any expense incurred in connection with such activities shall be
borne by Borrower.
(H) Borrower shall continue to use reasonable and proper statutory notice
in connection with its use of each registered trademark or service mark.
5. Transfers and Other Liens
Borrower shall not:
(A) sell, assign (by operation of law or otherwise) or otherwise dispose
of any of the Trademark Collateral, except as permitted by the Credit Agreement;
(B) create or suffer to exist any lien, security interest or other charge
or encumbrance upon or with respect to any of the Trademark Collateral except as
otherwise disclosed in Schedule I, or as otherwise permitted by the Credit
Agreement; or
(C) take any other action in connection with any of the Trademark
Collateral that would impair the value of the interests or rights thereunder of
Borrower.
6. Bank Appointed Attorney-in-Fact
Borrower hereby irrevocably appoints Bank as Borrower's attorney-in-fact,
with full authority in Borrower's place, stead and on behalf of Borrower and in
Borrower's name or otherwise, from time to time in Bank's sole and absolute
discretion, to take any action and to execute any instrument that Bank may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation: (i) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Trademark Collateral; (ii) to receive, endorse, and
collect any drafts or other instruments, documents and chattel paper, in
connection with clause (i) above; and (iii) to file any claims or take any
action or institute any proceedings that Bank may deem necessary or desirable
for the collection of any of the Trademark Collateral or otherwise to enforce
the rights of Bank with respect to any of the Trademark Collateral.
7. Bank May Perform
(A) If Borrower fails to perform any of its obligations contained herein,
Bank may itself perform, or cause performance of, such obligations, and the
expenses of Bank incurred in connection therewith shall be payable by Borrower
under Paragraph 10(B).
(B) Bank, or its designated representatives, shall have the right, at all
times, to inspect Borrower's premises and to examine Borrower's books, records
and operations relating to the Trademark Collateral.
8. Bank's Duties
The powers conferred on Bank hereunder are solely to protect its interest
in the Trademark Collateral and shall not impose any duty upon Bank to exercise
any such powers. Except for the safe custody of any Trademark Collateral in its
possession and the accounting for moneys actually received by it hereunder, Bank
shall have no duty as to any Trademark Collateral, or as to the taking of any
necessary steps to preserve rights against other parties or any other rights
pertaining to any Trademark Collateral. Bank shall be deemed to have exercised
reasonable care in the custody and preservation of the Trademark Collateral in
its possession if the Trademark Collateral is accorded treatment substantially
equal to that which Bank accords its own property.
9. Remedies
If any Event of Default shall have occurred and be continuing:
(A) Bank may exercise in respect of the Trademark Collateral, in addition
to other rights and remedies provided for herein or otherwise available to Bank,
all the rights and remedies of a secured party on default under the Code
(whether or not the Code applies to the affected Trademark Collateral) and also
may (i) exercise any and all rights and remedies of Borrower under or otherwise
in respect of the Trademark Collateral; (ii) require Borrower to, and Borrower
hereby agrees that it will at its expense and upon request of Bank forthwith,
assemble all or any part of the documents embodying the Trademark Collateral as
directed by Bank and make them available to Bank at a place to be designated by
Bank which is reasonably convenient to both Bank and Borrower, (iii) occupy any
premises owned or leased by Borrower where documents embodying the Trademark
Collateral or any part thereof are assembled for a reasonable period in order to
effectuate Bank's rights and remedies hereunder or under law, without any
obligation to Borrower in respect of such occupation, (iv) license the Trademark
Collateral or any part thereof, or assign its rights to the Trademark License
Rights to any Person, and (v) without notice except as specified below, sell the
Trademark Collateral or any part thereof in one or more parcels at public or
private sale, at any of Bank's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as Bank may deem commercially
reasonable. In the event of any sale, assignment, or other disposition of any of
the Trademark Collateral, the goodwill of the business connected with and
symbolized by any Trademark Collateral subject to such disposition shall be
included, and Borrower shall supply to Bank or its designee Borrower's know-how
and expertise relating to the manufacture and sale of products or the provision
of services relating to any Trademark Collateral subject to such disposition,
and Borrower's customer lists and other records relating to such Trademark
Collateral and to the distribution of such products and services. Borrower
agrees that, to the extent notice of sale shall be required by law, at least
five days notice to Borrower of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. Bank shall not be obligated to make any sale of any Trademark
Collateral regardless of notice of sale having been given. Bank 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.
(B) All payments received by Borrower under or in connection with any of
the Trademark Collateral shall be received in trust for the benefit of Bank,
shall be segregated from other funds of Borrower and shall be forthwith paid
over to Bank in the same form as so received (with any necessary endorsement).
(C) All payments made hereunder or in connection with or otherwise in
respect of the Trademark Collateral and all cash proceeds received by Bank in
respect of any sale of, collection from, or other realization upon all or any
part of the Trademark Collateral may, in the discretion of Bank, be held by Bank
as collateral for, and/or then or at any time thereafter applied (after payment
of any amounts payable to Bank pursuant to Paragraph 10) in whole or in part by
Bank against, all or any part of the Obligations, in such order as Bank shall
elect. Any surplus of such cash or cash proceeds held by Bank and remaining
after payment in full, in cash, of all the Obligations shall be paid over to
Borrower or to whomsoever may be lawfully entitled to receive such surplus.
10. Indemnity and Expenses
(A) Borrower agrees to indemnify and hold Bank harmless from and against
any and all claims, losses and liabilities arising out of or resulting from this
Agreement or the transactions contemplated hereby, or the enforcement of this
Agreement, including, without limitation, claims, losses or liabilities
resulting from Bank's negligence, but excluding claims, losses or liabilities
resulting from Bank's bad faith or willful misconduct as determined by a final
judgment of a court of competent jurisdiction.
(B) Borrower, upon demand, will pay to Bank the amount of any and all
reasonable expenses, including, without limitation, the reasonable fees and
disbursements of its counsel (whether incurred at the trial or appellate level,
in an arbitration proceeding, in a bankruptcy, including, without limitation any
adversary proceeding, contested matter or motion or otherwise) and of any
experts and agents, which Bank may incur in connection with any and all of the
following (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 Trademark Collateral, (iii) the exercise or
enforcement of any of Bank's rights hereunder, or (iv) the failure by Borrower
to perform or observe any of the provisions hereof.
11. Amendments, Waivers, Consents
No amendment or waiver of any provision of this Agreement nor consent to
any departure by Borrower herefrom shall in any event be effective unless such
amendment or waiver shall be in writing and signed by Bank, and then such
amendment or waiver shall be effective only in the specific instance and for the
specific purpose for which it was given.
12. Notices
All notices, requests and demands which any party is required or may
desire to give to any other party under any provision of this Agreement must be
in writing delivered to each party at the following address:
BORROWER: Agrotec Williams, Inc.
c/o Williams Controls, Inc.
14100 SW 72nd Avenue
Portland, OR 97224
Attn: Thomas W. Itin, Chairman
Telecopy No.: (248) 851-9080
BANK: Wells Fargo Bank, National Association
Commercial Finance Division
245 S. Los Robles Ave., Ste. 600
Pasadena, CA 91101
Attn: Angelo Samperisi
Telecopy No.: (818) 884-9063
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three days after deposit in the
U.S. mail, first class and postage prepaid; and (c) if sent by telecopy, upon
receipt and the sender will endeavor to send a hard copy of such telecopied
notice to the recipient by mail.
13. Miscellaneous
(A) This Agreement shall create a continuing security interest in the
Trademark Collateral and shall (i) remain in full force and effect until payment
in full, in cash, of the Obligations, (ii) be binding upon Borrower, its
successors and assigns, and (iii) inure, together with the rights and remedies
of Bank hereunder, to the benefit of Bank, its successors and assigns.
(B) Upon the full payment of all Obligations, the liens and security
interests granted hereby shall terminate and all rights to the Trademark
Collateral shall revert to Borrower. Upon any such termination, Bank will, at
Borrower's expense, execute and deliver to Borrower such documents as Borrower
shall reasonably request to evidence such termination and reversion.
(C) If any term or provision of this Agreement is or shall become illegal,
invalid or unenforceable in any jurisdiction, all other terms and provisions of
this Agreement shall remain legal, valid and enforceable in such jurisdiction
and such illegal, invalid or unenforceable provision shall be legal, valid and
enforceable in any other jurisdiction.
(D) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LOCAL LAW OF THE STATE OF
OREGON, EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT OTHERWISE
REFER CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT TO THE SUBSTANTIVE LAW OF
ANOTHER JURISDICTION, AND ALL OTHER LAWS OF MANDATORY APPLICATION.
(E) AS A SPECIFICALLY BARGAINED INDUCEMENT FOR BANK TO ENTER INTO THIS
AGREEMENT AND EXTEND CREDIT TO BORROWER, BORROWER AND BANK EACH WAIVES TRIAL BY
JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING IN RESPECT OF OR
ARISING OUT OF THIS AGREEMENT.
(F) The captions in this Agreement are for reference purposes only and
shall not relate to or affect in any way the construction or interpretation
hereof.
(G) The representations, warranties, covenants and agreements contained
herein or in any Schedule attached hereto shall survive the execution hereof.
<PAGE>
IN WITNESS WHEREOF, Borrower has caused this Agreement to be duly executed
and delivered by its officer thereunto duly authorized as of July 11, 1997.
AGROTEC WILLIAMS, INC.
By:____________________________
Title:___________________________
STATE OF OREGON )
) SS:
COUNTY OF MULTNOMAH )
The foregoing Trademark Security Agreement was executed and acknowledged
before me on July 11, 1997, by ______________________, personally known to me to
be the _____________ of Agrotec Williams, Inc., a Delaware corporation, on
behalf of such corporation.
Notary Public
My Commission Expires:
Accepted as of July 11, 1997.
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
Vice President
<PAGE>
SCHEDULE I
TO
TRADEMARK SECURITY AGREEMENT
1. Trademark Registrations
Reg. No. 1,89,761
<PAGE>
TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT between HARDEE WILLIAMS, INC., a
Delaware corporation ("Borrower"), and WELLS FARGO BANK, NATIONAL
ASSOCIATION ("Bank"), is as follows:
1. Preliminary Statements
(A) Borrower has executed and delivered this Agreement to Bank in order to
induce Bank (i) to enter into the Credit Agreement executed and delivered by
Borrower (together with other borrowers) contemporaneously herewith (said Credit
Agreement, as it may hereafter be amended or otherwise modified is hereinafter
referred to as the "Credit Agreement"), and (ii) to make advances pursuant to
the Credit Agreement.
(B) All capitalized terms used herein and not otherwise defined herein
shall have the meaning attributed to them in the Credit Agreement.
2. Grant of Security
As security for the full and prompt performance of all of the Obligations,
Borrower hereby assigns, pledges and grants to Bank a lien on and security
interest in Borrower's entire right, title and interest in and to the Trademark
Collateral. As used herein, "Trademark Collateral" means: (i) all of the
Borrower's right, title and interest in and to all of its now owned or existing
and filed and hereafter acquired or arising and filed Trademark License Rights
(as defined below), trademarks, service marks, trademark or service mark
registrations, trade names, and trademark or service mark applications,
including, without limitation, each mark, registration, and application listed
on Schedule I, attached hereto and made a part hereof, (ii) all renewals
thereof, (iii) all income, royalties, damages and payments now and hereafter due
and/or payable with respect thereto, including, without limitation, damages and
payment for past or future infringements thereof, (iv) all rights to sue for
past, present and future infringements thereof, (v) all rights corresponding
thereto throughout the world, and (vi) together in each case with the goodwill
of Borrower's business connected with the use of, and symbolized by, such marks
and rights. "Trademark License Rights" means Borrower's entire right, title and
interest in, to and under all license agreements with any Person, whether
Borrower is licensor or licensee, with respect to any trademarks, service marks,
or tradenames, including, without limitation, the licenses listed on Schedule I.
3. Representations and Warranties
Subject to any exceptions listed on Schedule I, Borrower represents and
warrants as follows:
(A) Borrower is the sole and exclusive owner of the entire and encumbered
right, title and interest in and to each of the Trademark Collateral free and
clear of any liens, charges and encumbrances.
(B) Schedule I sets forth a complete and accurate list of all Trademark
License Rights, trademarks, trade names, service marks, trademark and service
mark registrations, and applications for trademark or service mark registrations
owned by Borrower.
(C) Each trademark, service mark, trade name, trademark and service mark
registration, and application for trademark or service mark registration
identified in Schedule I is subsisting and has not been adjudged invalid,
unregistrable or unenforceable, in whole or in part, and each registered
trademark and service mark and each application for trademark and service mark
registration is valid, registered or registrable and enforceable. Borrower is
not aware of any prior use of any item of Trademark Collateral which could lead
to such item becoming invalid or unenforceable, including prior unauthorized
uses by third parties and uses which were not supported by the goodwill of the
business connected with such item.
(D) Borrower has not granted any license, release, covenant not to sue, or
non-assertion assurance to any third person with respect to any part of the
Trademark Collateral.
(E) Borrower has used reasonable and proper statutory notice in connection
with its use of each registered trademark and service mark.
(F) The current conduct of Borrower's business does not conflict with or
infringe any proprietary right of any third party in any way which materially
adversely affects the business, financial condition or business prospects of the
Borrower or its affiliates, and no one has asserted to Borrower or any of its
affiliates that such conduct conflicts with or infringes any valid proprietary
right of any third party in any way which materially adversely affects the
business, financial condition or business prospects of the Borrower.
(G) The Trademark License Rights are in full force and effect; Borrower is
not in default under any of the Trademark License Rights; and no event has
occurred which with notice or the passage of time, or both, might constitute a
default by Borrower under any of the Trademark License Rights.
(H) No authorization, consent, approval, or other action by, and no notice
to or filing or recording with, any governmental, administrative or judicial
authority or regulatory body is currently or is reasonably expected to be
required for the grant by Borrower of the liens and security interests granted
hereby or for the execution, delivery or performance of this Agreement by
Borrower, other than routine action which may be required after the date hereof
to maintain rights in the trademarks, or for the perfection of or the exercise
by Bank of its rights and remedies hereunder.
4. Further Assurances
(A) Borrower agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that Bank may reasonably
request, in order (i) to continue, perfect and protect the assignment and the
security interest granted or purported to be granted hereby or (ii) to enable
Bank to exercise and enforce its rights and remedies hereunder with respect to
any part of the Trademark Collateral. Without limiting the generality of the
foregoing, the Borrower will execute and file such financing or continuation
statements, amendments hereto, and such other instruments or notices as may be
necessary or desirable, or as Bank may reasonably request, in order to perfect
and preserve the security interest granted or purported to be granted hereby.
(B) Borrower hereby authorizes Bank to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Trademark Collateral without the signature of Borrower where permitted by
law. A carbon, photographic or other reproduction of this Agreement or any
financing statement covering the Trademark Collateral or any part thereof shall
be sufficient as a financing statement where permitted by law.
(C) Borrower will furnish to Bank from time to time statements and
schedules further identifying and describing the Trademark Collateral and such
other reports in connection with the Trademark Collateral as Bank may reasonably
request, all in reasonable detail.
(D) Borrower agrees that, should it obtain an ownership interest in any
Trademark License Rights, trademark, service mark, trade name, trademark or
service mark registration, or application for trademark or service mark
registration which is not now identified in Schedule I, (i) Borrower shall give
prompt written notice thereof to Bank, (ii) the provisions of Paragraph 2 shall
automatically apply to any such Trademark License Rights, trademark, service
mark, trademark or service mark registration, or application for trademark or
service mark registration, and (iii) any such Trademark License Rights, mark,
registration, or application, together with the goodwill of the business
connected with the use of the mark and symbolized by it, shall automatically
become part of the Trademark Collateral. Borrower authorizes Bank to modify this
Agreement by amending Schedule I to include any Trademark License Rights,
trademark, service mark, trademark or service mark registration, or application
for trademark or service mark registration which becomes part of the Trademark
Collateral under this Paragraph and the goodwill of the business to which each
such mark pertains.
(E) With respect to any trademark necessary to the conduct of Borrower's
business, Borrower agrees to take all necessary steps in any proceeding before
the United States Patent and Trademark Office or any similar office or agency in
any other country or any political subdivision thereof or in any court to
maintain each registered trademark, service mark, and trademark or service mark
registration, and to pursue each application for trademark or service mark
registration now or hereafter included in the Trademark Collateral, including
the filing of applications for renewal, the payment of maintenance fees, and
participation in opposition, interference and infringement proceedings. To the
extent necessary or desirable to the conduct of its business, Borrower agrees to
take corresponding steps with respect to each new or other registered trademark,
service mark trademark or service mark registration, and application for
trademark or service mark registration to which the Borrower is now or later
becomes entitled. Any expenses incurred in connection with such activities shall
be borne by Borrower. Without the prior written consent of Bank, Borrower shall
not abandon any right to file an application for trademark or service mark
registration, or abandon any pending application, registration, trademark or
service mark.
(F) Borrower agrees to notify Bank immediately if Borrower learns (i) that
any item of the Trademark Collateral may become abandoned; (ii) of any adverse
determination or any development (including, without limitation, the institution
of any proceeding in the United States Patent and Trademark Office or any court)
regarding any item of the Trademark Collateral; or (iii) that it is or
potentially could be in default of any of the Trademark License Rights.
(G) If Borrower becomes aware that any item of the Trademark Collateral is
infringed or misappropriated by a third party, Borrower shall promptly notify
Bank and shall take such actions as are necessary under the circumstances to
protect such Trademark Collateral. If Borrower elects to file an infringement
suit, Bank, upon notice from Borrower of Borrower's intent to file such suit,
shall either join in such suit or reassign to Borrower Bank's rights under
Section 2(iii). Any expense incurred in connection with such activities shall be
borne by Borrower.
(H) Borrower shall continue to use reasonable and proper statutory notice
in connection with its use of each registered trademark or service mark.
5. Transfers and Other Liens
Borrower shall not:
(A) sell, assign (by operation of law or otherwise) or otherwise dispose
of any of the Trademark Collateral, except as permitted by the Credit Agreement;
(B) create or suffer to exist any lien, security interest or other charge
or encumbrance upon or with respect to any of the Trademark Collateral except as
otherwise disclosed in Schedule I, or as otherwise permitted by the Credit
Agreement; or
(C) take any other action in connection with any of the Trademark
Collateral that would impair the value of the interests or rights thereunder of
Borrower.
6. Bank Appointed Attorney-in-Fact
Borrower hereby irrevocably appoints Bank as Borrower's attorney-in-fact,
with full authority in Borrower's place, stead and on behalf of Borrower and in
Borrower's name or otherwise, from time to time in Bank's sole and absolute
discretion, to take any action and to execute any instrument that Bank may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation: (i) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Trademark Collateral; (ii) to receive, endorse, and
collect any drafts or other instruments, documents and chattel paper, in
connection with clause (i) above; and (iii) to file any claims or take any
action or institute any proceedings that Bank may deem necessary or desirable
for the collection of any of the Trademark Collateral or otherwise to enforce
the rights of Bank with respect to any of the Trademark Collateral.
7. Bank May Perform
(A) If Borrower fails to perform any of its obligations contained herein,
Bank may itself perform, or cause performance of, such obligations, and the
expenses of Bank incurred in connection therewith shall be payable by Borrower
under Paragraph 10(B).
(B) Bank, or its designated representatives, shall have the right, at all
times, to inspect Borrower's premises and to examine Borrower's books, records
and operations relating to the Trademark Collateral.
8. Bank's Duties
The powers conferred on Bank hereunder are solely to protect its interest
in the Trademark Collateral and shall not impose any duty upon Bank to exercise
any such powers. Except for the safe custody of any Trademark Collateral in its
possession and the accounting for moneys actually received by it hereunder, Bank
shall have no duty as to any Trademark Collateral, or as to the taking of any
necessary steps to preserve rights against other parties or any other rights
pertaining to any Trademark Collateral. Bank shall be deemed to have exercised
reasonable care in the custody and preservation of the Trademark Collateral in
its possession if the Trademark Collateral is accorded treatment substantially
equal to that which Bank accords its own property.
9. Remedies
If any Event of Default shall have occurred and be continuing:
(A) Bank may exercise in respect of the Trademark Collateral, in addition
to other rights and remedies provided for herein or otherwise available to Bank,
all the rights and remedies of a secured party on default under the Code
(whether or not the Code applies to the affected Trademark Collateral) and also
may (i) exercise any and all rights and remedies of Borrower under or otherwise
in respect of the Trademark Collateral; (ii) require Borrower to, and Borrower
hereby agrees that it will at its expense and upon request of Bank forthwith,
assemble all or any part of the documents embodying the Trademark Collateral as
directed by Bank and make them available to Bank at a place to be designated by
Bank which is reasonably convenient to both Bank and Borrower, (iii) occupy any
premises owned or leased by Borrower where documents embodying the Trademark
Collateral or any part thereof are assembled for a reasonable period in order to
effectuate Bank's rights and remedies hereunder or under law, without any
obligation to Borrower in respect of such occupation, (iv) license the Trademark
Collateral or any part thereof, or assign its rights to the Trademark License
Rights to any Person, and (v) without notice except as specified below, sell the
Trademark Collateral or any part thereof in one or more parcels at public or
private sale, at any of Bank's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as Bank may deem commercially
reasonable. In the event of any sale, assignment, or other disposition of any of
the Trademark Collateral, the goodwill of the business connected with and
symbolized by any Trademark Collateral subject to such disposition shall be
included, and Borrower shall supply to Bank or its designee Borrower's know-how
and expertise relating to the manufacture and sale of products or the provision
of services relating to any Trademark Collateral subject to such disposition,
and Borrower's customer lists and other records relating to such Trademark
Collateral and to the distribution of such products and services. Borrower
agrees that, to the extent notice of sale shall be required by law, at least
five days notice to Borrower of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. Bank shall not be obligated to make any sale of any Trademark
Collateral regardless of notice of sale having been given. Bank 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.
(B) All payments received by Borrower under or in connection with any of
the Trademark Collateral shall be received in trust for the benefit of Bank,
shall be segregated from other funds of Borrower and shall be forthwith paid
over to Bank in the same form as so received (with any necessary endorsement).
(C) All payments made hereunder or in connection with or otherwise in
respect of the Trademark Collateral and all cash proceeds received by Bank in
respect of any sale of, collection from, or other realization upon all or any
part of the Trademark Collateral may, in the discretion of Bank, be held by Bank
as collateral for, and/or then or at any time thereafter applied (after payment
of any amounts payable to Bank pursuant to Paragraph 10) in whole or in part by
Bank against, all or any part of the Obligations, in such order as Bank shall
elect. Any surplus of such cash or cash proceeds held by Bank and remaining
after payment in full, in cash, of all the Obligations shall be paid over to
Borrower or to whomsoever may be lawfully entitled to receive such surplus.
10. Indemnity and Expenses
(A) Borrower agrees to indemnify and hold Bank harmless from and against
any and all claims, losses and liabilities arising out of or resulting from this
Agreement or the transactions contemplated hereby, or the enforcement of this
Agreement, including, without limitation, claims, losses or liabilities
resulting from Bank's negligence, but excluding claims, losses or liabilities
resulting from Bank's bad faith or willful misconduct as determined by a final
judgment of a court of competent jurisdiction.
(B) Borrower, upon demand, will pay to Bank the amount of any and all
reasonable expenses, including, without limitation, the reasonable fees and
disbursements of its counsel (whether incurred at the trial or appellate level,
in an arbitration proceeding, in a bankruptcy, including, without limitation any
adversary proceeding, contested matter or motion or otherwise) and of any
experts and agents, which Bank may incur in connection with any and all of the
following (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 Trademark Collateral, (iii) the exercise or
enforcement of any of Bank's rights hereunder, or (iv) the failure by Borrower
to perform or observe any of the provisions hereof.
11. Amendments, Waivers, Consents
No amendment or waiver of any provision of this Agreement nor consent to
any departure by Borrower herefrom shall in any event be effective unless such
amendment or waiver shall be in writing and signed by Bank, and then such
amendment or waiver shall be effective only in the specific instance and for the
specific purpose for which it was given.
12. Notices
All notices, requests and demands which any party is required or may
desire to give to any other party under any provision of this Agreement must be
in writing delivered to each party at the following address:
BORROWER: Hardee Williams, Inc.
c/o Williams Controls, Inc.
14100 SW 72nd Avenue
Portland, OR 97224
Attn: Thomas W. Itin, Chairman
Telecopy No.: (248) 851-9080
BANK: Wells Fargo Bank, National Association
Commercial Finance Division
245 S. Los Robles Ave., Ste. 600
Pasadena, CA 91101
Attn: Angelo Samperisi
Telecopy No.: (818) 884-9063
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three days after deposit in the
U.S. mail, first class and postage prepaid; and (c) if sent by telecopy, upon
receipt and the sender will endeavor to send a hard copy of such telecopied
notice to the recipient by mail.
13. Miscellaneous
(A) This Agreement shall create a continuing security interest in the
Trademark Collateral and shall (i) remain in full force and effect until payment
in full, in cash, of the Obligations, (ii) be binding upon Borrower, its
successors and assigns, and (iii) inure, together with the rights and remedies
of Bank hereunder, to the benefit of Bank, its successors and assigns.
(B) Upon the full payment of all Obligations, the liens and security
interests granted hereby shall terminate and all rights to the Trademark
Collateral shall revert to Borrower. Upon any such termination, Bank will, at
Borrower's expense, execute and deliver to Borrower such documents as Borrower
shall reasonably request to evidence such termination and reversion.
(C) If any term or provision of this Agreement is or shall become illegal,
invalid or unenforceable in any jurisdiction, all other terms and provisions of
this Agreement shall remain legal, valid and enforceable in such jurisdiction
and such illegal, invalid or unenforceable provision shall be legal, valid and
enforceable in any other jurisdiction.
(D) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LOCAL LAW OF THE STATE OF
OREGON, EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT OTHERWISE
REFER CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT TO THE SUBSTANTIVE LAW OF
ANOTHER JURISDICTION, AND ALL OTHER LAWS OF MANDATORY APPLICATION.
(E) AS A SPECIFICALLY BARGAINED INDUCEMENT FOR BANK TO ENTER INTO THIS
AGREEMENT AND EXTEND CREDIT TO BORROWER, BORROWER AND BANK EACH WAIVES TRIAL BY
JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING IN RESPECT OF OR
ARISING OUT OF THIS AGREEMENT.
(F) The captions in this Agreement are for reference purposes only and
shall not relate to or affect in any way the construction or interpretation
hereof.
(G) The representations, warranties, covenants and agreements contained
herein or in any Schedule attached hereto shall survive the execution hereof.
<PAGE>
IN WITNESS WHEREOF, Borrower has caused this Agreement to be duly executed
and delivered by its officer thereunto duly authorized as ofJuly 11, 1997.
HARDEE WILLIAMS, INC.
By:____________________________
Title:___________________________
STATE OF OREGON )
) SS:
COUNTY OF MULTNOMAH )
The foregoing Trademark Security Agreement was executed and acknowledged
before me on July 11, 1997, by ______________________, personally known to me to
be the _____________ of Hardee Williams, Inc., a Delaware corporation, on behalf
of such corporation.
Notary Public
My Commission Expires:
Accepted as of July 11, 1997.
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
Vice President
<PAGE>
SCHEDULE I
TO
TRADEMARK SECURITY AGREEMENT
1. Trademark Registrations
Reg. No. 1,511,526
Reg. No. 1,511,527
<PAGE>
TRADEMARK SECURITY AGREEMENT
THIS TRADEMARK SECURITY AGREEMENT between KENCO/WILLIAMS, INC., a
Delaware corporation ("Borrower"), and WELLS FARGO BANK, NATIONAL
ASSOCIATION ("Bank"), is as follows:
1. Preliminary Statements
(A) Borrower has executed and delivered this Agreement to Bank in order to
induce Bank (i) to enter into the Credit Agreement executed and delivered by
Borrower (together with other borrowers) contemporaneously herewith (said Credit
Agreement, as it may hereafter be amended or otherwise modified is hereinafter
referred to as the "Credit Agreement"), and (ii) to make advances pursuant to
the Credit Agreement.
(B) All capitalized terms used herein and not otherwise defined herein
shall have the meaning attributed to them in the Credit Agreement.
2. Grant of Security
As security for the full and prompt performance of all of the Obligations,
Borrower hereby assigns, pledges and grants to Bank a lien on and security
interest in Borrower's entire right, title and interest in and to the Trademark
Collateral. As used herein, "Trademark Collateral" means: (i) all of the
Borrower's right, title and interest in and to all of its now owned or existing
and filed and hereafter acquired or arising and filed Trademark License Rights
(as defined below), trademarks, service marks, trademark or service mark
registrations, trade names, and trademark or service mark applications,
including, without limitation, each mark, registration, and application listed
on Schedule I, attached hereto and made a part hereof, (ii) all renewals
thereof, (iii) all income, royalties, damages and payments now and hereafter due
and/or payable with respect thereto, including, without limitation, damages and
payment for past or future infringements thereof, (iv) all rights to sue for
past, present and future infringements thereof, (v) all rights corresponding
thereto throughout the world, and (vi) together in each case with the goodwill
of Borrower's business connected with the use of, and symbolized by, such marks
and rights. "Trademark License Rights" means Borrower's entire right, title and
interest in, to and under all license agreements with any Person, whether
Borrower is licensor or licensee, with respect to any trademarks, service marks,
or tradenames, including, without limitation, the licenses listed on Schedule I.
3. Representations and Warranties
Subject to any exceptions listed on Schedule I, Borrower represents and
warrants as follows:
(A) Borrower is the sole and exclusive owner of the entire and encumbered
right, title and interest in and to each of the Trademark Collateral free and
clear of any liens, charges and encumbrances.
(B) Schedule I sets forth a complete and accurate list of all Trademark
License Rights, trademarks, trade names, service marks, trademark and service
mark registrations, and applications for trademark or service mark registrations
owned by Borrower.
(C) Each trademark, service mark, trade name, trademark and service mark
registration, and application for trademark or service mark registration
identified in Schedule I is subsisting and has not been adjudged invalid,
unregistrable or unenforceable, in whole or in part, and each registered
trademark and service mark and each application for trademark and service mark
registration is valid, registered or registrable and enforceable. Borrower is
not aware of any prior use of any item of Trademark Collateral which could lead
to such item becoming invalid or unenforceable, including prior unauthorized
uses by third parties and uses which were not supported by the goodwill of the
business connected with such item.
(D) Borrower has not granted any license, release, covenant not to sue, or
non-assertion assurance to any third person with respect to any part of the
Trademark Collateral.
(E) Borrower has used reasonable and proper statutory notice in connection
with its use of each registered trademark and service mark.
(F) The current conduct of Borrower's business does not conflict with or
infringe any proprietary right of any third party in any way which materially
adversely affects the business, financial condition or business prospects of the
Borrower or its affiliates, and no one has asserted to Borrower or any of its
affiliates that such conduct conflicts with or infringes any valid proprietary
right of any third party in any way which materially adversely affects the
business, financial condition or business prospects of the Borrower.
(G) The Trademark License Rights are in full force and effect; Borrower is
not in default under any of the Trademark License Rights; and no event has
occurred which with notice or the passage of time, or both, might constitute a
default by Borrower under any of the Trademark License Rights.
(H) No authorization, consent, approval, or other action by, and no notice
to or filing or recording with, any governmental, administrative or judicial
authority or regulatory body is currently or is reasonably expected to be
required for the grant by Borrower of the liens and security interests granted
hereby or for the execution, delivery or performance of this Agreement by
Borrower, other than routine action which may be required after the date hereof
to maintain rights in the trademarks, or for the perfection of or the exercise
by Bank of its rights and remedies hereunder.
4. Further Assurances
(A) Borrower agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that Bank may reasonably
request, in order (i) to continue, perfect and protect the assignment and the
security interest granted or purported to be granted hereby or (ii) to enable
Bank to exercise and enforce its rights and remedies hereunder with respect to
any part of the Trademark Collateral. Without limiting the generality of the
foregoing, the Borrower will execute and file such financing or continuation
statements, amendments hereto, and such other instruments or notices as may be
necessary or desirable, or as Bank may reasonably request, in order to perfect
and preserve the security interest granted or purported to be granted hereby.
(B) Borrower hereby authorizes Bank to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Trademark Collateral without the signature of Borrower where permitted by
law. A carbon, photographic or other reproduction of this Agreement or any
financing statement covering the Trademark Collateral or any part thereof shall
be sufficient as a financing statement where permitted by law.
(C) Borrower will furnish to Bank from time to time statements and
schedules further identifying and describing the Trademark Collateral and such
other reports in connection with the Trademark Collateral as Bank may reasonably
request, all in reasonable detail.
(D) Borrower agrees that, should it obtain an ownership interest in any
Trademark License Rights, trademark, service mark, trade name, trademark or
service mark registration, or application for trademark or service mark
registration which is not now identified in Schedule I, (i) Borrower shall give
prompt written notice thereof to Bank, (ii) the provisions of Paragraph 2 shall
automatically apply to any such Trademark License Rights, trademark, service
mark, trademark or service mark registration, or application for trademark or
service mark registration, and (iii) any such Trademark License Rights, mark,
registration, or application, together with the goodwill of the business
connected with the use of the mark and symbolized by it, shall automatically
become part of the Trademark Collateral. Borrower authorizes Bank to modify this
Agreement by amending Schedule I to include any Trademark License Rights,
trademark, service mark, trademark or service mark registration, or application
for trademark or service mark registration which becomes part of the Trademark
Collateral under this Paragraph and the goodwill of the business to which each
such mark pertains.
(E) With respect to any trademark necessary to the conduct of Borrower's
business, Borrower agrees to take all necessary steps in any proceeding before
the United States Patent and Trademark Office or any similar office or agency in
any other country or any political subdivision thereof or in any court to
maintain each registered trademark, service mark, and trademark or service mark
registration, and to pursue each application for trademark or service mark
registration now or hereafter included in the Trademark Collateral, including
the filing of applications for renewal, the payment of maintenance fees, and
participation in opposition, interference and infringement proceedings. To the
extent necessary or desirable to the conduct of its business, Borrower agrees to
take corresponding steps with respect to each new or other registered trademark,
service mark trademark or service mark registration, and application for
trademark or service mark registration to which the Borrower is now or later
becomes entitled. Any expenses incurred in connection with such activities shall
be borne by Borrower. Without the prior written consent of Bank, Borrower shall
not abandon any right to file an application for trademark or service mark
registration, or abandon any pending application, registration, trademark or
service mark.
(F) Borrower agrees to notify Bank immediately if Borrower learns (i) that
any item of the Trademark Collateral may become abandoned; (ii) of any adverse
determination or any development (including, without limitation, the institution
of any proceeding in the United States Patent and Trademark Office or any court)
regarding any item of the Trademark Collateral; or (iii) that it is or
potentially could be in default of any of the Trademark License Rights.
(G) If Borrower becomes aware that any item of the Trademark Collateral is
infringed or misappropriated by a third party, Borrower shall promptly notify
Bank and shall take such actions as are necessary under the circumstances to
protect such Trademark Collateral. If Borrower elects to file an infringement
suit, Bank, upon notice from Borrower of Borrower's intent to file such suit,
shall either join in such suit or reassign to Borrower Bank's rights under
Section 2(iii). Any expense incurred in connection with such activities shall be
borne by Borrower.
(H) Borrower shall continue to use reasonable and proper statutory notice
in connection with its use of each registered trademark or service mark.
5. Transfers and Other Liens
Borrower shall not:
(A) sell, assign (by operation of law or otherwise) or otherwise dispose
of any of the Trademark Collateral, except as permitted by the Credit Agreement;
(B) create or suffer to exist any lien, security interest or other charge
or encumbrance upon or with respect to any of the Trademark Collateral except as
otherwise disclosed in Schedule I, or as otherwise permitted by the Credit
Agreement; or
(C) take any other action in connection with any of the Trademark
Collateral that would impair the value of the interests or rights thereunder of
Borrower.
6. Bank Appointed Attorney-in-Fact
Borrower hereby irrevocably appoints Bank as Borrower's attorney-in-fact,
with full authority in Borrower's place, stead and on behalf of Borrower and in
Borrower's name or otherwise, from time to time in Bank's sole and absolute
discretion, to take any action and to execute any instrument that Bank may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation: (i) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become due under
or in respect of any of the Trademark Collateral; (ii) to receive, endorse, and
collect any drafts or other instruments, documents and chattel paper, in
connection with clause (i) above; and (iii) to file any claims or take any
action or institute any proceedings that Bank may deem necessary or desirable
for the collection of any of the Trademark Collateral or otherwise to enforce
the rights of Bank with respect to any of the Trademark Collateral.
7. Bank May Perform
(A) If Borrower fails to perform any of its obligations contained herein,
Bank may itself perform, or cause performance of, such obligations, and the
expenses of Bank incurred in connection therewith shall be payable by Borrower
under Paragraph 10(B).
(B) Bank, or its designated representatives, shall have the right, at all
times, to inspect Borrower's premises and to examine Borrower's books, records
and operations relating to the Trademark Collateral.
8. Bank's Duties
The powers conferred on Bank hereunder are solely to protect its interest
in the Trademark Collateral and shall not impose any duty upon Bank to exercise
any such powers. Except for the safe custody of any Trademark Collateral in its
possession and the accounting for moneys actually received by it hereunder, Bank
shall have no duty as to any Trademark Collateral, or as to the taking of any
necessary steps to preserve rights against other parties or any other rights
pertaining to any Trademark Collateral. Bank shall be deemed to have exercised
reasonable care in the custody and preservation of the Trademark Collateral in
its possession if the Trademark Collateral is accorded treatment substantially
equal to that which Bank accords its own property.
9. Remedies
If any Event of Default shall have occurred and be continuing:
(A) Bank may exercise in respect of the Trademark Collateral, in addition
to other rights and remedies provided for herein or otherwise available to Bank,
all the rights and remedies of a secured party on default under the Code
(whether or not the Code applies to the affected Trademark Collateral) and also
may (i) exercise any and all rights and remedies of Borrower under or otherwise
in respect of the Trademark Collateral; (ii) require Borrower to, and Borrower
hereby agrees that it will at its expense and upon request of Bank forthwith,
assemble all or any part of the documents embodying the Trademark Collateral as
directed by Bank and make them available to Bank at a place to be designated by
Bank which is reasonably convenient to both Bank and Borrower, (iii) occupy any
premises owned or leased by Borrower where documents embodying the Trademark
Collateral or any part thereof are assembled for a reasonable period in order to
effectuate Bank's rights and remedies hereunder or under law, without any
obligation to Borrower in respect of such occupation, (iv) license the Trademark
Collateral or any part thereof, or assign its rights to the Trademark License
Rights to any Person, and (v) without notice except as specified below, sell the
Trademark Collateral or any part thereof in one or more parcels at public or
private sale, at any of Bank's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as Bank may deem commercially
reasonable. In the event of any sale, assignment, or other disposition of any of
the Trademark Collateral, the goodwill of the business connected with and
symbolized by any Trademark Collateral subject to such disposition shall be
included, and Borrower shall supply to Bank or its designee Borrower's know-how
and expertise relating to the manufacture and sale of products or the provision
of services relating to any Trademark Collateral subject to such disposition,
and Borrower's customer lists and other records relating to such Trademark
Collateral and to the distribution of such products and services. Borrower
agrees that, to the extent notice of sale shall be required by law, at least
five days notice to Borrower of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. Bank shall not be obligated to make any sale of any Trademark
Collateral regardless of notice of sale having been given. Bank 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.
(B) All payments received by Borrower under or in connection with any of
the Trademark Collateral shall be received in trust for the benefit of Bank,
shall be segregated from other funds of Borrower and shall be forthwith paid
over to Bank in the same form as so received (with any necessary endorsement).
(C) All payments made hereunder or in connection with or otherwise in
respect of the Trademark Collateral and all cash proceeds received by Bank in
respect of any sale of, collection from, or other realization upon all or any
part of the Trademark Collateral may, in the discretion of Bank, be held by Bank
as collateral for, and/or then or at any time thereafter applied (after payment
of any amounts payable to Bank pursuant to Paragraph 10) in whole or in part by
Bank against, all or any part of the Obligations, in such order as Bank shall
elect. Any surplus of such cash or cash proceeds held by Bank and remaining
after payment in full, in cash, of all the Obligations shall be paid over to
Borrower or to whomsoever may be lawfully entitled to receive such surplus.
10. Indemnity and Expenses
(A) Borrower agrees to indemnify and hold Bank harmless from and against
any and all claims, losses and liabilities arising out of or resulting from this
Agreement or the transactions contemplated hereby, or the enforcement of this
Agreement, including, without limitation, claims, losses or liabilities
resulting from Bank's negligence, but excluding claims, losses or liabilities
resulting from Bank's bad faith or willful misconduct as determined by a final
judgment of a court of competent jurisdiction.
(B) Borrower, upon demand, will pay to Bank the amount of any and all
reasonable expenses, including, without limitation, the reasonable fees and
disbursements of its counsel (whether incurred at the trial or appellate level,
in an arbitration proceeding, in a bankruptcy, including, without limitation any
adversary proceeding, contested matter or motion or otherwise) and of any
experts and agents, which Bank may incur in connection with any and all of the
following (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 Trademark Collateral, (iii) the exercise or
enforcement of any of Bank's rights hereunder, or (iv) the failure by Borrower
to perform or observe any of the provisions hereof.
11. Amendments, Waivers, Consents
No amendment or waiver of any provision of this Agreement nor consent to
any departure by Borrower herefrom shall in any event be effective unless such
amendment or waiver shall be in writing and signed by Bank, and then such
amendment or waiver shall be effective only in the specific instance and for the
specific purpose for which it was given.
12. Notices
All notices, requests and demands which any party is required or may
desire to give to any other party under any provision of this Agreement must be
in writing delivered to each party at the following address:
BORROWER: Kenco/Williams, Inc.
c/o Williams Controls, Inc.
14100 SW 72nd Avenue
Portland, OR 97224
Attn: Thomas W. Itin, Chairman
Telecopy No.: (248) 851-9080
BANK: Wells Fargo Bank, National Association
Commercial Finance Division
245 S. Los Robles Ave., Ste. 600
Pasadena, CA 91101
Attn: Angelo Samperisi
Telecopy No.: (818) 884-9063
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three days after deposit in the
U.S. mail, first class and postage prepaid; and (c) if sent by telecopy, upon
receipt and the sender will endeavor to send a hard copy of such telecopied
notice to the recipient by mail.
13. Miscellaneous
(A) This Agreement shall create a continuing security interest in the
Trademark Collateral and shall (i) remain in full force and effect until payment
in full, in cash, of the Obligations, (ii) be binding upon Borrower, its
successors and assigns, and (iii) inure, together with the rights and remedies
of Bank hereunder, to the benefit of Bank, its successors and assigns.
(B) Upon the full payment of all Obligations, the liens and security
interests granted hereby shall terminate and all rights to the Trademark
Collateral shall revert to Borrower. Upon any such termination, Bank will, at
Borrower's expense, execute and deliver to Borrower such documents as Borrower
shall reasonably request to evidence such termination and reversion.
(C) If any term or provision of this Agreement is or shall become illegal,
invalid or unenforceable in any jurisdiction, all other terms and provisions of
this Agreement shall remain legal, valid and enforceable in such jurisdiction
and such illegal, invalid or unenforceable provision shall be legal, valid and
enforceable in any other jurisdiction.
(D) THIS AGREEMENT SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LOCAL LAW OF THE STATE OF
OREGON, EXCLUDING ANY CONFLICTS OF LAW RULE OR PRINCIPLE THAT MIGHT OTHERWISE
REFER CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT TO THE SUBSTANTIVE LAW OF
ANOTHER JURISDICTION, AND ALL OTHER LAWS OF MANDATORY APPLICATION.
(E) AS A SPECIFICALLY BARGAINED INDUCEMENT FOR BANK TO ENTER INTO THIS
AGREEMENT AND EXTEND CREDIT TO BORROWER, BORROWER AND BANK EACH WAIVES TRIAL BY
JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING IN RESPECT OF OR
ARISING OUT OF THIS AGREEMENT.
(F) The captions in this Agreement are for reference purposes only and
shall not relate to or affect in any way the construction or interpretation
hereof.
(G) The representations, warranties, covenants and agreements contained
herein or in any Schedule attached hereto shall survive the execution hereof.
<PAGE>
IN WITNESS WHEREOF, Borrower has caused this Agreement to be duly executed
and delivered by its officer thereunto duly authorized as of July 11, 1997.
KENCO/WILLIAMS, INC.
By:____________________________
Title:___________________________
STATE OF OREGON )
) SS:
COUNTY OF MULTNOMAH )
The foregoing Trademark Security Agreement was executed and acknowledged
before me on July 11, 1997, by ______________________, personally known to me to
be the _____________ of Kenco/Williams, Inc., a Delaware corporation, on behalf
of such corporation.
Notary Public
My Commission Expires:
Accepted as of July 11, 1997.
WELLS FARGO BANK, NATIONAL ASSOCIATION
By:
Vice President
<PAGE>
SCHEDULE I
TO
TRADEMARK SECURITY AGREEMENT
1. Trademark Registrations
Reg. No. 1,879,664
Reg. No. 1,755,176
Reg. No. 1,484,182
CONTINUING UNCONDITIONAL GUARANTY
OF
THOMAS W. ITIN
WHEREAS, WILLIAMS CONTROLS, INC. a Delaware corporation, AJAY SPORTS,
INC., a Delaware corporation, LEISURE LIFE, INC., a Tennessee corporation, PALM
SPRINGS GOLF, INC., a Colorado corporation, AJAY LEISURE PRODUCTS, INC., a
Delaware corporation, AGROTEC WILLIAMS, INC., a Delaware corporation, APTEK
WILLIAMS, INC., a Delaware corporation, GEOFOCUS, INC., a Florida corporation,
HARDEE WILLIAMS, INC., a Delaware corporation, KENCO/WILLIAMS, INC., a Delaware
corporation, NESC WILLIAMS, INC., a Delaware corporation, PREMIER PLASTIC
TECHNOLOGIES, INC., a Delaware corporation, WACCAMAW WHEEL WILLIAMS, INC., a
Delaware corporation, WILLIAMS CONTROLS INDUSTRIES, INC., a Delaware
corporation, WILLIAMS TECHNOLOGIES, INC., a Delaware corporation, WILLIAMS WORLD
TRADE, INC., a Delaware corporation, WILLIAMS AUTOMOTIVE, INC., a Delaware
corporation, TECHWOOD WILLIAMS, INC., a Delaware corporation, (each individually
referred to as "Borrower" and all collectively referred to as "Borrowers"), have
entered into that certain Credit Agreement, dated as of July 11, 1997 (as
amended, modified or supplemented from time to time, the "Credit Agreement")
with Wells Fargo Bank, National Association ("Bank") (capitalized terms used
herein shall have the respective meanings assigned to them in the Credit
Agreement); and
WHEREAS, Thomas W. Itin ("Guarantor") is a significant shareholder
of Williams Parent and Ajay Parent and will derive direct and indirect
economic benefit from the Loans and the Letters of Credit; and
WHEREAS, Bank requires that Guarantor execute and deliver this Guaranty
Agreement as a condition to Bank entering into the Credit Agreement; and
WHEREAS, all capitalized terms used herein and not defined herein shall
have the meaning attributed to them in the Credit Agreement;
NOW, THEREFORE, to induce Bank to enter into the Credit Agreement and make
Loans and issue Letters of Credit, Guarantor hereby agrees as follows:
SECTION 1. Guaranty. Guarantor hereby unconditionally and irrevocably
guarantees the full and prompt payment when due, whether at stated maturity, by
acceleration or otherwise, all Obligations, whether now or hereafter existing
and whether for principal, interest, fees, expenses or otherwise, and any and
all expenses (including, without limitation, reasonable attorneys' fees and
expenses, whether incurred at the trial or appellate level, in an arbitration
proceeding, in bankruptcy (including, without limitation, any adversary
proceeding, contested matter or motion) or otherwise) reasonably incurred by
Bank in enforcing any rights under this Guaranty Agreement. This guaranty is an
absolute guaranty of payment and not a guaranty of collection.
SECTION 2. Guaranty Absolute. Guarantor guaranties that the Obligations
will be paid strictly in accordance with the terms of the Loan Documents,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Bank with respect
thereto. The liability of Guarantor under this Guaranty Agreement shall be
absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of any provision of any
Loan Document or any other agreement or instrument relating to any Loan
Document, or avoidance or subordination of any of the Obligations;
(ii) any change in the time, manner or place of payment of, or in any
other term of, or any increase in the amount of, all of the Obligations,
or any other amendment or waiver of any term of, or any consent to
departure from any requirement of, any of the Loan Documents;
(iii) any exchange, release or non-perfection of any Lien on any
collateral for, or any release or amendment or waiver of any term of any
other guaranty of, or any consent to departure from any requirement of any
other guaranty of, all or any of the Obligations;
(iv) the absence of (A) any attempt to collect any of the Obligations
from Borrowers or from any other guarantor or (B) any other action to
enforce the same or the election of any remedy by Bank;
(v) any waiver, consent, extension, forbearance or granting
of any indulgence by Bank with respect to any provision of any Loan
Document;
(vi) the election by Bank in any proceeding under chapter 11 of Title
11 of the United States Code (the "Bankruptcy Code") of the application of
section 1111(b)(2) of the Bankruptcy Code;
(vii) any borrowing or grant of a security interest by
Borrower, as debtor-in-possession, under section 364 of the
Bankruptcy Code;
(viii) the disallowance, under section 502 of the Bankruptcy
Code, of all or any portion of the claims of Bank for payment of any
of the Obligations; or
(ix) any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a borrower or a guarantor.
SECTION 3. Waiver. (a) Guarantor hereby (i) waives (A) promptness,
diligence, notice of acceptance and any and all other notices with respect to
any of the Obligations or this Guaranty Agreement (other than demand for payment
hereunder by Bank), (B) any requirement that Bank protect, secure, perfect or
insure any security interest in or other Lien on any property subject thereto or
exhaust any right or take any action against Borrowers or any other Person or
any security for any of the Obligations, (C) the filing of any claim with a
court in the event of receivership or bankruptcy of Borrower, (D) protest or
notice with respect to nonpayment of all or any of the Obligations and (E) all
demands whatsoever (and any requirement that same be made on Borrower as a
condition precedent to Guarantor's obligations hereunder) other than demand for
payment hereunder by Bank; and (ii) covenants and agrees that this Guaranty
Agreement will not be discharged except by complete payment, in cash, of the
Obligations and all other obligations of Guarantor contained herein.
(b) If, in the good faith exercise of any of its rights and remedies, Bank
forfeits any of its rights or remedies, including, without limitation, its right
to enter a deficiency judgment against Borrower or any other Person, whether
because of any applicable law pertaining to "election of remedies" or the like,
Guarantor hereby consents to such action by Bank and waives any claim based upon
such action. Any election of remedies which results from such exercise of rights
and remedies in the denial or impairment of the right of Bank to seek a
deficiency judgment against Borrower shall not impair the obligation of
Guarantor to pay the full amount of the Obligations or any other obligation of
Guarantor contained herein.
(c) Guarantor agrees that notwithstanding the foregoing and without
limiting the generality of the foregoing, if, after the occurrence and during
the continuance of an Event of Default, Bank is prevented by applicable law from
exercising its rights to accelerate the maturity of the Obligations, to collect
interest on the Obligations, to enforce or exercise any other right or remedy
with respect to the Obligations, or to take action to realize on any security
for any of the Obligations, subject to the limitations set forth herein,
Guarantor agrees to pay to the Bank, upon demand therefor, the amount that would
otherwise have been due and payable from Borrowers had such rights and remedies
been permitted to be exercised by Bank.
(d) Guarantor hereby assumes responsibility for keeping himself informed
of the financial condition of Borrowers and of each other guarantor of all or
any part of the Obligations, and of all other circumstances bearing upon the
risk of nonpayment of the Obligations or any part thereof, that diligent inquiry
would reveal. Guarantor hereby agrees that Bank shall have no duty to advise
Guarantor of information known to Bank regarding such condition or any such
circumstance. If Bank in its sole discretion undertakes at any time or from time
to time to provide any such information to Guarantor, Bank shall be under no
obligation (i) to undertake any investigation, (ii) to disclose any information
which, pursuant to accepted or reasonable banking or commercial finance
practices, Bank wishes to maintain confidential, or (iii) to make any other or
future disclosures of such information or any other information to Guarantor.
(e) Guarantor consents and agrees that Bank shall be under no obligation
to marshal any assets in favor of Guarantor or otherwise in connection with
obtaining payment of any or all of the Obligations from any Person or source.
(f) Until all the Obligations and all obligations of Guarantor contained
herein have been fully paid, in cash, and performed, Guarantor shall have no
right of subrogation, and Guarantor waives any right to enforce any remedy which
Bank now has or may hereafter have against Borrower or any other Person, and
waives any benefit of, or any right to participate in, any security for any of
the Obligations now or hereafter held by Bank.
SECTION 4. Amendments, Etc. No amendment or waiver of any provision of
this Guaranty Agreement nor consent to any departure by Guarantor herefrom shall
in any event be effective unless the same shall be in writing and signed by
Bank, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 5. Notices. All notices, requests and demands which a party is
required or may desire to give to the other party under this Guaranty Agreement
must be in writing, addressed to Bank at its address or telecopy number set
forth in the Credit Agreement, and addressed to Guarantor at the following
address or telecopy number:
GUARANTOR: Thomas W. Itin
7001 Orchard Lane Road
Suite 424
West Bloomfield, MI 48322-3608
Telecopier: (248) 851-9080
or to such other address or telecopy number as either party may designate for
itself/himself by written notice to the other party. Each such notice, request
and demand shall be deemed given or made as follows: (a) five Business Days
following deposit in the United States mails with first class postage prepaid,
(b) the next Business Day after such notice was delivered to a regularly
scheduled overnight delivery carrier with delivery fees either prepaid or an
arrangement, satisfactory with such carrier, made for the payment of such fees,
or (c) upon receipt of notice given by telecopy, mailgram, telegram, telex or
personal delivery.
SECTION 6. No Waiver; Remedies. (a) No failure on the part of Bank to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law or any of the other Loan Documents.
(b) Failure by Bank at any time or times hereafter to require strict
performance by Borrower, Guarantor or any other Person of any of the provisions,
warranties, terms or conditions contained in any of the Loan Documents now or at
any time or times hereafter executed by Borrower, Guarantor or such other Person
and delivered to Bank shall not waive, affect or diminish any right of Bank at
any time or times hereafter to demand strict performance thereof, and such right
shall not be deemed to have been modified or waived by any course of conduct or
knowledge of Bank or of any officer or employee of Bank.
(c) No waiver by Bank of any default shall operate as a waiver of any
other default or the same default on a future occasion, and no action by Bank
permitted hereunder shall in any way affect or impair any of Bank's rights or
Guarantor's obligations under this Guaranty Agreement or under any of the Loan
Documents. Any determination by a court of competent jurisdiction of the amount
of any principal and/or interest or other amount constituting any of the
Obligations shall be conclusive and binding on Guarantor irrespective of whether
Guarantor was a party to the suit or action in which such determination was
made.
SECTION 7. Right of Set-off. Subject to the limitations set forth herein,
upon the occurrence and during the continuance of any Event of Default, Bank and
its affiliates are hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by Bank or any of its affiliates to or for
the credit or the account of Guarantor against any and all of the obligations of
Guarantor now or hereafter existing under this Guaranty Agreement, irrespective
of whether or not Bank or such affiliate shall have made any demand under this
Guaranty Agreement and although such obligations may be contingent and
unmatured. Bank agrees promptly to notify Guarantor after any such set-off and
application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of Bank under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which Bank may have.
SECTION 8. Continuing Guaranty Agreement; Transfer of Notes. The guaranty
set forth in Section 1 is a continuing guaranty and shall (a) remain in full
force and effect until indefeasible payment in full, in cash, of the Obligations
and all other amounts payable hereunder, (b) be binding upon Guarantor, his
heirs, successors and assigns, and (c) inure to the benefit of and be
enforceable by Bank and its successors, transferees, and assigns. Without
limiting the generality of the foregoing clause (c), Bank may assign or
otherwise transfer any Note held by it or Obligation owing to it to any other
Person, and such other Person shall thereupon become vested with all the rights
in respect thereof granted to Bank herein or otherwise with respect to such of
the Notes and Obligations so transferred or assigned.
SECTION 9. Limitation of Guaranty Agreement. Anything to the contrary in
this Guaranty Agreement notwithstanding, the maximum liability hereunder of
Guarantor shall not at any time exceed $1,000,000 plus any and all expenses
(including, without limitation, reasonable attorneys' fees and expenses, whether
incurred at the trial or appellate level, in an arbitration proceeding, in
bankruptcy (including, without limitation, any adversary proceeding, contested
matter or motion) or otherwise) reasonably incurred by Bank in enforcing any
rights under this Guaranty Agreement. So long as no Event of Default exists or
is continuing, Guarantor shall be released from any and all liability hereunder
upon the first to occur of (i) the repayment in full of Term Loan II and of all
interest and fees associated therewith or (ii) consummation of the sale or
liquidation of Kenco Williams, Inc. on terms and conditions satisfactory to
Bank.
SECTION 10. Reinstatement. This Guaranty Agreement shall remain in full
force and effect and continue to be effective should any petition be filed by or
against Borrower for liquidation or reorganization, should Borrower become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of Borrower's
assets, and shall, to the fullest extent permitted by law, continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Obligations, or any part thereof, is, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or returned
by any obligee of the Obligations or such part thereof, whether as a "voidable
preference," "fraudulent transfer," or otherwise, all as though such payment or
performance has not been made. If any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Obligations shall, to the fullest
extent permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
SECTION 11. Governing Law. This Guaranty Agreement shall be
governed by and construed in accordance with the laws of the State of
Oregon.
SECTION 12. Submission to Jurisdiction. GUARANTOR HEREBY: (A) SUBMITS TO
THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF OREGON AND THE FEDERAL
COURTS OF THE UNITED STATES SITTING IN THE STATE OF OREGON FOR THE PURPOSE OF
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS; (B) AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH COURTS; (C) IRREVOCABLY WAIVES
(TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW) ANY OBJECTION WHICH IT NOW OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING
BROUGHT IN ANY OF THE FOREGOING COURTS, AND ANY OBJECTION ON THE GROUND THAT ANY
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM; AND (D) 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 PERMITTED BY LAW.
SECTION 13. Arbitration.
(a) Arbitration. Upon the demand of any party, any Dispute shall be
resolved by binding arbitration (except as set forth in (e) below) in accordance
with the terms of this Guaranty Agreement. A "Dispute" shall mean any action,
dispute, claim or controversy of any kind, whether in contract or tort,
statutory or common law, legal or equitable, now existing or hereafter arising
under or in connection with, or in any way pertaining to, this Guaranty
Agreement, any of the Loan Documents, or any past, present or future extensions
of credit and other activities, transactions or obligations of any kind related
directly or indirectly to any of the Loan Documents, including without
limitation, any of the foregoing arising in connection with the exercise of any
self help, ancillary or other remedies pursuant to this Guaranty Agreement or
any of the Loan Documents. Any party may by summary proceedings bring an action
in court to compel arbitration of a Dispute. Any party who fails or refuses to
submit to arbitration following a lawful demand by any other party shall bear
all costs and expenses incurred by such other party in compelling arbitration of
any Dispute.
(b) Governing Rules. Arbitration proceedings shall be administered by the
American Arbitration Association ("AAA") or such other administrator as the
parties shall mutually agree upon in accordance with the AAA Commercial
Arbitration Rules. All Disputes shall submitted to arbitration shall be resolved
in accordance with the Federal Arbitration Act (Title 9 of the United States
Code), notwithstanding any conflicting choice of law provision in this Guaranty
Agreement or any of the Loan Documents. The arbitration shall be conducted at a
location in Oregon selected by the AAA or other administrator. If there is any
inconsistency between the terms hereof and any such rules, the terms and
procedures set forth herein shall control. All statutes of limitation applicable
to any Dispute shall apply to any arbitration proceeding. All discovery
activities shall be expressly limited to matters directly relevant to the
Dispute being arbitrated. Judgment upon any award rendered in an arbitration may
be entered in any court having jurisdiction; provided, however, that nothing
contained herein shall be deemed to be a waiver by any party that is a bank of
the protections afforded to it under 12 U.S.C. ss.91 or any similar applicable
state law.
(c) No Waiver; Provisional Remedies; Self-Help and Foreclosure. No
provision hereof shall limit the right of any party to exercise self-help
remedies such as setoff, foreclosure against or sale of any real or personal
property collateral or security, or to obtain provisional or ancillary remedies,
including without limitation injunctive relief, sequestration, attachment,
garnishment or the appointment of a receiver, from a court of competent
jurisdiction before, after or during the pendency of any arbitration or other
proceeding. The exercise of any such remedy shall not waive the right of any
party to compel arbitration hereunder.
(d) Arbitrator Qualifications and Powers; Awards. Arbitrators must be
active members of the Oregon State Bar or retired judges of the state or federal
judiciary of Oregon, with expertise in the substantive laws applicable to the
subject matter of the Dispute. Arbitrators are empowered to resolve Disputes by
summary rulings in response to motions filed prior to the final arbitration
hearing. Arbitrators (i) shall resolve all Disputes in accordance with the
substantive law of the state of Oregon, (ii) may grant any remedy or relief that
a court of the state of Oregon could order or grant within the scope hereof and
such ancillary relief as is necessary to make effective any award, and (iii)
shall have the power to award recovery of all costs and fees, to impose
sanctions and to take such other actions as they deem necessary to the same
extent a judge could pursuant to the Federal Rules of Civil Procedure, the
Oregon Rules of Civil Procedure or other applicable law. Any Dispute in which
the amount in controversy is $5,000,000 or less shall be decided by a single
arbitrator who shall not render an award of greater than $5,000,000 (including
damages, costs, fees and expenses). By submission to a single arbitrator not
affiliated with any party, each party expressly waives any right or claim to
recover more than $5,000,000. Any Dispute in which the amount in controversy
exceeds $5,000,000 shall be decided by majority vote of a panel of three
arbitrators not affiliated with any party.
(e) Judicial Review. Notwithstanding anything herein to the contrary, in
any arbitration in which the amount in controversy exceeds $25,000,000, the
arbitrators shall be required to make specific, written findings of fact and
conclusions of law. In such arbitrations (i) the arbitrators shall not have the
power to make any award which is not supported by substantial evidence or which
is based on legal error, (ii) an award shall not be binding upon the parties
unless the findings of fact are supported by substantial evidence and the
conclusions of law are not erroneous under the substantive law of the state of
Oregon, and (iii) the parties shall have in addition to the grounds referred to
in the Federal Arbitration Act for vacating, modifying or correcting an award
the right to judicial review of (A) whether the findings of fact rendered by the
arbitrators are supported by substantial evidence, and (B) whether the
conclusions of law are erroneous under the substantive law of the state of
Oregon. Judgment confirming an award in such a proceeding may be entered only if
a court determines the award is supported by substantial evidence and not based
on legal error under the substantive law of the state of Oregon.
(f) Miscellaneous. To the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the Dispute with the
AAA. No arbitrator or other party to an arbitration proceeding may disclose the
existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business, by applicable law or
regulation, or to the extent necessary to exercise any judicial review rights
set forth herein. If more than one agreement for arbitration by or between the
parties potentially applies to a Dispute, the arbitration provision most
directly related to this Guaranty Agreement or the subject matter of the Dispute
shall control. This arbitration provision shall survive termination, amendment
or expiration of any of the Loan Documents or any relationship between the
parties.
SECTION 14. Miscellaneous. All references herein to Borrower or to
Guarantor shall include their respective successors and assigns, including,
without limitation, a receiver, trustee or debtor-in-possession of or for
Borrower or Guarantor. All references to the singular shall be deemed to include
the plural where the context so requires.
SECTION 15. Oregon Statutory Notice.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY LENDER
AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT
FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWERS'
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY THE LENDER
TO BE ENFORCEABLE.
IN WITNESS WHEREOF, Guarantor has signed this Guaranty Agreement as
of July 11, 1997
Thomas W. Itin
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT is entered into as of June ____, 1997 by and
among UNITED STATES NATIONAL BANK OF OREGON ("US"), WELLS FARGO BANK, NATIONAL
ASSOCIATION ("WF") and the following corporations (each individually referred to
as a "Borrower" and all collectively referred to as "Borrowers"): WILLIAMS
CONTROLS, INC. a Delaware corporation, AJAY SPORTS, INC., a Delaware
corporation, LEISURE LIFE, INC., a Tennessee corporation, PALM SPRINGS GOLF,
INC., a Colorado corporation, AJAY LEISURE PRODUCTS, INC., a Delaware
corporation, AGROTEC WILLIAMS, INC., a Delaware corporation, APTEK WILLIAMS,
INC., a Delaware corporation, GEOFOCUS, INC., a Florida corporation, HARDEE
WILLIAMS, INC., a Delaware corporation, KENCO/WILLIAMS, INC., a Delaware
corporation, NESC WILLIAMS, INC., a Delaware corporation, PREMIER PLASTIC
TECHNOLOGIES, INC., a Delaware corporation, WACCAMAW WHEEL WILLIAMS, INC., a
Delaware corporation, WILLIAMS CONTROLS INDUSTRIES, INC., a Delaware
corporation, WILLIAMS TECHNOLOGIES, INC., a Delaware corporation, WILLIAMS WORLD
TRADE, INC., a Delaware corporation, WILLIAMS AUTOMOTIVE, INC., a Delaware
corporation, TECHWOOD WILLIAMS, INC., a Delaware corporation.
RECITALS
US has advanced certain credit to Borrowers secured by substantially all
of Borrowers' personal property. WF is prepared to advance credit to Borrowers,
some of the proceeds of which will repay Borrowers' existing obligations to US,
except for the Junior Debt which will remain as an obligation of Ajay Sports,
Inc. [guaranteed by _______________________ and secured by the Kenco Assets].
[Except for a security interest in the Kenco Assets,] US will have no security
interest or other interest in the assets of any Borrower.
NOW, THEREFORE, in consideration of the mutual covenants and promises of
the parties contained herein, US, WF and Borrowers hereby agree as follows:
Section 1. Definitions.
The following terms shall have the meanings set forth below (with all such
meanings to be equally applicable to both the singular and plural forms of the
terms defined):
"Credit Agreement" means the Credit Agreement of even date herewith among
WF and Borrowers, as such Agreement may be amended or otherwise modified from
time to time.
"Default" means an "Event of Default" (as defined in the Credit Agreement)
or an event or condition which with the giving of notice or the passage of time,
or both, would constitute an Event of Default.
"Investment Account" means any account maintained by US with respect to
any investment property owned by any Borrower.
"Junior Debt" means the obligations of Ajay Sports, Inc. evidenced
by the Promissory Note attached hereto as Exhibit A [and the obligations
of all Borrowers with respect to the repayment of such indebtedness].
"Kenco Assets" means all of the assets of Kenco/Williams, Inc., a
Delaware corporation.
"Lock Box Accounts" means all accounts maintained by US into which
remittances payable to a Borrower, collections of any account receivable of a
Borrower or other payments due to a Borrower are deposited, including, without
limitation, Account Nos. _____________________ and
- ---------------------.
"Senior Debt" means all of the payment obligations of Borrowers to WF
pursuant to the Credit Agreement and any refinancing or replacement financing of
any of such obligations.
"US" means United States National Bank of Oregon and any other holder of
all or any part of the Junior Debt.
"WF" means Wells Fargo Bank, National Association and any other holder of
all or any part of the Senior Debt.
"WF Revolver" means that portion of any revolving loans included in the
Senior Debt based on the Kenco Assets.
"WF Term Loan" means that portion of any term loan included in the Senior
Debt based on the Kenco Assets.
"WF Term Loan II" means the $1,000,000 term loan defined in the Credit
Agreement as "Term Loan II."
Section 2. Priority of Interests.
2.1 US hereby represents to WF that it has no security interest or
mortgage interest in any of Borrowers' assets, except for its security interest
in the Kenco Assets. US hereby subordinates any interest it has in the assets of
any of the Borrowers to the interest therein of WF.
2.2 Until the Senior Debt is paid in full in cash, US shall not exercise
any of its enforcement or other rights with respect to the Kenco Assets, except
for the filing of such continuation statements as may be necessary in US's
judgment to continue UCC financing statements existing as of the date hereof
perfecting US's interest in the Kenco Assets.
2.3 Upon the prior consent of WF, Borrowers may sell or otherwise dispose
of all or any part of the Kenco Assets free and clear of the interests therein
of US and WF at any time or times until the Senior Debt is paid in full in cash.
Section 3. Repayment of Junior Debt.
3.1 Except as otherwise provided herein, (a) US shall not ask for, demand,
sue for, take or receive, and no Borrower shall make, any payment on account of
the Junior Debt, including, without limitation, any payment by way of setoff and
(b) any money or other property received by US for application on the Junior
Debt before the Senior Debt is paid in full in cash will be held by US in trust
for WF and promptly upon receipt delivered by US to WF.
3.2 So long as no Default is continuing, [describe regular interest and/or
principal payments US permitted to receive on Junior Debt].
3.3 Upon the sale or other disposition of any of the Kenco Assets, the
proceeds thereof will be applied as follows:
(i) first, to the repayment in full of the WF Term Loan;
(ii) second, to the repayment in full of the WF Revolver;
(iii) third, to the repayment in full of the WF Term Loan II;
and
(iv) finally, to the repayment in full of the Junior Debt.
3.4 Upon any distribution of the assets or readjustment of the
indebtedness of any Borrower, whether by reason of liquidation, composition,
bankruptcy, arrangement, receivership, assignment for the benefit of creditors
or any other action or proceeding involving the readjustment of all or any of
the Junior Debt, or the application of the assets of any Borrower to the payment
or liquidation of any of the Junior Debt, WF shall be entitled to receive
payment in full in cash of the Senior Debt prior to the payment of any of the
Junior Debt. Accordingly, any payment or distribution of assets of one or more
Borrowers of any kind or character, whether in cash, property or securities,
which would otherwise have been made to US but for the provisions of this
Section 3.4, shall instead be made by Borrower or Borrowers or by the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
person making payment or distribution of assets of such Borrower or Borrowers,
directly to WF for application to the payment of all Senior Debt remaining
unpaid to the extent necessary to pay all Senior Debt in full in cash after
giving effect to any concurrent payment or distribution to or for the benefit of
WF. If, notwithstanding the foregoing, US receives any payment or distribution
of assets of one or more Borrowers, before all amounts due or to become due on
or in respect of all Senior Debt has been paid in full in cash, then such
payment or distribution shall be received in trust for WF and shall be promptly
paid over or delivered by US to WF for application to the payment of all Senior
Debt remaining unpaid.
Section 4. Rights in Furtherance of Subordination.
4.1 US and each holder of the Junior Debt by its acceptance thereof agrees
not to sell, assign or transfer all or any part of the Junior Debt while any
Senior Debt remains unpaid unless such sale, assignment or transfer is made
expressly subject to the terms of this Intercreditor Agreement. US represents
that no other subordination of the Junior Debt is in existence on the date
hereof and agrees that the Junior Debt will not be subordinated to any
indebtedness owed to any person other than WF.
4.2 US and each other holder of the Junior Debt by its acceptance thereof
consents and agrees that all Senior Debt shall be deemed to have been made or
incurred in reliance upon the subordination of the Junior Debt pursuant to this
Intercreditor Agreement.
4.3 Until the Senior Debt has been paid in full in cash, US will not (i)
commence any action or proceeding against any Borrower to recover all or any
part of the Junior Debt unless WF has commenced such an action against such
Borrower or (ii) join with any creditor in bringing any proceeding against any
Borrower under Title 11 of the United States Code or any other state or federal
insolvency statute unless WF has joined in bringing such a proceeding.
4.4 Subject to the payment in full in cash of all Senior Debt, US shall be
subrogated, to the extent of the payments or distributions made to WF pursuant
to the provisions of this Agreement, to the rights of WF to receive payments and
distributions of property applicable to the Senior Debt until the principal of
and interest on the Junior Debt is paid in full. For purposes of such
subrogation, no payment or distribution to WF of cash or property which US would
be entitled to receive but for the provisions of this Agreement, shall, as among
the Borrowers, their creditors (other than WF) and US, be deemed to be a payment
or distribution by any Borrower to or on account of the Senior Debt.
4.5 US may file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have its claims allowed in any judicial
proceeding relative to any Borrower, its creditors or its property. If US has
not filed a proof of claim or other necessary claim in such proceeding within
ten business days before the deadline for filing such a claim, WF may file such
a claim on behalf of US. Until the Senior Debt has been paid in full in cash, US
will not discharge all or any portion of the obligations of the Borrowers in
respect of the Junior Debt, whether by forgiveness, receipt of capital stock or
otherwise, without the prior written consent of WF.
4.6 WF shall be deemed to be the "holder" of all claims in respect of the
Junior Debt in any proceeding of the type described in Section 3.4 (each a
"bankruptcy proceeding"). To the extent not deemed to be "not in good faith"
within the meaning of 11 U.S.C. ss.1126(e), US agrees to vote to accept a plan
of reorganization or dissolution in respect of one or more Borrowers which WF
has accepted or has notified US of its intent to accept. If such acceptance by
US would not be in good faith pursuant to 11 U.S.C. ss.1126(e), US agrees not to
vote against a plan of reorganization or dissolution which WF has accepted or
has notified US of its intent to accept. The foregoing shall be enforceable by
WF against US regardless of whether such plan allows a class subordinated to the
claims of the Junior Debt to retain an interest in one or more Borrowers or
whether US will receive or retain under such plan on account of its claims in
respect of the Junior Debt property having value less than the amount that US
would receive or retain if the bankruptcy proceeding were under Chapter 7 of the
Bankruptcy Code.
Section 5. Lock Boxes. On each business day, US shall transfer to WF by
wire transfer in accordance with WF's wire instructions amount equal to the
ledger balance in the Lock Box Accounts. The Lock Box Accounts will not be
subject to deduction, setoff, banker's lien or any other similar right. All
service charges and other expenses for the establishment and maintenance of the
Lock Box Accounts and for US's services in connection therewith shall be charged
by US directly to
- -----------------------.
Section 6. Indemnification. WF shall indemnify and hold US harmless from
and against and will promptly reimburse US for any liability, loss or expense
arising out of the dishonor of, or failure of US to collect, any check or other
instrument delivered to US constituting part of the collections credited by US
to Borrowers' accounts in connection with the payoff of Borrowers' obligations
(other than the Junior Debt) contemporaneously with the execution by Borrowers
of the Credit Agreement and with respect to any check or other instrument
deposited into the Lock Box Accounts and constituting any part of the amounts
wire transferred to WF pursuant to Section 5 above, provided US gives WF notice
of each such event within 30 days after the occurrence thereof.
Section 7. Investment Account. From time to time, Borrowers deposit funds
with US in the Investment Account. Borrower has granted WF a security interest
in all of Borrowers' investment property, including, without limitation, all
amounts deposited in the Investment Account. In order to perfect WF's interest
in the Investment Account, US hereby agrees that it will comply with all orders
and directions given to it by WF with respect to the Investment Account without
further consent by any Borrower.
Section 8. Continuing Subordination. This is a continuing agreement of
subordination and WF may continue, without notice to US, to extend credit or
other accommodations or benefit and lend monies to or for the account of any one
or more of the Borrowers on the faith hereof, and may at any time, in WF's sole
discretion, renew or extend the time of payment of all or any existing or future
obligations of Borrower to US or waive or release any collateral which may be
held therefor at any time without in any manner being deemed to have impaired or
affected WF's rights and US's obligations hereunder. US waives notice of
acceptance by WF of the subordination and other provisions of this Agreement and
reliance by WF upon the subordination and other agreements set forth herein.
Section 9. Miscellaneous.
9.1 All notices, requests and demands which any party is required or may
desire to give to any other party under any provision of this Agreement must be
in writing delivered to each party at the following address:
BORROWERS: Williams Controls, Inc.
14100 SW 72nd Avenue
Portland, OR 97224
Attn: Thomas W. Itin, Chairman
Telecopy No.: (248) 851-9080
US: United States National Bank of Oregon
111 S.W. Fifth Avenue
Portland, OR 97204
Attn: ____________________________
Telecopy No.: ____________________
WF: Wells Fargo Bank, National Association
Commercial Finance Division
245 S. Los Robles Ave., Ste. 600
Pasadena, CA 91101
Attn: Angelo Samperisi
Telecopy No.: (626) 884-9063
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three days after deposit in the
U.S. mail, first class and postage prepaid; and (c) if sent by telecopy, upon
receipt and the sender will endeavor to send a hard copy of such telecopied
notice to the recipient by mail.
9.2 No delay, failure or discontinuance of US or WF in exercising any
right, power or remedy hereunder shall affect or operate as a waiver of such
right, power or remedy, nor shall any single or partial exercise of any such
right, power or remedy preclude, waive or otherwise affect any other further
exercise thereof or the exercise of any other right, power or remedy. Any
waiver, permit, consent or approval of any kind by either US or WF of any breach
of or default under any provision hereof must be in writing and shall be
effective only to the extent set forth in such writing.
9.3 Any provision of this Agreement may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed by the party against
whom enforcement is sought.
9.4 Except as provided in Section 3, the provisions of this Agreement are
intended solely for the purpose of defining the relative rights of US on the one
hand and WF on the other. It is the intent of the parties that this Agreement
shall constitute a present assignment by US of its rights to receive payments or
distributions of cash and other property of one or more Borrowers otherwise
payable to US in the circumstances described in Section 3 hereof. Nothing
contained in this Agreement except as set forth in Section 3 shall (i) impair or
affect, as among the Borrowers, their creditors (other than WF) and US, the
obligation of Ajay Sports, Inc., which is absolute and unconditional, to pay to
US the principal of and interest on the Junior Debt as such amounts become due
and payable in accordance with its terms or (ii) affect the relative rights
against the Borrowers of US and the creditors of the Borrowers (other than WF).
9.5 The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
9.6 This Agreement shall be governed by and construed in accordance with
the laws of the State of Oregon.
9.7 If legal action is required to enforce the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorneys' fees and costs
incurred therein, whether incurred at arbitration, at trial, on appeal, in a
bankruptcy proceeding or otherwise.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
WELLS FARGO BANK, NATIONAL UNITED STATES NATIONAL BANK OF OREGON
ASSOCIATION
By:
By:
Title:
Title:
WILLIAMS CONTROLS, INC. AJAY SPORTS, INC.
By: By:
Title: Title:
LEISURE LIFE, INC. PALM SPRINGS GOLF, INC.
By: By:
Title: Title:
AJAY LEISURE PRODUCTS, INC. AGROTEC WILLIAMS, INC.
By: By:
Title: Title:
APTEK WILLIAMS, INC. GEOFOCUS, INC.
By: By:
Title: Title:
HARDEE WILLIAMS, INC. KENCO/WILLIAMS, INC.
By: By:
Title: Title:
NESC WILLIAMS, INC. PREMIER PLASTIC TECHNOLOGIES, INC.
By: By:
Title: Title:
WACCAMAW WHEEL WILLIAMS, INC. WILLIAMS CONTROLS INDUSTRIES, INC.
By: By:
Title: Title:
<PAGE>
WILLIAMS TECHNOLOGIES, INC. WILLIAMS WORLD TRADE, INC.
By: By:
Title: Title:
WILLIAMS AUTOMOTIVE, INC. TECHWOOD WILLIAMS, INC.
By: By:
Title: Title:
CONSENT, REAFFIRMATION, AND RELEASE AGREEMENT
This Consent, Reaffirmation, and Release Agreement (the "Agreement")
is entered into this 14th day of July, 1997, between and among United States
National Bank of Oregon ("U. S. Bank"), Agrotec Williams, Inc., Aptek Williams,
Inc., Hardee Williams, Inc., Kenco Williams, Inc., NESC Williams, Inc., Premier
Plastic Technologies, Inc., Techwood Williams, Inc., Waccamaw Wheel Williams,
Inc., Williams Automotive, Inc., Williams Controls, Inc., Williams Controls
Industries, Inc., Williams Technologies, Inc., Williams World Trade, Inc., Ajay
Sports, Inc., Ajay Leisure Products, Inc., Ajay Leisure de Mexico C.V. de S.A.,
Leisure Life, Inc., Palm Springs Golf, Inc., and Thomas W. Itin.
RECITALS
A. U. S. Bank, First Security Bank of Idaho, N.A., and SunTrust
Bank, South Florida, National Association (the "Banks") extend an operating
credit facility to Williams Controls, Inc. ("Williams"), pursuant to the terms
of a revolving loan agreement dated as of July 25, 1995 (as such loan agreement
has been amended by the first amendment thereto dated as of June 30, 1996)
(collectively, the "Williams Loan Agreement"). Williams executed a security
agreement granting the Banks liens and security interests in all or
substantially all of Williams' personal property to secure Williams' obligations
to the Banks pursuant to the Williams Loan Agreement.
B. Agrotec Williams, Inc., Aptek Williams, Inc., Hardee Williams,
Inc., Kenco Williams, Inc., NESC Williams, Inc., Premier Plastic Technologies,
Inc., Techwood Williams, Inc., Waccamaw Wheel Williams, Inc., Williams
Automotive, Inc., Williams Controls Industries, Inc., Williams Technologies,
Inc., and Williams World Trade, Inc. (collectively, the "Williams Guarantors")
executed guaranty agreements whereby they guaranteed the payment of Williams'
obligations to the Banks in respect of the credit facility extended pursuant to
the Williams Loan Agreement. In addition, the Williams Guarantors executed
security agreements granting the Banks liens and security interests in all or
substantially all of the Williams Guarantors' personal property to secure the
obligations of the Williams Guarantors and Williams to the Banks.
C. U. S. Bank extends an operating credit facility and a bulge
loan facility to Ajay Sports, Inc. ("Ajay"), pursuant to the terms of a
revolving loan agreement dated as of July 25, 1995 (as such loan agreement
has been amended by the first amendment thereto dated October 2, 1995, and
the second amendment thereto dated as of February 11, 1997) (collectively,
the "Ajay Loan Agreement"). Ajay executed a security agreement (and an
amendment thereto) granting U. S. Bank liens and security interests in all or
substantially all of Ajay's personal property to secure Ajay's obligations to
U. S. Bank pursuant to the Ajay Loan Agreement.
<PAGE>
D. Ajay Leisure Products, Inc., Ajay Leisure de Mexico C.V. de
S.A., Leisure Life, Inc., Palm Springs Golf, Inc. (collectively, the "Ajay
Guarantors"), and Williams have executed guaranty agreements whereby they
guaranteed the payment of Ajay3s obligations to U. S. Bank in respect of the
credit facilities extended pursuant to the Ajay Loan Agreement. In addition,
the Ajay Guarantors and Williams executed security agreements (and amendments
thereto) granting U. S. Bank liens and security interests in all or
substantially all of the Ajay Guarantors' and Williams' personal property to
secure their obligations under their guaranties and to secure Ajay's
obligations to U. S. Bank.
E. The security agreements executed by Williams, Ajay, the Williams
Guarantors, and the Ajay Guarantors in favor of U. S. Bank (and all amendments
and modifications thereof) are referred to in this Agreement collectively as the
"Security Agreements." The personal property of Williams, Ajay, the Williams
Guarantors, and the Ajay Guarantors in which U. S. Bank has been granted liens
and security interests pursuant to the Security Agreements is referred to in
this Agreement collectively as the "Collateral."
F. The guaranties executed by Williams, the Williams
guarantors, and the Ajay Guarantors in favor of U. S. Bank (and all
amendments and modifications thereof) are referred to in this Agreement as
the "Guaranties." The Guaranties, the Security Agreements, and the Aptek
Mortgage (as that term is defined in paragraph 1.2(c) below) are referred to
collectively in this Agreement as the "Collateral Documents."
G. The total amount owed by Williams pursuant to the Williams Loan
Agreement and the promissory note executed in connection therewith is referred
to below as the "Williams Obligation." The total amount owed by Ajay pursuant to
the Ajay Loan Agreement and the two promissory notes executed in connection
therewith is referred to below as the "Ajay Obligation." The Williams Obligation
and the Ajay Obligation are referred to collectively in this Agreement as the
"Obligations." The Obligations include $76,810.50 for legal fees and costs
incurred by U.S. Bank, $52,500 in respect of a loan fee owed by Williams to U.
S. Bank, and $20,999.98 for appraisals and other out-of-pocket expenses incurred
by U. S. Bank in connection with its banking relationship with Williams and
Ajay.
H. As of July 14, 1997, Williams owed U. S. Bank the principal
amount of $16,895,372.81 and accrued interest of $144,251.64.
I. As of July 14, 1997, Ajay owed U. S. Bank the principal
amount of
$7,301,716.66 and accrued interest of $33,139.12 in respect of the operating
credit facility extended by U. S. Bank to Ajay. In addition, as of that
date, Ajay owes U. S. Bank the principal amount of $4,750,000 and accrued
interest of $21,243.05 in respect of the bulge loan extended by U. S. Bank to
Ajay.
J. The credit facilities extended by U. S. Bank pursuant to
the Williams Loan Agreement and this Ajay Loan Agreement expire on July 14,
1997. At that time, the Obligations become due and payable in full.
K. Williams and Ajay have negotiated a new financing arrangement
with Wells Fargo Bank, National Association ("WFB"). However, the amount that
WFB is willing to lend to Williams and Ajay thereunder would not result in
payment in full of the Obligations.
L. Williams and Ajay have requested U. S. Bank to agree to the
proposed refinancing transaction among Williams, Ajay, and WFB and to accept a
promissory note from Ajay with respect to the $2,340,000 difference between the
amount of the Obligations and the refinancing proceeds (which difference is
referred to below as the "Residual Debt"). U. S. Bank is willing to do so,
subject to the terms and conditions of this Agreement.
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties to this Agreement
agree as follows:
AGREEMENT
<PAGE>
SECTION I
The Residual Debt
I.1 Agreement to Residual Debt. U. S. Bank hereby agrees that if it
receives collected funds in the amount of $26,956,033.76 (the "Payment") on or
before July 14, 1997, from Williams and Ajay with respect to the Obligations,
Williams and Ajay deposit with U. S. Bank cash in the amount of $65,000 (which
deposit is to ensure and secure the payment of two letters of credit in the
amounts of $36,925.24 and $26,500 issued by U. S. Bank on behalf of Williams
and/or Ajay) on or before July 14, 1997, and the conditions precedent specified
in paragraph 1.2 below have been satisfied by that date, U. S. Bank will agree
to accept payment of the Residual Debt pursuant to the terms and conditions of
this Agreement and the Note (as that term is defined below).
I.2 Conditions Precedent. This Agreement shall be effective
only if on or before July 11, 1997, U. S. Bank receives the following (which
in the case of the documents and instruments described in items (a) through
(e) below must be fully and duly executed):
(a) This Agreement;
(b) A promissory note from Ajay in the amount of
$2,340,000 in the form of attached Exhibit 1 (the "Note");
(c) A mortgage with respect to Aptek Williams, Inc.3s
real property in Broward County, Florida (the "Florida
Property"), in a form acceptable to U. S. Bank (the "Aptek
Mortgage");
(d) A guaranty from Mr. Itin in the form of attached
Exhibit 2;
(e) An intercreditor agreement among Williams, Ajay, the
Williams Guarantors, the Ajay Guarantors (collectively, the
"Obligors"), Mr. Itin, U. S. Bank, and WFB in a form acceptable
to U. S. Bank (the "Intercreditor Agreement");
(f) A copy of the fully executed loan agreement among WFB and the
Obligors, the terms of which must be consistent with the terms of the
Intercreditor Agreement;
(g) Assurances satisfactory to U. S. Bank that the Obligors have
made arrangements for payment of the documentary stamp taxes, intangible
personal property taxes, recording costs, and title insurance premium that
will be owing at the time of recording the Aptek Mortgage.
At the time this Agreement becomes effective, it will supersede the Williams
Loan Agreement and the Ajay Loan Agreement as the document governing the credit
facilities U. S. Bank extends to Williams and Ajay. The Williams Loan Agreement
and the Ajay Loan Agreement shall remain in full force and effect until such
time, if any, that all of the above-described conditions precedent have been
satisfied.
I.3 Subordination of Lien Position. WFB's agreement to enter into
the above-described refinancing transaction is conditioned upon its obtaining
first priority liens and security interests in the personal property of the
Obligors (other than the Stock, as that term is defined below) and the Florida
Property. Upon receipt of the Payment and timely satisfaction of the conditions
precedent specified in paragraph 1.2 of this Agreement, U. S. Bank agrees to
subordinate its security interests and liens in the Collateral (other than the
Stock) to WFB's liens and security interests therein.
Section II
Continuing Validity of Guaranties and Security Agreements
II.1 Consent of Guarantors. The Williams Guarantors, Williams, and
the Ajay Guarantors, and Mr. Itin hereby acknowledge that they are familiar with
the terms of the Note, and consent to those terms and to Ajay executing that
note.
II.2 Reaffirmation of Existing Guaranties (Williams Guarantors). The
Williams Guarantors hereby reaffirm their guaranties of all obligations and
indebtedness of Williams to U. S. Bank (including Williams' obligations in
respect of its guaranty of Ajay's obligations to U. S. Bank pursuant to the
Note), and hereby reaffirm and ratify the terms and conditions of their
guaranties. In that regard, the Williams Guarantors acknowledge and agree that
they are obligated to immediately pay U. S. Bank all amounts owed by Ajay with
respect to the Obligations, including all amounts owed under the Note, if Ajay
and Williams fail to do so, and that U. S. Bank has no obligation to proceed
first against Ajay, or the Collateral, to recover the amount owed. The Williams
Guarantors hereby waive their right to revoke their guaranties until the Note is
paid in full.
II.3 Reaffirmation of Existing Guaranties (Ajay Guarantors and
Williams). The Ajay Guarantors and Williams hereby reaffirm their guaranties of
all obligations and indebtedness of Ajay to U. S. Bank (including Ajay's
obligations to U. S. Bank pursuant to the Note), and hereby reaffirm and ratify
the terms and conditions of their guaranties. In that regard, the Ajay
Guarantors and Williams acknowledge and agree that they are obligated to
immediately pay U. S. Bank all amounts owed by Ajay with respect to the Note if
Ajay fails to do so, and that U. S. Bank has no obligation to proceed first
against Ajay, or the Collateral, to recover the amount owed. The Ajay Guarantors
and Williams hereby waive their right to revoke their guaranties until the Note
is paid in full.
II.4 Acknowledgment and Reaffirmation of Security Agreements. The
Obligors hereby reaffirm their obligations under the Security Agreements, and
hereby reaffirm and ratify the terms and conditions of the Security Agreements.
The Obligors acknowledge and agree that the security interests in the Collateral
granted in the Security Agreements secure payment of the Obligations, including
those evidenced by the Note, and any and all modifications, renewals, and
extensions of the Note (or substitutions or replacements thereof), whether or
not evidenced by new or additional instruments.
II.5 Financing Statements and Other Documents. Until the Note
has been repaid in full, the Obligors will:
(a) Join with U. S. Bank in executing such financing
statements (including amendments thereto and continuation
statements thereof), amendments to the Aptek Mortgage, and other
documents in form satisfactory to U. S. Bank as U. S. Bank may
specify, in order to perfect, or continue the perfection of, the
rights in the Collateral granted in the Security Agreements and
U. S. Bank's rights in the Florida Property granted in the Aptek
Mortgage;
(b) Pay, or reimburse U. S. Bank for paying, all costs,
expenses, and taxes of filing or recording the same in such
public offices as U. S. Bank may designate; and
(c) Take such other steps as U. S. Bank may direct to
perfect (or continue the perfection of) U. S. Bank's interest in
the Collateral and the Florida Property.
II.6 U. S. Bank's Lien in the Stock. Pursuant to the Security
Agreements the Obligors granted U. S. Bank a security interest in all existing
and subsequently issued securities, stock, and other investment property of the
Obligors (the "Stock"). Williams intends to issue approximately 400,000 shares
of its stock and transfer those shares to Ajay (which shares, when issued shall
constitute part of the Stock and the Collateral). Ajay hereby agrees that, upon
the issuance of such shares and the transfer of the shares to Ajay, Ajay will
take such steps as are reasonably requested by U. S. Bank to enable U. S. Bank
to perfect its security interest in those shares. U. S. Bank agrees that, prior
to the occurrence of an Event of Default hereunder, Ajay may sell all or any
portion of the shares of stock described in the second sentence of this
paragraph without U. S. Bank's consent, provided that the proceeds of sale
thereof are applied promptly to Ajay's obligations under the Note. U. S. Bank
and Ajay will use good faith efforts to make arrangements with respect to the
Williams stock that will permit U. S. Bank to perfect its security interest
therein in such a manner that, prior to an Event of Default, Ajay will not be
unduly restricted from selling the stock.
II.7 Release of Claims Against the Banks. Except as specified in the
following sentence, the Obligors and Mr. Itin hereby release and forever
discharge the Banks, and the Banks' affiliates, agents, principals, successors,
assigns, employees, officers, directors, and attorneys, and each of them
(collectively, the "Bank Releasees"), of and from any and all claims, demands,
damages, suits, rights, or causes of action of every kind and nature that the
Obligors and Mr. Itin, or any of them, have or may have against the Bank
Releasees, or any of them, as of the date of this Agreement, whether known or
unknown, contingent or matured, foreseen or unforeseen, asserted or unasserted,
including, but not limited to, all claims for compensatory, general, special,
consequential, incidental, and punitive damages, attorney fees, and equitable
relief. Notwithstanding the foregoing, nothing herein shall constitute or result
in a release of any claims, demands, damages, suits, rights, or causes of action
of any kind or nature that the Obligors and Mr. Itin, or any of them, have or
may claim to have against First Bank System, Inc., or any of its affiliates.
II.8 Release of Claims Against the Obligors and Mr. Itin. Except as
specified in the following sentence, U. S. Bank hereby releases and forever
discharges Mr. Itin, the Obligors, and the Obligors' affiliates, agents,
principals, successors, assigns, employees, officers, directors, and attorneys,
and each of them (collectively, the "Obligor Releasees"), of and from any and
all claims, demands, damages, suits, rights, or causes of action of every kind
and nature that U. S. Bank has or may have against the Obligor Releasees, of any
of them, as of the date of this Agreement, whether known or unknown, contingent
or matured, foreseen or unforeseen, asserted or unasserted, including, but not
limited to, all claims for compensatory, general, special, consequential,
incidental, and punitive damages, attorney fees, and equitable relief.
Notwithstanding the foregoing, nothing herein shall constitute or result in a
release of any claims, demands, damages, suits, rights, or causes of action of
any kind or nature that U. S. Bank has or may claim to have against the Obligor
Releasees in respect of any obligations of the Obligor Releasees under this
Agreement, the Note, the Collateral Documents, the guaranty executed
contemporaneously herewith by Mr. Itin, the Intercreditor Agreement, any account
agreements, or any other agreements between or among U. S. Bank and any of the
parties to this Agreement with respect to ongoing banking services provided by
U. S. Bank.
Section III
Representations and Warranties
III.1 Representations and Warranties. To induce U. S. Bank to enter
into this Agreement, the Obligors represent and warrant as of the date hereof as
follows:
(a) The Obligors are corporations duly organized, validly existing,
and in good standing under the laws of their respective jurisdictions of
incorporation;
(b) The Obligors have the lawful power to own their respective
properties and to engage in the respective business they conduct, and are
duly qualified and in good standing as foreign corporations in the
jurisdictions wherein the nature of the business transacted by them or
property owned by them makes such qualification necessary;
(c) None of the Obligors are in default with respect to
any of their existing material indebtedness (except as previously
has been disclosed in writing by or to U. S. Bank);
(d) The making and performance of this Agreement, the Note, and the
Aptek Mortgage will not (immediately, with the passage of time, the giving
of notice, or both) violate the certificates or articles of incorporation
or bylaws of any of the Obligors, or violate any laws or result in a
default under any material contract, agreement, or instrument to which any
of the Obligors is a party or by which the Obligors or any of their
properties are bound;
(e) The Obligors have the power and authority to enter into and
perform this Agreement, the Note, and the Aptek Mortgage, and to incur the
obligations herein and therein provided for, and have taken all actions
necessary to authorize the execution, delivery, and performance of this
Agreement, the Note, and the Aptek Mortgage;
(f) This Agreement, the Note, and the Aptek Mortgage are, or when
delivered will be, valid, binding, and enforceable in accordance with
their respective terms;
(g) The Obligors have good and indefeasible title to the
Collateral; and
(h) The security interests in the Collateral granted to U. S. Bank
under the Security Agreements create first and prior liens, except for
Permitted Liens (as that term is defined in the Williams Loan Agreement
and the Ajay Loan Agreement) and the liens and security interests of WFB
(when such liens and security interests are granted and U. S. Bank3s liens
become subordinate thereto), upon all of the Collateral.
All of the representations and warranties set forth in paragraph 3.1 of this
Agreement shall be deemed made as of the date hereof, and shall survive until
the Note has been paid in full.
Section IV
Reporting Requirements
IV.1 Quarterly Reports. Within 45 days after the end of each
calendar quarter (60 days in the case of the last calendar quarter of the fiscal
year) until the Note has been paid in full, Williams and Ajay shall provide U.
S. Bank with (a) a consolidated and consolidating statement of cash flows and a
consolidated and consolidating statement of retained earnings of each of
Williams and Ajay for such quarter and for the year to date; (b) a consolidated
and consolidating statement of operations of each of Williams and Ajay for such
quarter and for the year to date; and (c) a consolidated and consolidating
balance sheet of each of Williams and Ajay as of the end of such quarter and for
the year to date. All of the foregoing shall be in reasonable detail, and shall
be certified by the president, vice president, or chief financial officer to
have been prepared in accordance with generally accepted accounting principles
(consistently applied) ("GAAP"), subject to year-end adjustments.
IV.2 Annual Reports. Within 120 days after the close of each fiscal
year until the Note has been paid in full, Williams and Ajay shall provide U. S.
Bank with (a) a consolidated statement of cash flows and a consolidated
statement of stockholders' equity of each of Williams and Ajay for such fiscal
year; (b) a consolidated statement of operations of each of Williams and Ajay
for such fiscal year; and (c) a consolidated balance sheet of each of Williams
and Ajay as of the end of such fiscal year. The statements and balance sheets
shall be audited by an independent certified public accountant selected by
Williams and Ajay and certified by such accountants to have been prepared in
accordance with GAAP and to present fairly the financial position and results of
operations of Williams and Ajay, respectively.
IV.3 Borrowing Base Certificate. Within 45 days after the last day
of each calendar quarter until the Note has been paid in full, the Obligors
shall submit to U. S. Bank a borrowing base certificate in a form reasonably
acceptable to U. S. Bank that identifies in reasonable detail the Borrowing Base
(as that term is defined in the loan agreement among WFB, Williams, and Ajay)
(and the various components of the Borrowing Base) as of the date of the
borrowing base certificate in question. In addition, each borrowing base
certificate shall include a certification by an authorized officer of the
Obligors that the information in the borrowing base certificate is accurate. U.
S. Bank may require the Obligors to provide U. S. Bank with supporting data with
respect to the Borrowing Base, such as summary agings, daily sales journals, and
daily cash receipts journals.
IV.4 Other Information; Access to Books and Records. The Obligors
will make available for inspection and audit during normal business hours by
duly authorized representatives of U. S. Bank any of their records and furnish
U. S. Bank with any information that U. S. Bank reasonably may request regarding
their business affairs and financial condition (other than confidential
intellectual property and proprietary information, unless, with respect to
proprietary information, U. S. Bank shall enter into an appropriate
confidentiality and nondisclosure agreement) within a reasonable time after
written request therefor.
Section V
Default
V.1 Events of Default. The occurrence of any one or more of the
following events (each an "Event of Default") shall constitute a default under
this Agreement:
(a) Ajay shall fail to pay any installment of principal or interest
or fee payable under the Note within 5 days of the date such payment is
due;
(b) Any of the Obligors shall fail to observe or perform
any other obligation to be observed or performed by it hereunder
or under any of the Collateral Documents and such failure shall
continue for a period of 30 days after such party receives notice
of such failure from U. S. Bank;
(c) The occurrence of an event of default under the WFB Loan
Agreement (and such failure shall continue beyond any applicable grace
period so as to result in the actual acceleration of the Obligors'
obligations thereunder);
(d) Proceedings in bankruptcy, or for reorganization of the
Obligors, or any of them, or for the readjustment of any of their debts,
under the Bankruptcy Code, or under any other laws, whether state or
federal, for the relief of debtors, now or hereafter existing, shall be
commenced against or by any of the Obligors, and with respect to any such
proceedings initiated against any of the Obligors, shall not be dismissed
or discharged within 60 days of their commencement; or
(e) A receiver or trustee shall be appointed for any of the
Obligors, or for any substantial part of its or their assets, or any
proceedings shall be instituted for the dissolution or the full or partial
liquidation of any of the Obligors, and such receiver or trustee shall not
be discharged within 60 days of his appointment, or such proceedings shall
not be dismissed or discharged within 60 days of their commencement, or
any of the Obligors shall discontinue business or materially change the
nature of its or their business.
V.2 Remedies. Following the occurrence of an Event of Default (and
subject to the terms of the Intercreditor Agreement), U. S. Bank immediately and
without notice to the Obligors may exercise any or all of its rights and
remedies under this Agreement, the Note, the Security Agreements, any other
agreements between or among the parties, and applicable law, all of which rights
and remedies are cumulative.
Section VI
Miscellaneous Provisions
VI.1 Construction. The provisions of this Agreement shall be in
addition to those of any guaranty, pledge or security agreement, note, or other
evidence of liability now or hereafter held by U. S. Bank, all of which shall be
construed as complementary to each other. Nothing herein contained shall prevent
the Bank from enforcing any or all other guaranties, pledge or security
agreements, notes, or other evidences of liability in accordance with their
respective terms.
VI.2 Notice of Default. The Obligors shall notify U. S. Bank
immediately if they become aware of the occurrence of any Event of Default or of
any fact, condition, or event that with the giving of notice or passage of time
or both, would become an Event of Default or if it or they become aware of any
material adverse change in the financial condition (including, without
limitation, proceedings in bankruptcy, insolvency, reorganization or the
appointment of a receiver or trustee), or results of operations of the Obligors
or of the failure of the Obligors to observe any of their undertakings hereunder
or under the Collateral Documents.
VI.3 Change in Location of Collateral. The Obligors hereby agree to
notify U. S. Bank of any change in the location of any of the Collateral, of the
change in the location of any of their places of business, or of the
establishment of any new (or the discontinuance of any existing) place of
business within 45 days following any such change, establishment, or
discontinuance.
VI.4 Further Assurance. From time to time, the Obligors will execute
and deliver to U. S. Bank such additional documents and will provide such
additional information as U. S. Bank reasonably may require to carry out the
terms of this Agreement and be informed of the status and affairs of the
Obligors.
VI.5 Enforcement and Waiver by U. S. Bank. Subject to the terms of
the Intercreditor Agreement, U. S. Bank shall have the right at all times to
enforce the provisions of this Agreement, the Note, and the Collateral Documents
in strict accordance with the terms hereof and thereof, notwithstanding any
conduct or custom on the part of U. S. Bank in refraining from doing so at any
time or times. The failure of U. S. Bank at any time or times to enforce its
rights under such provisions, strictly in accordance with the same, shall not be
construed as having created a custom in any way or manner contrary to specific
provisions of this Agreement, or as having in any way or manner modified or
waived the same. All rights and remedies of U. S. Bank are cumulative and
concurrent and the exercise of one right or remedy shall not be deemed a waiver
or release of any other right or remedy.
VI.6 Expenses of U. S. Bank. The Obligors will, on demand, reimburse
U. S. Bank for all expenses, including the reasonable fees and expenses of legal
counsel for U. S. Bank and appraisal fees incurred by U. S. Bank in connection
with the administration, amendment, modification, and the enforcement of this
Agreement and the Collateral Documents and the collection or attempted
collection of the Note, whether occurring before or after an Event of Default
hereunder.
VI.7 Notices. Any notices or consents required or permitted by this
Agreement shall be in writing and shall be deemed to have been given or made
when actually received or if sent by certified mail, postage prepaid, return
receipt requested, upon the earlier of actual receipt or 5 days after mailing,
and addressed, as follows, unless such address is changed by written notice
hereunder:
(i) If to Ajay or the Ajay Guarantors:
Ajay Sports, Inc.
1501 E. Wisconsin Street
Delavan, Wisconsin 53115
Attention: Thomas W. Itin
With copies to:
Friedlob, Sanderson, Raskin, Paulson & Tourtillott,
LLC
1400 Glenarm Place, Suite 300
Denver, Colorado 80202
Attention: Gerald Raskin
(ii) If to Williams or the Williams Guarantors:
Williams Controls, Inc.
14100 S.W. 72nd Avenue
Portland, Oregon 97224
Attention: Thomas W. Itin
With copies to:
Friedlob Sanderson Raskin Paulson & Tourtillott, LLC
1400 Glenarm Place, Suite 300
Denver, Colorado 80202
Attention: Gerald Raskin
(iii) If to U. S. Bank:
United States National Bank of Oregon
111 S.W. Fifth Avenue (T-8)
Portland, Oregon 97204
Attention: Betty J. Kinoshita
With copies to:
Miller, Nash, Wiener, Hager & Carlsen LLP
Attorneys at Law
3500 U. S. Bancorp Tower
111 S.W. Fifth Avenue
Portland, Oregon 97204-3699
Attention: Louis G. Henry
VI.8 Applicable LawVI.8 Applicable LawVI.8 Applicable Law. This
Agreement is subject to and shall be construed and enforced in accordance with
the laws of the state of Oregon, without regard to principles of conflicts of
law.
VI.9 Binding Effect, Assignment, and Entire AgreementVI.9 Binding
Effect, Assignment, and Entire AgreementVI.9 Binding Effect, Assignment, and
Entire Agreement. This Agreement shall inure to the benefit of, and shall be
binding upon, the respective successors and permitted assigns of the parties
hereto. The Obligors have no right to assign any of their rights or obligations
hereunder without the prior written consent of U. S. Bank. U. S. Bank may assign
its rights hereunder to a bank, a financial institution, an insurance company,
or an institutional investor or institutional lender. This Agreement and the
documents executed and delivered pursuant hereto constitute the entire agreement
among the parties and may be amended only by a writing signed on behalf of each
party.
VI.10 SeverabilityVI.10 SeverabilityVI.10 Severability. If any
provisions of this Agreement shall be held invalid under any applicable laws,
such invalidity shall not affect any other provision of this Agreement that can
be given effect without the invalid provision, and, to this end, the provisions
hereof are severable.
VI.11 Counterparts VI.11 CounterpartsVI.11 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute but one and
the same instrument.
VI.12 Statutory NoticeVI.12 Statutory NoticeVI.12 Statutory
Notice. UNDER OREGON LAW, MOST AGREEMENTS, PROMISES, AND COMMITMENTS MADE BY
U. S. BANK CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR
PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES, OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE, MUST BE IN WRITING, EXPRESS CONSIDERATION, AND BE SIGNED BY U. S.
BANK TO BE ENFORCEABLE.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
UNITED STATES NATIONAL BANK WILLIAMS CONTROLS, INC.
OF OREGON
By: By:
Betty J. Kinoshita Thomas W. Itin
Vice President President and
Chief Executive Officer
AGROTEC WILLIAMS, INC. APTEK WILLIAMS, INC.
By: By:
Thomas W. Itin Thomas W. Itin
President and President and
Chief Executive Officer Chief Executive Officer
HARDEE WILLIAMS, INC. KENCO WILLIAMS, INC.
By: By:
Thomas W. Itin Thomas W. Itin
President and President and
Chief Executive Officer Chief Executive Officer
NESC WILLIAMS, INC. PREMIER PLASTIC
TECHNOLOGIES, INC.
By: By:
Thomas W. Itin Thomas W. Itin
President and President and
Chief Executive Officer Chief Executive Officer
<PAGE>
TECHWOOD WILLIAMS, INC. WACCAMAW WHEEL WILLIAMS,
INC.
By: By:
Thomas W. Itin Thomas W. Itin
President and President and
Chief Executive Officer Chief Executive Officer
WILLIAMS AUTOMOTIVE, INC. WILLIAMS CONTROLS INDUSTRIES
INC.
By: By:
Thomas W. Itin Thomas W. Itin
President and President and
Chief Executive Officer Chief Executive Officer
WILLIAMS TECHNOLOGIES, INC. WILLIAMS WORLD TRADE, INC.
By: By:
Thomas W. Itin Thomas W. Itin
President and President and
Chief Executive Officer Chief Executive Officer
AJAY SPORTS, INC. AJAY LEISURE PRODUCTS, INC.
By: By:
Thomas W. Itin Thomas W. Itin
President and President and
Chief Executive Officer Chief Executive Officer
AJAY LEISURE de MEXICO LEISURE LIFE, INC.
C.V. de S.A.
By: By:
Clarence H. Yahn Thomas W. Itin
Sole Administrator Chairman of the Board
PALM SPRINGS GOLF, INC.
By:
Thomas W. Itin Thoms W. Itin
Chief Executive Officer
PROMISSORY NOTE
$2,340,000 Portland, Oregon
July 14, 1997
1. The Loan; Obligation to Pay. United States National Bank of
Oregon ("U. S. Bank") has agreed to make a loan to Ajay Sports, Inc.
("Borrower"), in the amount of $2,340,000. Borrower, for value received, hereby
promises to pay to the order of U. S. Bank the principal sum of $2,340,000, or
such lesser amount as is outstanding under this note, on the terms set forth in
this note. In addition, Borrower hereby promises to pay interest on the unpaid
principal amount owed under this note (which shall accrue on and after the date
of this note as specified in paragraph 2 below), together with all costs and
fees, including reasonable attorney fees, incurred by U. S. Bank in enforcing
Borrower3s obligations under this note. Principal hereof and the interest owing
under this note are payable to U. S. Bank at 111 S.W. Fifth Avenue (T-8),
Portland, Oregon 97204, or such other place as U. S. Bank may direct, in such
coin or currency of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts.
2. Interest Rate. From the date of this note until December 31,
1997, interest shall accrue on the principal amount owed hereunder at the Prime
Rate (as defined below) plus 1 percent per annum. From January 1, 1998, through
and including the date Borrower repays the principal amount owed under this note
in full, interest shall accrue on the principal amount owed hereunder at the
Prime Rate plus 2 percent per annum. As used in this note, the term "Prime Rate"
means the rate of interest that U. S. Bank from time to time establishes as its
prime rate. The Prime Rate is not necessarily the lowest rate of interest that
U. S. Bank collects from any borrower, or class of borrowers. At any time that
the Prime Rate is in effect under this note, the interest rate on the loan
evidenced hereby shall be adjusted concurrently with each change in the Prime
Rate. The interest rates specified in this paragraph are effective unless
Borrower is in default hereunder, in which case the principal balance owed
hereunder at U. S. Bank3s election shall bear interest at the Prime Rate plus 5
percent per annum.
3. Monthly Payments of Interest. On or before August 1, 1997, and
the first day of each month thereafter through and including June 1, 2000,
Borrower shall pay U. S. Bank all interest that has accrued on the principal
balance outstanding under this note through the last day of the preceding month.
All interest owed under this note shall be computed at the applicable rate based
on a 360-day year, applied to actual days elapsed. All payments made under this
note shall be applied first to any costs, fees, or expenses (including
reasonable attorney fees) that Borrower is obligated to pay hereunder, then to
interest, and finally to the principal amount owed under this note.
4. Loan Fees. Borrower shall pay U. S. Bank a loan fee equal to
one-half of 1 percent of the principal balance owed under this note as of
December 31, 1997. That fee shall be due and payable by Borrower on December 31,
1997. If Borrower has repaid the entire amount owed under this note prior to
December 31, 1997, no loan fee will be due hereunder.
5. Scheduled Principal Payments. After Term Loan II (as that term is
defined in the loan agreement of even date herewith among Borrower, certain of
its affiliates, and Wells Fargo Bank, National Association (the "Wells Fargo
Loan Agreement") has been repaid, Borrower shall make principal reduction
payments with respect to the obligation evidenced by this note as follows:
(a) $10,000 per month, starting on the tenth day of the first
calendar month after the month in which Term Loan II is repaid, and on the
tenth day of each month thereafter until the amount owed pursuant to this
note is repaid in full; and
(b) the Cash Flow Payments (as that term is defined below). "Cash
Flow Payments" means, with respect to each fiscal quarter of Williams
Controls, Inc. ("Williams"), and Borrower ending after Term Loan II is
repaid, (i) within 60 days after the end of each fiscal quarter of
Williams, an amount equal to 6.25 percent of Williams' consolidated Excess
Cash Flow (as that term is defined in the Wells Fargo Loan Agreement) for
the 12-month period ending with such quarter, and (ii) within 60 days
after the end of each fiscal quarter of Borrower, an amount equal to 6.25
percent of Borrower's consolidated Excess Cash Flow for the 12-month
period ending with such quarter; provided, however, in no event will the
period described in items (i) and (ii) begin before August 1, 1997, and
if, as a result of this proviso, the applicable period is less than 12
months, the percentage shall increase from 6.25 percent by an additional
2.083 percent for each month by which such period is less than 12 months
(for example, if the period is ten months, the applicable percentage shall
be 10.416 percent). Notwithstanding the foregoing, Borrower shall not be
required to pay a Cash Flow Payment due hereunder to the extent that such
payment would cause less than $1,000,000 in Available Credit (as that term
is defined in the Wells Fargo Loan Agreement) to exist under the Wells
Fargo Loan Agreement. However, to the extent that the minimum credit
availability requirement specified in the preceding sentence precludes
Borrower from paying a Cash Flow Payment due to U. S. Bank, Borrower is
obligated to pay, and shall pay, the unpaid portion of the Cash Flow
Payment as soon as, and to the extent that, more than $1,000,000 in
Available Credit exists under the Wells Fargo Loan Agreement.
At the time each Cash Flow Payment is due hereunder, Borrower shall deliver
to U. S. Bank a written report in a form reasonably satisfactory to U. S.
Bank detailing the calculation of the consolidated Excess Cash Flow of
Borrower and Williams for the 12-month period in question. If Borrower
contends that it is unable to pay all or any portion of a Cash Flow Payment
due under this note due to the $1,000,000 Available Credit limitation
described above, Borrower shall inform U. S. Bank of that fact in writing and
shall provide U. S. Bank all information reasonably requested by U. S. Bank
to enable U. S. Bank to verify Borrower's contention (including, but not
limited to, information regarding the Borrowing Base (as that term is defined
in the Wells Fargo Loan Agreement)).
In addition to the above-described payments, Borrower shall make
principal reduction payments with respect to the obligation evidenced by this
note in an aggregate amount not to exceed $200,000 as soon as, and to the extent
that, more than $2,000,000 in Available Credit exists under the Wells Fargo Loan
Agreement. Until Borrower has paid the full amount specified in the preceding
sentence, Borrower promptly will provide U. S. Bank with information reasonably
requested by U. S. Bank with respect to the Borrowing Base (as that term is
defined in the Wells Fargo Loan Agreement).
6. Payment in Full. Borrower's obligations pursuant to this note
shall mature and be due and payable in full upon the earlier of (a) July 1,
2000, or (b) acceleration of the amount owed hereunder in accordance with the
provisions of paragraph 8 of this note following the occurrence of an event of
default under this note. In the event of an acceleration of Borrower3s
obligations hereunder, the provisions of paragraphs 3 and 5 of this note calling
for scheduled payments of interest and principal no longer shall be applicable
and the entire amount of principal and interest hereunder shall be immediately
due and payable.
7. Prepayment. Borrower may prepay amounts outstanding under
this note that at any time, without a prepayment charge. Partial prepayments
do not relieve Borrower of its obligation to make the interest and principal
payments specified in paragraphs 3 and 5 of this note.
8. Default. If Borrower fails to make any payment required by this
note within 5 days of the day such payment is due, Borrower shall be in default
hereunder. If Borrower is in default hereunder, or if an event of default occurs
under the Consent, Reaffirmation, and Release Agreement of even date herewith
among U. S. Bank, Borrower, and certain affiliates of Borrower (the
"Agreement"), or any other documents that provide security for, or guaranties
of, Borrower3s obligation pursuant to this note (collectively referred to as the
"Loan Documents"), the principal balance of this note thereafter at U. S. Bank's
election shall bear interest at the Prime Rate plus 5 percent per annum,
initially determined on the date of Borrower's default and changing thereafter,
if and when the rate changes (which rate shall remain in effect until the
default is cured). Subject to the qualification specified in the following
sentence, if Borrower does not cure a default hereunder within 30 days of
receiving written notice from U. S. Bank of the default, U. S. Bank may without
further notice to Borrower immediately exercise any or all of its rights under
the Loan Documents and applicable law (subject to the terms and conditions of
the Intercreditor Agreement of even date herewith between U. S. Bank and Wells
Fargo Bank, National Association), and may declare the entire balance of
principal of this note and any accrued interest and all other indebtedness
secured or to be secured by the Loan Documents immediately due and payable in
the manner and with the effect provided in the Loan Documents. Notwithstanding
the foregoing, U. S. Bank hereby agrees that it will not accelerate the
principal balance owed under this note following the first uncured payment
default hereunder, but may do so following any subsequent uncured payment
default. U. S. Bank3s failure to exercise any remedies or rights, or failure to
immediately accelerate the debt evidenced by this note, shall not constitute a
waiver of U. S. Bank3s right to do so at any other time.
9. Costs and Attorney Fees. If Borrower defaults with respect to any
payment provided for in this note, or in case of an event of default under any
of the Loan Documents, U. S. Bank shall have the right, at Borrower's expense,
to consult an attorney or collection agency, to make any demand, enforce any
remedy, or otherwise protect its rights under this note and the Loan Documents.
Borrower hereby promises to pay all reasonable costs, fees, and expenses
incurred by U. S. Bank in connection with U. S. Bank's efforts to recover the
amount owed hereunder, including, without limitation, reasonable attorneys' fees
(with or without arbitration or litigation), arbitration and court costs,
collection agency charges, notice expenses and title search expenses, and the
failure of Borrower to pay the same shall, in itself, constitute a further and
additional default. In the event that a suit, action, or arbitration is
instituted to enforce this note, or any rights under the Loan Documents, the
prevailing party shall be entitled to recover, in addition to costs and expenses
provided by statute or otherwise, such sums as the court or arbitrator may
adjudge reasonable as attorney's fees in such proceeding and on any appeals from
any judgment or decree entered therein and the costs and attorney fees for
collection of the amount due therein.
Borrower further agrees to pay immediately upon demand all costs and
expenses of U. S. Bank including reasonable attorney's fees: (a) if U. S. Bank
seeks to have the property securing the loan evidenced by this note abandoned by
any estate in bankruptcy; (b) if U. S. Bank attempts to have any stay or
injunction prohibiting the enforcement or collection of this note, or the
enforcement of any other Loan Document, lifted by any bankruptcy court or other
court; (c) if U. S. Bank participates in any subsequent proceedings or appeals
from any order or judgment entered in any such proceeding; (d) if U. S. Bank
deems it appropriate to file a proof of claim, or in any other manner
participate in any bankruptcy or similar proceedings; or (e) if U. S. Bank
retains legal counsel in connection with any amendments or modifications of this
note, or any other Loan Document requested by Borrower, or required by or
resulting from Borrower's default hereunder or thereunder.
10. Notice. Any notice to be given pursuant to this note shall
be given as provided in the Agreement.
11. Strictly Enforceable Agreement. Time is of the essence. Borrower
agrees that it has received valuable consideration hereunder, that it signs this
note as maker and not as surety, and that any and all suretyship defenses hereby
are waived. Borrower for itself and all drawers and endorsers severally waives
presentment for payment, protest, and notice of protest of this note.
12. Arbitration. Either the holder of this note or Borrower may
require that all disputes, claims, counterclaims, and defenses, including those
based on or arising from any alleged tort (collectively referred to below as
"Claims") relating in any way to this note, or any transaction of which this
note is a part, be settled by binding arbitration in Portland, Oregon in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association and Title 9 of the U.S. Code. Notwithstanding the reference to the
American Arbitration Association rules in the preceding sentence, the American
Arbitration Association shall not be involved in or administer the arbitration
(unless the parties otherwise agree in writing). Rather, within 30 days of the
date of a request or demand for arbitration of any dispute or Claims hereunder,
the parties shall agree upon a mutually acceptable arbitrator (and, if they are
unable or unwilling to do so, an arbitrator shall be appointed pursuant to 9 USC
' 5). All Claims will be subject to the statutes of limitation applicable if
they were litigated. This provision is void if arbitration would jeopardize U.
S. Bank3s ability to proceed against collateral located outside of Oregon, or if
the effect of the arbitration procedure (as opposed to any Claims of Borrower)
would be to materially impair the holder's ability to realize on any collateral
securing the loan. One neutral arbitrator will decide all issues. The arbitrator
will be an active Oregon State Bar member in good standing. All arbitration
hearings will be held in Portland, Oregon. In addition to all other powers, the
arbitrator shall have the exclusive right to determine all issues of
arbitrability. Judgment on any arbitration award may be entered in any court
with jurisdiction. Each party has the right before, during, and after any
arbitration to exercise any number of the following remedies, in any order or
concurrently:
(a) Setoff,
(b) Self-help repossession,
(c) Judicial or nonjudicial foreclosure against real or
personal property collateral, or
(d) Provisional remedies, including injunction, appointment of
receiver, attachment, claim and delivery, and replevin.
This arbitration clause cannot be modified or waived by either party except in
writing, which writing must refer to this arbitration clause and be signed by
both the holder of this note and Borrower.
13. Assignment. U. S. Bank may assign, transfer, or participate its
right, title, interest, and obligation in and under this note and the Loan
Documents without Borrower's consent to another bank, a financial institution,
an insurance company, an institutional lender, or an institutional investor.
Borrower may not assign its rights or transfer its obligations under this note
without U. S. Bank's prior, written consent.
14. Governing Law. This note is governed by the laws of the state of
Oregon, without regard to conflict of laws principles; provided, however, that
to the extent the holder of this note has greater rights or remedies under
federal law, this provision shall not be deemed to deprive the holder of such
rights and remedies as may be available under federal law.
Under Oregon law, most agreements, promises, and commitments made by
U. S. Bank after October 3, 1989 concerning loans and other credit extensions
which are not for personal, family, or household purposes or secured solely by
the borrower's residence must be in writing, express consideration, and be
signed by U. S. Bank to be enforceable.
AJAY SPORTS, INC.
By
Thomas W. Itin
President
Please return to:
United States National Bank of Oregon
c/o Louis G. Henry
Miller, Nash, Wiener, Hager & Carlsen LLP
3500 U. S. Bancorp Tower
111 S.W. Fifth Avenue
Portland, Oregon 97204-3699
THIS MORTGAGE SECURES A PROMISSORY NOTE IN THE PRINCIPAL AMOUNT OF $2,340,000
THAT HAS BEEN EXECUTED AND DELIVERED OUTSIDE THE STATE OF FLORIDA. FLORIDA
DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $8,190 AND FLORIDA INTANGIBLE PERSONAL
PROPERTY TAXES IN THE AMOUNT OF $4,680 ARE BEING PAID UPON RECORDATION HEREOF.
MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT, AND FIXTURE FILING
(Aptek Williams, Inc.)
THIS MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT, AND FIXTURE
FILING (this "Mortgage") is made as of the 14th day of July, 1997, by and
between Aptek Williams, Inc. ("Mortgagor"), whose address is 700 N.W. 12th
Avenue, Deerfield Beach, Florida 33442, and United States National Bank of
Oregon ("Mortgagee"), whose address is 111 S.W. Fifth Avenue (T-8), Portland,
Oregon 97204.
RECITALS
A. Mortgagee made a loan to Williams Controls, Inc.
("Williams"), in the amount of $30,000,000, which loan was evidenced by a
Revolving Loan Note and a Revolving Loan Agreement dated as of July 25, 1995
(as such note and loan agreement have been amended from time to time). That
loan is due and payable in full on June 30, 1997.
B. Williams is obligated to Mortgagee pursuant to a guaranty of
the obligations of Ajay Sports, Inc. ("Borrower"), to Mortgagee in the
maximum principal amount of $13,500,000. Borrower's obligations to Mortgagee
are due and payable in full on June 30, 1997.
C. Mortgagor has guaranteed the payment and performance of
Williams' obligations described in Recitals A and B above.
D. Williams and Borrower have located an alternative source of
financing for the majority of their obligations to Mortgagee, which would result
in payment of all but $2,340,000 (the "Residual Debt") of their obligations to
Mortgagee. Borrower has offered to execute and deliver to Mortgagee a promissory
note in the principal amount of $2,340,000 (the "Note"), and to repay the
Residual Debt pursuant to the terms set forth in that note.
E. Mortgagee is willing to agree to allow Borrower to repay
the Residual Debt pursuant to the terms of the Note.
F. As a condition to accepting payment of the balance of the
Existing Obligation on the terms set forth in the Note, Mortgagee has required
that Mortgagor execute and deliver this Mortgage to secure Borrower's
obligations to Mortgagee.
NOW, THEREFORE, for good and valuable consideration, receipt of
which is hereby acknowledged, and for the purpose of securing the obligations
described in Section 1.1 of this Mortgage, Mortgagor irrevocably mortgages to
Mortgagee all of Mortgagor3s right, title, and interest in and to the real
property located in Broward County, Florida, more particularly described in
Exhibit 1 attached hereto and incorporated herein (the "Property");
TOGETHER WITH all interests, estates, and rights that Mortgagor now
has or hereafter may acquire in (1) the Property; (2) any and all options,
agreements, and contracts for the purchase or sale of all or any part or parts
of the Property or interests in the Property; (3) all easements, rights-of-way,
and rights used in connection with the Property or as a means of access to the
Property; and (4) all tenements, hereditaments, and appurtenances in any manner
belonging, relating, or appertaining to the Property;
TOGETHER WITH all interests, estates, and rights of Mortgagor, now
owned or hereafter acquired, in and to any land lying within any streets,
sidewalks, alleys, strips, and gores adjacent to or used in connection
therewith;
TOGETHER WITH all rights, titles, and interests of Mortgagor, now
owned or hereafter acquired, in and to any and all buildings and other
improvements of every nature now or hereafter located on the Property and all
fixtures, machinery, equipment, and other personal property located on the
Property or attached to, contained in, or used in any such buildings and other
improvements, and all appurtenances and additions to and substitutions and
replacements of the Property (all of the foregoing being collectively referred
to below as the "Improvements");
TOGETHER WITH any and all mineral, oil and gas rights, air rights,
development rights, water rights, water stock, and water service contracts,
drainage rights, zoning rights, and other similar rights or interests that
benefit or are appurtenant to the Property or the Improvements or both, and any
of their proceeds;
TOGETHER WITH all present and future rights in and to the trade name
by which all or any portion of the Property and the Improvements are known; all
books and records relating to the use and operation of all or any portion of the
Property and Improvements; all right, title, and interest of Mortgagor in, to,
and under all present and future plans, specifications, and contracts relating
to the design, construction, management, or inspection of any Improvements; all
rights, titles, and interests of Mortgagor in and to all present and future
licenses, permits, approvals, and agreements with or from any municipal
corporation, county, state, or other governmental or quasi-governmental entity
or agency relating to the development, improvement, division, or use of all or
any portion of the Property to the extent such trade names, licenses, permits,
approvals, and agreements are assignable by law; and all other general
intangibles relating to the Property, the Improvements, or their use and
operation;
TOGETHER WITH all rights of Mortgagor in and to any escrow or
withhold agreements, title insurance, surety bonds, warranties, management
contracts, leasing and sales agreements, and service contracts that are in any
way relevant to the ownership, development, improvement, management, sale, or
use of all or any portion of the Property or any of the Improvements;
TOGETHER WITH Mortgagor3s rights under any payment, performance, or
other bond in connection with construction of any Improvements, and all
construction materials, supplies, and equipment delivered to the Property or
intended to be used in connection with the construction of any Improvements; and
TOGETHER WITH all rights, interests, and claims that Mortgagor now
has or may acquire with respect to any damage to or taking of all or any part of
the Property or the Improvements, including without limitation any and all
proceeds of insurance in effect with respect to the Improvements, any and all
awards made for taking by eminent domain or by any proceeding or purchase in
lieu thereof, of the whole or any part of the Property or the Improvements, and
any and all awards resulting from any other damage to the Property or the
Improvements, all of which are assigned to Mortgagee, and, subject to the terms
of this Mortgage, Mortgagee is authorized to collect and receive such proceeds,
to give proper receipts and acquittances for the proceeds, and to apply them to
the Obligations secured by this Mortgage.
All of the above is sometimes referred to below as the "Mortgaged
Property."
This Mortgage, the Note, the guaranty agreement executed by
Mortgagor in favor of Mortgagee, the Consent, Reaffirmation, and Release
Agreement of even date herewith among Williams, Borrower, Mortgagee, Mortgagor,
and others, and all other agreements or instruments executed at any time in
connection therewith, as they may be amended or supplemented from time to time,
are sometimes collectively referred to below as the "Loan Documents."
TO PROTECT THE SECURITY OF THIS MORTGAGE, MORTGAGOR HEREBY COVENANTS
AND AGREES AS FOLLOWS:
<PAGE>
ARTICLE I
Particular Covenants and Warranties of Mortgagor
I.1 Obligations Secured. This Mortgage secures the following
obligations, which are collectively referred to in this Mortgage as the
"Obligations":
(1) The payment of all indebtedness evidenced by the Note, including
but not limited to principal and interest, and the performance of all covenants
and obligations of Borrower under the Note, whether such payment and performance
is now due or becomes due in the future;
(2) The payment and performance of all covenants and obligations in
this Mortgage, in the other Loan Documents, and in all other security
agreements, notes, agreements, and undertakings now existing or hereafter
executed by Mortgagor with or for the benefit of Mortgagee; and
(3) The payment and performance of any and all other indebtedness
and obligations of Mortgagor to Mortgagee of any nature whatsoever, whether
direct or indirect, primary or secondary, joint or several, liquidated or
unliquidated, whenever and however arising, and whether or not reflected in a
written agreement or instrument.
I.2 Payment of Indebtedness; Performance of Covenants. Borrower and
Mortgagor shall duly and punctually pay and perform all of the Obligations. The
maturity date of the Note when all principal and interest shall be due and
payable is July 1, 2000 (or such earlier date, if any, on which the amount owed
under the Note is accelerated following an uncured event of default under the
Note.
I.3 Property. Mortgagor warrants that it holds good and merchantable
title to the Property and the Improvements, free and clear of all liens,
encumbrances, reservations, restrictions, easements, and adverse claims except
those specifically listed in Exhibit 2. Mortgagor covenants that it shall
forever defend Mortgagee3s rights under this Mortgage and the priority of this
Mortgage against the adverse claims and demands of all persons.
I.4 Further Assurances.
(1) Mortgagor shall execute, acknowledge, and deliver, from time to
time, such further instruments as Mortgagee may require to accomplish the
purposes of this Mortgage.
(2) Mortgagor, immediately upon the execution and delivery of this
Mortgage, and thereafter from time to time, shall cause this Mortgage, any
supplemental security agreement, mortgage, or deed of trust and each instrument
of further assurance, to be recorded and rerecorded in such manner and in such
places as may be required by any present or future law in order to perfect, and
continue the perfection of, the lien and estate of this Mortgage.
(3) Mortgagor shall pay all filing and recording fees, and all
expenses incident to the execution, filing, recording, and acknowledgment of
this Mortgage; any security agreement, mortgage, or deed of trust supplemental
hereto and any instrument of further assurance; and all federal, state, county,
and municipal taxes, assessments and charges arising out of or in connection
with the execution, delivery, filing, and recording of this Mortgage, any
supplemental security agreement, mortgage, or deed of trust and any instrument
of further assurance.
I.5 Compliance with Laws. Mortgagor further represents, warrants,
and covenants that:
(1) The Property, if developed, has been developed, and all
Improvements, if any, have been constructed and maintained, in full compliance
with all applicable laws, statutes, ordinances, regulations, and codes of all
federal, state, and local governments (collectively "Laws"), and all covenants,
conditions, easements, and restrictions affecting the Property (collectively
"Covenants"); and
(2) Mortgagor and its operations upon the Property currently comply,
and will hereafter comply in all material respects with all applicable Laws and
Covenants.
I.6 Definitions; Environmental Covenants; Warranties and
Compliance.
(1) For purposes of this section, "Environmental Law" means any
federal, state, or local law, statute, ordinance, or regulation pertaining to
Hazardous Substances, health, industrial hygiene, or environmental conditions,
including without limitation the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 ("CERCLA"), as amended, 42 USC
"9601-9675, and the Resource Conservation and Recovery Act of 1976 ("RCRA"), as
amended, 42 USC "6901-6992.
(2) For the purposes of this section, "Hazardous Substance"
includes, without limitation, any material, substance, or waste that is or
becomes regulated or that is or becomes classified as hazardous, dangerous, or
toxic under any federal, state, or local statute, ordinance, rule, regulation,
or law.
(3) Mortgagor will not use, generate, manufacture, produce, store,
release, discharge, or dispose of on, under, or about the Property, or the
Property3s groundwater, or transport to or from the Property, any Hazardous
Substance and will not permit any other person to do so, except for such
Hazardous Substances that may be used in the ordinary course of Mortgagor3s
business and in compliance with all Environmental Laws, including but not
limited to those relating to licensure, notice, and recordkeeping.
(4) Mortgagor will keep and maintain the Property in compliance
with, and shall not cause or permit all or any portion of the Property,
including groundwater, to be in violation of any Environmental Law.
(5) Mortgagor shall give prompt written notice to Mortgagee of:
(a) Any proceeding, inquiry, or notice by or from any governmental
authority with respect to any alleged violation of any Environmental Law
or the presence of any Hazardous Substance on the Property or the
migration of any Hazardous Substance from or to other premises;
(b) All known claims made or threatened by any person against
Mortgagor or with respect to the Property or Improvements relating to any
loss or injury resulting from any Hazardous Substance or the violation of
any Environmental Law;
(c) The existence of any Hazardous Substance on or about all or
any portion of the Property; or
(d) Mortgagor3s discovery of any occurrence or condition on any real
property adjoining or in the vicinity of the Property that could in
Mortgagor3s judgment cause any restrictions on the ownership, occupancy,
transferability, or use of the Property under any Environmental Law.
(6) Mortgagor shall promptly provide to Mortgagee copies of all
reports, documents, and notices provided to or received from any agency
administering any Environmental Laws. Mortgagee shall have the right to join and
participate, in its own name if it so elects, in any legal proceeding or action
initiated with respect to the Property or Improvements in connection with any
Environmental Law and have its attorney fees in connection with such an action
paid by Mortgagor, if Mortgagee determines that such participation is reasonably
necessary to protect its interest in the Mortgaged Property.
(7) If, at any time, Mortgagee has reason to believe that any
release, discharge, or disposal of any Hazardous Substance affecting the
Property or Improvements has occurred or is threatened, or if Mortgagee has
reason to believe that a violation of an Environmental Law has occurred or may
occur with respect to the Property or Improvements, Mortgagee may require
Mortgagor to obtain or may itself obtain, at Mortgagor3s expense, an
environmental assessment of such condition or threatened condition by a
qualified environmental consultant. Mortgagor shall promptly provide to
Mortgagee a complete copy of any environmental assessment obtained by Mortgagor.
(8) In the event that any investigation, site monitoring,
containment, cleanup, removal, restoration, or other remedial work of any kind
or nature (the "Remedial Work") is required under any applicable Environmental
Law, any judicial order, or by any governmental agency or person because of, or
in connection with, the current or future presence, suspected presence, release
or suspected release of a Hazardous Substance on, under, or about all or any
portion of the Property, or the contamination (whether presently existing or
occurring after the date of this Mortgage) of the buildings, facilities, soil,
groundwater, surface water, air, or other elements on or under any other
property as a result of Hazardous Substances emanating from the Property,
Mortgagor shall, within 30 days after written demand by Mortgagee for
Mortgagor3s performance under this provision (or such shorter period of time as
may be required under any applicable law, regulation, order, or agreement),
commence and thereafter diligently prosecute to completion, all such Remedial
Work. All costs and expenses of such Remedial Work shall be paid by Mortgagor
including, without limitation, Mortgagee3s reasonable attorney fees and costs
incurred in connection with monitoring or review of the legal aspects of such
Remedial Work. In the event Mortgagor shall fail to timely commence, or cause to
be commenced, such Remedial Work, Mortgagee may, but shall not be required to,
cause such Remedial Work to be performed. In that event, all costs and expenses
incurred in connection with the Remedial Work shall become part of the
Obligations secured by this Mortgage and shall bear interest until paid at the
rate provided in the Note.
(9) Mortgagor shall hold Mortgagee, and its directors, officers,
employees, agents, successors, and assigns, harmless from, indemnify them for,
and defend them against any and all losses, damages, liens, costs, expenses, and
liabilities directly or indirectly arising out of or attributable to any
violation of any Environmental Law, any breach of Mortgagor3s warranties in this
Section 1.6, or the use, generation, manufacture, production, storage, release,
threatened release, discharge, disposal, or presence of a Hazardous Substance
on, under, or about the Property, including without limitation the costs of any
required repair, cleanup, containment, or detoxification of the Property, the
preparation and implementation of any closure, remedial or other required plans,
attorney fees and costs (including but not limited to those incurred in any
proceeding and in any review or appeal), fees, penalties, and fines.
(10) Mortgagor represents and warrants to Mortgagee that:
(a) Neither the Property nor Mortgagor is in violation of or subject
to any existing, pending, or threatened investigation by any governmental
authority under any Environmental Law;
(b) Mortgagor has not and is not required by any Environmental
Law to obtain any permit or license other than those it has obtained to
construct or use the Improvements; and
(c) To the best of Mortgagor3s knowledge, no Hazardous Substance has
ever been used, generated, manufactured, produced, stored, released,
discharged, or disposed of on, under, or about the Property in violation
of any Environmental Law.
(11) All representations, warranties, and covenants in this Section
1.6 shall survive the satisfaction of the Obligations, the release or
satisfaction of this Mortgage, or the foreclosure of this Mortgage by any means.
I.7 Maintenance and Improvements. Mortgagor shall not permit all or
any part of the Improvements to be removed, demolished, or materially altered
without Mortgagee3s prior written consent; provided, however, that Mortgagor may
remove, demolish, or materially alter such Improvements as become obsolete in
the usual conduct of Mortgagor3s business, if the removal or material alteration
does not materially detract from the operation of the Mortgagor3s business and
if all Improvements that are demolished or removed are promptly replaced with
Improvements of like value and quality. Mortgagor shall maintain every portion
of the Property and Improvements in good repair, working order, and condition,
except for reasonable wear and tear, and shall at Mortgagee3s election restore,
replace, or rebuild all or any part of the Improvements now or hereafter damaged
or destroyed by any casualty (whether or not insured against or insurable) or
affected by any Condemnation (as defined in Section 2.1 below). Mortgagor shall
not commit, permit, or suffer any waste, strip, or deterioration of the
Mortgaged Property.
I.8 Liens. Mortgagor shall pay when due all claims for labor,
materials, or supplies that if unpaid might become a lien on all or any portion
of the Mortgaged Property. Mortgagor shall not create, suffer, or permit to be
created, any mortgage, deed of trust, lien, security interest, charge, or
encumbrance upon the Mortgaged Property prior to, on a parity with, or
subordinate to the lien of this Mortgage, except as specifically provided in
Exhibit 2.
I.9 Impositions.
(1) Mortgagor shall pay or cause to be paid, when due and before any
fine, penalty, interest, or cost attaches, all taxes, assessments, fees, levies,
and all other governmental and nongovernmental charges of every nature now or
hereafter assessed or levied against any part of the Mortgaged Property
(including, without limitation, levies or charges resulting from Covenants), or
on the lien or estate of Mortgagee (collectively, the "Impositions"); provided,
however, that if by law any such Imposition may be paid in installments, whether
or not interest shall accrue on the unpaid balance, Mortgagor may pay the same
in installments, together with accrued interest on the unpaid balance, as the
same become due, before any fine, penalty, or cost attaches.
(2) Mortgagor may, at its expense and after prior notice to
Mortgagee, contest by appropriate legal, administrative, or other proceedings
conducted in good faith and with due diligence, the amount, validity, or
application, in whole or in part, of any Imposition or lien on the Mortgaged
Property or any claim of any laborer, materialman, supplier, or vendor or lien,
and may withhold payment of the same pending completion of such proceedings if
permitted by law, provided that (a) such proceedings shall suspend collection
from the Mortgaged Property; (b) no part of or interest in the Mortgaged
Property will be sold, forfeited, or lost if Mortgagor pays the amount or
satisfies the condition being contested, and Mortgagor would have the
opportunity to do so in the event of Mortgagor3s failure to prevail in the
contest; (c) neither Mortgagee nor Mortgagor shall, by virtue of such permitted
contest, be exposed to any risk of liability for which Mortgagor has not
furnished additional security as provided in clause (d) below; and (d) Mortgagor
shall have furnished to Mortgagee cash, corporate surety bond, or other
additional security in respect of the claim being contested or the loss or
damage that may result from Mortgagor3s failure to prevail in such contest in an
amount sufficient to discharge the Imposition and all interest, costs, attorney
fees, and other charges that may accrue in connection with the Imposition.
Mortgagor shall promptly satisfy any final judgment.
(3) Mortgagor shall furnish to Mortgagee, promptly upon request,
satisfactory evidence of the payment of all Impositions. Mortgagee is hereby
authorized to request and receive from the responsible governmental and
nongovernmental personnel written statements with respect to the accrual and
payment of all Impositions.
I.10 Books and Records; Inspection of the Property. Mortgagor shall
keep complete and accurate records and books of account with respect to the
Mortgaged Property and its operation in accordance with generally accepted
accounting principles consistently applied. Mortgagor shall permit Mortgagee and
its authorized representatives to enter and inspect the Property and the
Improvements, and to examine and make copies or extracts of the records and
books of account of the Mortgagor with respect to the Property and the
Improvements, all at such reasonable times as Mortgagee may choose.
I.11 Limitations of Use. Mortgagor shall not initiate, join in, or
consent to any rezoning of the Property or any change in any Covenant or other
public or private restrictions limiting or defining the uses that may be made of
all or any part of the Property and the Improvements without the prior written
consent of Mortgagee.
I.12 Insurance.
(1) Property and Other Insurance. Mortgagor shall maintain for the
benefit of Mortgagee, during the life of this Mortgage, insurance policies,
insuring the Mortgaged Property against all insurable hazards, casualties and
contingencies (including, without limitation, loss of rentals or business
interruption), as Mortgagee may require (it being agreed that Mortgagee shall
not require any insurance not customarily required by other lenders in similar
loan transactions in Broward County, Florida), and shall pay promptly when due
any premiums on such insurance policies and on any renewals thereof. Without
limiting the generality of the foregoing, Mortgagor shall maintain insurance
policies as provided in the Credit Agreement among Wells Fargo Bank, National
Association ("WFB"), Mortgagor, Borrower, Williams and others (the "Credit
Agreement"), and the terms of the Credit Agreement relating to insurance are
incorporated herein by this reference.
(2) Insurance Proceeds. All proceeds from any insurance on the
Mortgaged Property shall be used in accordance with the provisions of Section
1.14.
I.13 Assignments of Policies upon Foreclosure. In the event of
foreclosure of the lien of this Mortgage or other transfer of title, or
assignment of the Mortgaged Property in whole or in part, all right, title, and
interest of Mortgagor in and to all policies of insurance procured under Section
1.12 shall inure to the benefit of and pass to the successors in interest of
Mortgagor or the purchaser or grantee of all or any part of the Mortgaged
Property.
I.14 Casualty/Loss Restoration.
(1) After the occurrence of any casualty to the Property, whether or
not required to be insured against as provided in this Mortgage, Mortgagor shall
give prompt written notice of the casualty to Mortgagee, specifically describing
the nature and cause of such casualty and the extent of the damage or
destruction to the Mortgaged Property. Mortgagee may make proof of loss if it is
not made promptly and to Mortgagee3s satisfaction by Mortgagor.
(2) Subject to the rights of any superior mortgagee or trust deed
beneficiary as provided in Section 6.8 below, Mortgagor assigns to Mortgagee all
insurance proceeds that Mortgagor may be entitled to receive with respect to any
casualty. All insurance proceeds shall be held by Mortgagee as collateral to
secure performance of the Obligations secured by this Mortgage, provided that
Mortgagor is not in default under this Mortgage, Mortgagee shall permit such
amounts of the insurance proceeds to be used by Mortgagor for repair or
restoration of the Improvements (subject to reasonable disbursement procedures
established by Mortgagee) if Mortgagor can demonstrate, to Mortgagee3s
reasonable satisfaction, that subsequent to such repair or restoration, the
Mortgaged Property shall have a value not less than the value of the property
immediately prior to the casualty. Any excess insurance proceeds shall be
applied by Mortgagee toward payment of all or part of the indebtedness secured
by this Mortgage in such order as Mortgagee may determine.
I.15 Actions to Protect Mortgaged Property; Reserves.
(1) If Mortgagor shall fail to obtain the insurance required by
Section 1.12, make the payments required by Section 1.9 (other than payments
that Mortgagor is contesting in accordance with Section 1.9(2)), or perform or
observe any of its other covenants or agreements under this Mortgage, Mortgagee
may, without obligation to do so, obtain or pay the same or take other action
that it deems appropriate to remedy such failure. All sums, including reasonable
attorney fees, so expended or expended to maintain the lien or estate of this
Mortgage or its priority, or to protect or enforce any of Mortgagee3s rights, or
to recover any indebtedness secured by this Mortgage, shall be a lien on the
Mortgaged Property, shall be secured by this Mortgage, and shall be paid by
Mortgagor upon demand, together with interest at the rate provided in the Note.
No payment or other action by Mortgagee under this section shall impair any
other right or remedy available to Mortgagee or constitute a waiver of any
default. The following notice is given pursuant to ORS 746.201:
WARNING
Unless Mortgagor provides Mortgagee with evidence of the insurance
coverage as required herein, Mortgagee may purchase insurance at
Mortgagor3s expense to protect Mortgagee3s interest. This insurance may,
but need not, also protect Mortgagor3s interest. If the collateral becomes
damaged, the coverage Mortgagee purchases may not pay any claim Mortgagor
makes or any claim made against Mortgagor. Mortgagor may later cancel this
coverage by providing evidence that Mortgagor has obtained property
coverage elsewhere.
Mortgagor is responsible for the cost of any insurance purchased by
Mortgagee. The cost of this insurance may be added to the indebtedness
secured hereby. If the cost is added to the indebtedness secured hereby,
the interest rate on the indebtedness secured hereby will apply to this
added amount. The effective date of coverage may be the date your prior
coverage lapsed or the date you failed to provide proof of coverage.
The coverage Mortgagee purchases may be considerably more expensive
than insurance Mortgagor can obtain on Mortgagor3s own and may not satisfy
any need for property damage coverage or any mandatory liability insurance
requirements imposed by applicable law.
(2) If Mortgagor fails to promptly perform any of its obligations
under Section 1.9 or 1.12 of this Mortgage, Mortgagee may require Mortgagor
thereafter to pay and maintain with Mortgagee reserves for payment of such
obligations. In that event, Mortgagor shall pay to Mortgagee each month a sum
estimated by Mortgagee to be sufficient to produce, at least 20 days before due,
an amount equal to the Impositions and/or insurance premiums. If the sums so
paid are insufficient to satisfy any Imposition or insurance premium when due,
Mortgagor shall pay any deficiency to Mortgagee upon demand. The reserves may be
commingled with Mortgagee3s other funds, and Mortgagee shall not be required to
pay interest to Mortgagor on such reserves. Mortgagee shall not hold the reserve
in trust for Mortgagor, and Mortgagee shall not be the agent of Mortgagor for
payment of the taxes and assessments required to be paid by Mortgagor.
I.16 Estoppel Certificates. Mortgagor, within five days of
Mortgagee3s request, shall furnish Mortgagee a written statement, duly
acknowledged, of the amount of the Obligations secured by this Mortgage and
whether any offsets or defenses exist against such Obligations. If Mortgagor
shall fail to furnish such a statement within the time allowed, Mortgagee shall
be authorized, as Mortgagor3s attorney-in-fact, to execute and deliver such
statement. Upon request, Mortgagor shall also use its best efforts to obtain and
deliver to Mortgagee a written certificate from each lessee of all or any
portion of the Property that its lease is in effect, that there are no defaults
by the lessor under the lease, and that rent is not paid more than 30 days in
advance.
1.17 Title Insurance. Prior to or contemporaneously with the
execution of this Mortgage, Mortgagor will provide Mortgagee a mortgagee's
policy of title insurance (extended coverage) in the amount of $2,100,000,
issued by an insurer reasonably satisfactory to Mortgagee and in a form
reasonably satisfactory to Mortgagee, insuring the validity and priority of
Mortgagee's lien against the Mortgaged Property arising by virtue of this
Mortgage, subject only to standard preprinted exceptions and the matters
identified in Exhibit 2 to this Mortgage. Mortgagor shall pay for the title
insurance policy described in the preceding sentence.
ARTICLE II
Condemnation
II.1 Condemnation
(1) Should any part of or interest in the Mortgaged Property be
taken or damaged by reason of any public improvement, eminent domain,
condemnation proceeding, or in any similar manner (a "Condemnation"), or should
Mortgagor receive any notice or other information regarding such action,
Mortgagor shall give immediate notice of such action to Mortgagee.
(2) Subject to the rights of any superior mortgagee or trust deed
beneficiary as provided in Section 6.8 below, Mortgagee shall be entitled to all
compensation, awards, and other payments or relief ("Condemnation Proceeds") up
to the full amount of the Obligations, and shall be entitled, at its option, to
commence, appear in, and prosecute any Condemnation proceeding in its own or
Mortgagor3s name and make any compromise or settlement in connection with such
Condemnation. In the event the Mortgaged Property is taken in its entirety by
condemnation, all Obligations secured by this Mortgage, at Mortgagee3s election,
shall become immediately due and collectible.
(3) Mortgagee may, at its sole option, apply the Condemnation
Proceeds to the reduction of the Obligations in such order as Mortgagee may
determine, or apply all or any portion of the Condemnation Proceeds to the cost
of restoring and improving the remaining Mortgaged Property. In the event that
Mortgagee elects to apply the Condemnation Proceeds to restoration and
improvement, the proceeds shall be held by Mortgagee and shall be released only
upon such terms and conditions as Mortgagee shall require in its sole
discretion, including but not limited to prior approval of plans and release of
liens. No Condemnation Proceeds shall be released if Mortgagor is in default
under this Mortgage.
ARTICLE III
Assignment of Leases, Rents, Issues, and Profits
III.1 Assignment. Mortgagor assigns and transfers to Mortgagee (1)
all leases, subleases, licenses, rental contracts, and other agreements, whether
now existing or hereafter arising, and relating to the occupancy or use of all
or any portion of the Mortgaged Property, including all modifications,
extensions, and renewals thereof (the "Leases"), and (2) all rents, revenues,
issues, profits, income, proceeds, and benefits derived from the Mortgaged
Property and the lease, rental, or license of all or any portion thereof,
including but not limited to lease and security deposits (collectively, the
"Rents"). This assignment is intended by Mortgagor and Mortgagee to create a
present and unconditional assignment to Mortgagee, subject only to the license
set forth in Section 3.4 below.
III.2 Rights of Mortgagee. Subject to the provisions of Section 3.4
below giving Mortgagor a revocable, limited license, Mortgagee shall have the
right, power, and authority to:
(1) Notify any and all tenants, renters, licensees, and other
obligors under any of the Leases that the same have been assigned to Mortgagee
and that all Rents are to be paid directly to Mortgagee, whether or not
Mortgagee shall have foreclosed or commenced foreclosure proceedings against the
Mortgaged Property, and whether or not Mortgagee has taken possession of the
Mortgaged Property;
(2) Discount, settle, compromise, release, or extend the time for
payment of, any amounts owing under any of the Leases and any Rents, in whole or
in part, on terms acceptable to Mortgagee;
(3) Collect and enforce payment of Rents and all provisions of the
Leases, and to prosecute any action or proceeding, in the name of Mortgagor or
Mortgagee, with respect to any and all Leases and Rents; and
(4) Exercise any and all other rights and remedies of the lessor in
connection with any of the Leases and Rents.
III.3 Application of Receipts. Mortgagee shall have the right,
power, and authority to use and apply any Rents received under this Mortgage (1)
for the payment of any and all costs and expenses incurred in connection with
enforcing or defending the terms of this assignment or the rights of Mortgagee,
and in collecting any Rents; and (2) for the operation and maintenance of the
Mortgaged Property and the payment of all costs and expenses in connection
therewith, including but not limited to the payment of utilities, taxes,
assessments, governmental charges, and insurance. After the payment of all such
costs and expenses, and after Mortgagee shall have set up such reserves as it
shall deem necessary in its sole discretion for the proper management of the
Mortgaged Property, Mortgagee shall apply all remaining Rents collected and
received by it to the reduction of the Obligations in such order as Mortgagee
shall determine. The exercise or failure by Mortgagee to exercise any of the
rights or powers granted in this assignment shall not constitute a waiver of
default by Mortgagor under this Mortgage, the Note, or any of the other Loan
Documents.
III.4 License. Mortgagee hereby grants to Mortgagor a revocable
license to collect and receive the Rents. Such license may be revoked by
Mortgagee, without notice to Mortgagor, upon the occurrence of any event of
default under this Mortgage, including any default by Mortgagor of its covenants
in this Article III. Unless and until such license is revoked, Mortgagor agrees
to apply the proceeds of Rents to the payment of the Obligations and to the
payment of taxes, assessments, governmental charges, insurance premiums, and
other obligations in connection with the Mortgaged Property, and to the
maintenance of the Mortgaged Property, before using such proceeds for any other
purpose. Mortgagor agrees to (1) observe and perform every obligation of
Mortgagor under the Leases; (2) enforce or secure at its expense the performance
of every obligation to be performed by any lessee or other party under the
Leases; (3) promptly give notice to Mortgagee of any default by any such lessee
or other party under any of the Leases, and promptly provide Mortgagee a copy of
any notice of default given to any such lessee or other party; (4) not collect
any Rents more than 30 days in advance of the time when the same shall become
due, or anticipate any other payments under the Leases, except for bona fide
security deposits not in excess of an amount equal to two months3 rent; (5) not
further assign or hypothecate any of the Leases or Rents; (6) except with
Mortgagee3s prior written consent, not waive, release, or in any other manner
discharge any lessee or other party from any of its obligations under any of the
Leases; (7) except with Mortgagee3s prior written consent, not modify or amend
any of the Leases; (8) except with Mortgagee3s prior written consent, not
cancel, terminate, or accept surrender of any of the Leases unless Mortgagor
shall have entered into a Lease for the space to be vacated on terms at least as
favorable to Mortgagor, commencing within 30 days after such cancellation,
termination, or surrender; (9) obtain Mortgagee3s prior written approval as to
the form and content of all future leases and any modifications of any present
or future leases; (10) deliver copies of all present and future leases to
Mortgagee promptly; and (11) appear in and defend, at Mortgagor3s sole cost and
expense, any action or proceeding arising out of or in connection with the
Leases or the Rents.
III.5 Limitation of Mortgagee3s Obligations. Notwithstanding the
assignment provided for in this Article III, Mortgagee shall not be obligated to
perform or discharge, and Mortgagee does not undertake to perform or discharge,
any obligation or liability with respect to the Leases or the Rents. This
assignment shall not operate to place responsibility for the control, care,
maintenance, or repair of the Mortgaged Property upon Mortgagee, or to make
Mortgagee responsible for any condition of the Property. Mortgagee shall be
accountable to Mortgagor only for the sums actually collected and received by
Mortgagee pursuant to this assignment. Mortgagor shall hold Mortgagee fully
harmless from, indemnify Mortgagee for, and defend Mortgagee against any and all
claims, demands, liabilities, losses, damages, and expenses, including attorney
fees, arising out of any of the Leases, with respect to any of the Rents, or in
connection with any claim that may be asserted against Mortgagee on account of
this assignment or any obligation or undertaking alleged to arise therefrom.
III.6 Termination. The assignment provided for in this Article III
shall continue in full force and effect until all the Obligations have been
fully paid and satisfied. At such time, this assignment and the authority and
powers herein granted by Mortgagor to Mortgagee shall cease and terminate.
III.7 Attorney-in-Fact. Mortgagor irrevocably constitutes and
appoints Mortgagee, and each of its officers, as its true and lawfully
attorney-in-fact, with power of substitution, to undertake and execute any and
all of the rights, powers, and authorities described in this Article III with
the same force and effect as if undertaken or performed by Mortgagor, and
Mortgagor ratifies and confirms any and all such actions that may be taken or
omitted to be taken by Mortgagee, its employees, agents, and attorneys.
ARTICLE IV
Security Agreement and Fixture Filing
4.1 Security Agreement. To secure the Obligations, Mortgagor grants
to Mortgagee a security interest in the following: (1) the Mortgaged Property to
the extent the same is not encumbered by this Mortgage as a real estate lien;
(2) all personal property that is used or will be used in the construction of
any Improvements on the Mortgaged Property; (3) all personal property that is
now or will hereafter be placed on or in the Mortgaged Property or Improvements;
(4) all personal property that is derived from or used in connection with the
use, occupancy, or enjoyment of the Mortgaged Property; (5) all property defined
in the Uniform Commercial Code as adopted in the state of Oregon, as accounts,
equipment, fixtures, and general intangibles, to the extent the same are used
at, or arise in connection with the ownership, maintenance, or operation of, the
Mortgaged Property; (6) all causes of action, claims, security deposits, advance
rental payments, utility deposits, refunds of fees or deposits paid to any
governmental authority, refunds of taxes, and refunds of insurance premiums
relating to the Mortgaged Property; and (7) all present and future attachments,
accessions, amendments, replacements, additions, products, and proceeds of every
nature of the foregoing. This Mortgage shall constitute a security agreement and
"fixture filing" under the Uniform Commercial Code of the states of Oregon and
Florida. The mailing address of Mortgagor and the address of Mortgagee from
which information may be obtained are set forth in the introductory paragraph of
this Mortgage.
ARTICLE V
Events of Default; Remedies
V.1 Events of Default. Each of the following shall constitute an
event of default under this Mortgage and under each of the other Loan Documents:
(1) Nonpayment. Failure of Mortgagor (or Borrower, as
applicable) to pay any of the Obligations on or before the due date thereof.
(2) Breach of Other Covenants. Failure of Mortgagor or
Borrower to perform or abide by any other covenant included in the Loan
Documents.
(3) Misinformation. Falsity when made in any material respect of any
representation, warranty, or information furnished by Mortgagor, Borrower, or
their agents to Mortgagee in or in connection with any of the Obligations.
(4) Other Default. The occurrence of any other event of
default under the Note or any of the other Loan Documents.
(5) Other Indebtedness. Mortgagor3s default beyond the applicable
grace periods in the payment of any other indebtedness owed by Mortgagor to any
person, if such indebtedness is secured by all or any portion of the Mortgaged
Property.
(6) Bankruptcy. The occurrence of any of the following with respect
to Mortgagor, Borrower, any guarantor of the Obligations, or the then-owner of
the Mortgaged Property: (a) appointment of a receiver, liquidator, or trustee
for any such party or any of its properties; (b) adjudication as a bankrupt or
insolvent; (c) filing of any petition by or against any such party under any
state or federal bankruptcy, reorganization, moratorium or insolvency law; (d)
institution of any proceeding for dissolution or liquidation; (e) inability to
pay debts when due; (f) any general assignment for the benefit of creditors; or
(g) abandonment of the Mortgaged Property.
(7) Transfer; Due-on-Sale; Due-on-Encumbrance. Any sale, gift,
conveyance, contract for conveyance, transfer, assignment, encumbrance, pledge,
or grant of a security interest in all or any part of the Mortgaged Property, or
any interest therein, either voluntarily, involuntarily, or by the operation of
law (a "Transfer"), without Mortgagee3s prior written consent, shall constitute
an event of default. For the purpose of clarification, and without limiting the
generality of the foregoing, the occurrence at any time of any sale, conveyance,
assignment, or other transfer of, or the grant of a pledge of or security
interest in, any shares of the capital stock of Mortgagor shall be deemed to be
a Transfer in violation of this paragraph. The provisions of this subsection (7)
shall apply to each and every Transfer, regardless of whether or not Mortgagee
has consented or waived its rights in connection with any previous Transfer.
Mortgagee may attach such conditions to its consent under this subsection (7) as
Mortgagee may determine in its sole discretion, including without limitation an
increase in the interest rate or the payment of transfer or assumption fees, and
the payment of administrative and legal fees and costs incurred by Mortgagee.
(8) Certain Taxes. For purposes of this subsection (8), State
Tax shall mean:
(a) A specific tax on mortgages, secured indebtedness, or any part
of the Obligations secured by this Mortgage.
(b) A specific tax on the mortgagor of property subject to a
mortgage that the taxpayer is authorized or required to deduct from
payments on the mortgage.
(c) A tax on property chargeable against Mortgagee under a mortgage
or holder of the note secured by the mortgage.
(d) A specific tax (other than an income tax or a gross receipts
tax) on all or any portion of the Obligations or on payments of principal
and interest made by Mortgagor.
If any State Tax is enacted after the date of this Mortgage
applicable to this Mortgage, enactment of the State Tax shall constitute an
event of default, unless the following conditions are met:
(a) Mortgagor may lawfully pay the tax or charge imposed by the
State Tax without causing any resulting economic disadvantage or
increase of tax to Mortgagee, and
(b) Mortgagor pays or agrees in writing to pay the tax or charge
within 30 days after notice from Mortgagee that the State Tax has been
enacted.
V.2 Remedies in Case of Default. If an Event of Default shall occur,
Mortgagee may exercise any one or more of the following rights and remedies, in
addition to any other remedies that may be available by law, in equity, or
otherwise:
(1) Acceleration. Mortgagee may declare all or any portion of
the Obligations immediately due and payable in accordance with the provisions
of the Note.
(2) Receiver. Mortgagee may have a receiver appointed for the
Mortgaged Property. Mortgagee shall be entitled to the appointment of a receiver
as a matter of right whether or not the value of the Mortgaged Property exceeds
the amount of the indebtedness secured by this Mortgage. Employment by Mortgagee
shall not disqualify a person from serving as receiver. Mortgagor consents to
the appointment of a receiver at Mortgagee3s option and waives any and all
defenses to such an appointment.
(3) Possession. Mortgagee may, either through a receiver or as
lender-in-possession, enter and take possession of all or any part of the
Mortgaged Property and use, operate, manage, and control it as Mortgagee shall
deem appropriate in its sole discretion. Upon request after an Event of Default,
Mortgagor shall peacefully relinquish possession and control of the Mortgaged
Property to Mortgagee or any receiver appointed under this Mortgage.
(4) Rents. Mortgagee may revoke Mortgagor3s right to collect the
Rents, and may, either itself or through a receiver, collect the same. Mortgagee
shall not be deemed to be in possession of the Property solely by reason of
exercise of the rights contained in this subsection (4). If Rents are collected
by Mortgagee under this subsection (4), Mortgagor hereby irrevocably appoints
Mortgagee as Mortgagor3s attorney-in-fact, with power of substitution, to
endorse instruments received in payment thereof in the name of Mortgagor and to
negotiate such instruments and collect their proceeds. After payment of all
Obligations, any remaining amounts shall be paid to Mortgagor and this power
shall terminate.
(5) Foreclosure. Mortgagee may judicially foreclose this Mortgage
and obtain a judgment foreclosing Mortgagor3s interest in all or any part of the
Property and giving Mortgagee the right to collect any deficiency remaining due
after disposition of the Mortgaged Property.
(6) Fixtures and Personal Property. With respect to any Improvements
and other personal property subject to a security interest in favor of
Mortgagee, Mortgagee may exercise any and all of the rights and remedies of a
secured party under the Uniform Commercial Code.
(7) Abandonment. Mortgagee may abandon all or any portion of
the Mortgaged Property by written notice to Mortgagor.
V.3 Sale. In any sale under this Mortgage or pursuant to any
judgment, the Mortgaged Property, to the extent permitted by law, may be sold as
an entirety or in one or more parcels and in such order as Mortgagee may elect,
without regard to the right of Mortgagor, any person claiming under Mortgagor,
or any guarantor or surety to the marshalling of assets. The purchaser at any
such sale shall take title to the Mortgaged Property or the part thereof so
sold, free and clear of the estate of Mortgagor, the purchaser being hereby
discharged from all liability to see to the application of the purchase money.
Any person, including Mortgagee, its officers, agents, and employees, may
purchase at any such sale. Mortgagee and each of its officers are irrevocably
appointed Mortgagor3s attorney-in-fact, with power of substitution, to make all
appropriate transfers and deliveries of the Mortgaged Property or any portions
thereof so sold and, for that purpose, Mortgagee and its officers may execute
all appropriate instruments of transfer. Nevertheless, Mortgagor shall ratify
and confirm, or cause to be ratified and confirmed, any such sale or sales by
executing and delivering, or by causing to be executed and delivered, to
Mortgagee or to such purchaser or purchasers all such instruments as may be
advisable, in the judgment of Mortgagee, for such purpose.
V.4 Cumulative Remedies. All remedies under this Mortgage are
cumulative and not exclusive. Any election to pursue one remedy shall not
preclude the exercise of any other remedy. An election by Mortgagee to cure
under Section 1.15 of this Mortgage shall not constitute a waiver of the default
or of any of the remedies provided in this Mortgage. No delay or omission in
exercising any right or remedy shall impair the full exercise of that or any
other right or remedy or constitute a waiver of the default.
V.5 Receiver. Upon taking possession of all or any part of the
Mortgaged Property, Mortgagee or a receiver may:
(1) Management. Use, operate, manage, control, and conduct business
with the Mortgaged Property and make expenditures for such purposes and for such
maintenance and improvements as are deemed reasonably necessary.
(2) Rents and Revenues. Collect all rents, revenues, income, issues,
and profits from the Mortgaged Property and apply such sums to the reasonable
expenses of use, operation, management, maintenance, and improvements.
(3) Construction. At its option, complete any construction in
progress on the Property, and in that connection pay bills, borrow funds, employ
contractors, and make any changes in plans and specifications as it deems
appropriate.
(4) Additional Indebtedness. If the revenues produced by the
Mortgaged Property are insufficient to pay expenses, Mortgagee or the receiver
may borrow or advance such sums upon such terms as it deems reasonably necessary
for the purposes stated in this section. All advances shall bear interest,
unless otherwise provided, at the rate set forth in the Note, and repayment of
such sums shall be secured by this Mortgage.
V.6 Application of Proceeds. All proceeds realized from the exercise
of the rights and remedies under this Section 5 shall be applied as follows:
(1) Costs and Expenses. To pay all costs of exercising such rights
and remedies, including the costs of maintaining and preserving the Mortgaged
Property, the costs and expenses of any receiver or lender-in-possession, the
costs of any sale, and the costs and expenses provided for in Section 6.5 below.
(2) Indebtedness. To pay all Obligations, in such order as
Mortgagee shall determine in its sole discretion.
(3) Surplus. The surplus, if any, remaining after satisfaction of
all the Obligations shall be paid to the clerk of the court in the case of a
judicial foreclosure proceeding, otherwise to the person or persons legally
entitled to the surplus.
V.7 Deficiency. No sale or other disposition of all or any part of
the Mortgaged Property pursuant to this Section 5 shall be deemed to relieve
Mortgagor of any of the Obligations, except to the extent that the proceeds are
applied to the payment of such Obligations. If the proceeds of a sale, a
collection, or other realization of or upon the Mortgaged Property are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Obligations, Mortgagor shall remain liable for any deficiency to
the fullest extent permitted by law.
V.8 Waiver of Stay, Extension, Moratorium, and Valuation Laws. To
the fullest extent permitted by law, Mortgagor waives the benefit of any
existing or future stay, extension, or moratorium law that may affect observance
or performance of the provisions of this Mortgage and any existing or future law
providing for the valuation or appraisal of the Mortgaged Property prior to any
sale.
ARTICLE VI
General Provisions
VI.1 Time is of the Essence. Time is of the essence with respect to
all covenants and obligations of Mortgagor under this Mortgage.
VI.2 Notice. Except as otherwise provided in this Mortgage, all
notices pertaining to this Mortgage shall be in writing and may be delivered by
hand, or mailed by first class, registered, or certified mail, return-receipt
requested, postage prepaid, and addressed to the appropriate party at its
address set forth at the outset of this Mortgage. Any party may change its
address for such notices from time to time by notice to the other parties.
Notices given by mail in accordance with this paragraph shall be deemed to have
been given upon the date of mailing; notices given by hand shall be deemed to
have been given when actually received.
VI.3 Mortgage Binding on Successors and Assigns. This Mortgage shall
be binding upon and inure to the benefit of the successors and assigns of
Mortgagor and Mortgagee. If the Trust Estate or any portion thereof shall at any
time be vested in any person other than Mortgagor, Mortgagee shall have the
right to deal with such successor regarding this Mortgage, the Mortgaged
Property, and the Obligations in such manner as Mortgagee deems appropriate in
its sole discretion, without notice to or approval by Mortgagor and without
impairing Mortgagor3s liability for the Obligations.
VI.4 Indemnity. Mortgagor shall hold Mortgagee, and its directors,
officers, employees, agents, and attorneys, harmless from and indemnify them for
any and all claims, demands, damages, liabilities, and expenses, including but
not limited to attorney fees and court costs, arising out of or in connection
with Mortgagee3s interest under this Mortgage, except Mortgagor shall not be
liable for acts performed by Mortgagee in violation of applicable law.
VI.5 Expenses and Attorney Fees. If Mortgagee refers any of the
Obligations to an attorney for collection or seeks legal advice following a
default; if Mortgagee is the prevailing party in any litigation instituted in
connection with any of the Obligations; or if Mortgagee or any other person
initiates any judicial or nonjudicial action, suit, or proceeding in connection
with any of the Obligations or the Mortgaged Property (including but not limited
to proceedings under federal bankruptcy law, eminent domain, under probate
proceedings, or in connection with any state or federal tax lien), and an
attorney is employed by Mortgagee to (1) appear in any such action, suit, or
proceeding, or (2) reclaim, seek relief from a judicial or statutory stay,
sequester, protect, preserve, or enforce Mortgagee3s interests, then in any such
event Mortgagor shall pay reasonable attorney fees, costs, and expenses incurred
by Mortgagee or its attorney in connection with the above-mentioned events or
any appeals related to such events, including but not limited to costs incurred
in searching records, the cost of title reports, and the cost of surveyors3
reports. Such amounts shall be secured by this Mortgage and, if not paid upon
demand, shall bear interest at the rate specified in the Note.
VI.6 Applicable Law. The Mortgage and the validity, interpretation,
performance, and enforcement of the Mortgage shall be governed by the laws of
the state of Florida.
VI.7 Captions. The captions to the sections and paragraphs of this
Mortgage are included only for the convenience of the parties and shall not have
the effect of defining, diminishing, or enlarging the rights of the parties or
affecting the construction or interpretation of any portion of this Mortgage.
VI.8 Rights of Prior Mortgagee. In the event that all or any portion
of the Mortgaged Property is subject to a superior mortgage or trust deed
specifically permitted under Exhibit 2, the rights of Mortgagee with respect to
insurance and condemnation proceeds as provided in Sections 1.14 and 2.1, and
all other rights granted under this Mortgage that have also been granted to such
a superior mortgagee or trust deed beneficiary, shall be subject to the rights
of the superior mortgagee or trust deed beneficiary. Mortgagor hereby authorizes
all such superior mortgagees and beneficiaries, on satisfaction of the
indebtedness secured by their mortgage or trust deed to remit all remaining
insurance or Condemnation proceeds and all other sums held by them to Mortgagee
to be applied in accordance with this Mortgage.
VI.9 "Person" Defined. As used in this Mortgage, the word "person"
shall mean any natural person, partnership, trust, corporation, limited
liability company, or other legal entity of any nature.
VI.10 Severability. If any provision of this Mortgage shall be held
to be invalid, illegal, or unenforceable, such invalidity, illegality, or
unenforceability shall not affect any other provisions of this Mortgage, and
such other provisions shall be construed as if the invalid, illegal, or
unenforceable provision had never been contained in the Mortgage.
VI.11 Entire Agreement. This Mortgage contains the entire agreement
of the parties with respect to the Mortgaged Property. No prior agreement,
statement, or promise made by any party to this Mortgage that is not contained
herein shall be binding or valid.
VI.12 Commercial Property. Mortgagor covenants and warrants that the
Property and Improvements are used by Mortgagor exclusively for business and
commercial purposes. Mortgagor also covenants and warrants that the Property and
Improvements are not now, and at no time in the future will be, occupied as the
principal residence of Mortgagor, Mortgagor3s spouse, or Mortgagor3s minor or
dependent child.
VI.13 Standard for Discretion. In the event this Mortgage is silent
on the standard for any consent, approval, determination, or similar
discretionary action, the standard shall be sole and unfettered discretion as
opposed to any standard of good faith, fairness, or reasonableness.
<PAGE>
VI.14 Interpretation. In the event of any conflict between the terms
of this Mortgage and the terms of the Intercreditor Agreement of even date
herewith among Mortgagee, WFB, Mortgagor, Borrower, Williams, and others (the
"Intercreditor Agreement"), the terms of the Intercreditor Agreement shall
control.
VI.15 ORS 93.040 Warning. THIS INSTRUMENT WILL NOT ALLOW USE OF THE
PROPERTY DESCRIBED IN THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS
AND REGULATIONS. BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE PERSON
ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE APPROPRIATE CITY OR
COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED USES AND TO DETERMINE ANY LIMITS
ON LAWSUITS AGAINST FARMING OR FOREST PRACTICES AS DEFINED IN ORS 30.930.
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage, Assignment
of Rents, Security Agreement, and Fixture Filing, effective as of the date first
set forth above.
SIGNED IN THE PRESENCE OF: APTEK WILLIAMS, INC., a Delaware
corporation
(Signature) By:
Thomas W. Itin
(Printed Name) President and Chief
Executive Officer
(Signature)
(Printed Name)
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of
July, 1997, by Thomas W. Itin, as President and Chief Executive Officer of APTEK
WILLIAMS, INC., a Delaware corporation, on behalf of the corporation, who is
personally known to me (or has produced a
(state) driver3s license
no. as identification).
My Commission Expires:
Notary Public (Signature)
(AFFIX NOTARY SEAL)
(Printed Name)
(Title or Rank)
(Serial Number, if any)
GUARANTY
1. CONTINUING GUARANTY. For good and valuable consideration, Thomas
W. Itin ("Guarantor") absolutely and unconditionally guarantees to United States
National Bank of Oregon ("Bank") and its successors and assigns, the full and
prompt payment and performance of each and every payment obligation of Ajay
Sports, Inc. ("Borrower"), under the promissory note in the amount of $2,340,000
dated as of July 14, 1997 (the "Note"), between Borrower and Bank, and all
liabilities, direct or contingent, joint, several, or independent arising out of
or in conjunction therewith, including interest, reasonable attorney fees, and
other costs and expenses paid or incurred by Bank in enforcing its rights under
the Note (the "Indebtedness"). Notwithstanding anything to the contrary in this
Guaranty, the liability of Guarantor under this Guaranty shall not exceed the
principal sum of $1,000,000, but shall include amounts in excess of such sum for
accrued interest on any such sum due hereunder (calculated at the rate of
interest in effect under the Note at the time in question) after demand and for
expenses due pursuant to Section 9(d) of this Guaranty. Furthermore,
notwithstanding anything in this Guaranty to the contrary, Bank may not proceed
hereunder against Guarantor unless Borrower fails to make a payment required by
the Note, Bank gives Borrower and Guarantor written notice of Borrower's failure
to make such payment, and the payment is not received by Bank within 30 days of
the date of such written notice. Bank agrees that it shall not accelerate
Borrower's obligations under the Note following the first uncured payment
default thereunder, but may do so immediately after any subsequent uncured
payment default. The fact that Bank may accelerate Borrower's obligations under
the Note only in accordance with the preceding sentence does not preclude Bank
from proceeding against Guarantor before accelerating Borrower's obligations
under the Note with respect to any payment or payments that Borrower failed to
make as required by the Note on the terms and conditions set forth in this
Guaranty.
2. NATURE OF GUARANTY. Guarantor's liability under this Guaranty
shall be open and continuous for so long as this Guaranty remains in force.
Guarantor intends to guarantee at all times the performance and prompt payment
when due, whether at maturity or earlier by reason of acceleration, of all
Indebtedness (provided, however, that Guarantor's liability hereunder is subject
to the limitations specified in paragraph 1 of this Guaranty). No payments made
upon the Indebtedness will discharge or diminish the continuing liability of
Guarantor in connection with any remaining portions of the Indebtedness, or any
of the Indebtedness that subsequently arises or is thereafter incurred or
contracted (provided, however, that Guarantor's liability hereunder is subject
to the limitations specified in paragraph 1 of this Guaranty).
3. DURATION OF GUARANTY. This Guaranty will take effect on the date
hereof without the necessity of any acceptance by Bank, or any notice to
Guarantor or to Borrower, and will continue in full force until the earlier of
(a) such time that all Indebtedness shall have been fully and finally paid and
satisfied, or (b) such time that Guarantor shall have paid the maximum
limitation on his obligation hereunder specified in paragraph 1 of this
Guaranty. Release of any other guarantor or termination of any other guaranty of
the Indebtedness shall not affect the liability of Guarantor under this
Guaranty.
4. GUARANTOR'S AUTHORIZATION TO BANK. Guarantor authorizes Bank,
without notice or demand and without lessening Guarantor's liability under this
Guaranty, from time to time: (a) to alter, compromise, renew, extend,
accelerate, or otherwise change the time for payment or other terms of the
Indebtedness or any part of the Indebtedness, including but not limited to
increases and decreases of the rate of interest on the Indebtedness and
extensions that may be repeated and may be for longer than the original loan
term; (b) to take and hold security for the payment of this Guaranty or the
Indebtedness, and exchange, enforce, waive, fail or decide not to perfect, and
release any such security, with or without the substitution of new collateral;
(c) to release, substitute, agree not to sue, or deal with any one or more of
Borrower's sureties, endorsers, or other guarantors on any terms or in any
manner Bank may choose; (d) to determine how, when and what application of
payments and credits shall be made on the Indebtedness; (e) to apply such
security and direct the order or manner of sale thereof, including without
limitation, any nonjudicial sale permitted by the terms of the controlling
security agreement, mortgage or deed of trust, as Bank may determine; (f) to
sell, transfer, assign, or grant participations in all or any part of the
Indebtedness to a bank, a financial institution, an insurance company, an
institutional lender, or an institutional investor; and (g) to assign or
transfer this Guaranty in whole or in part to a bank, a financial institution,
an insurance company, an institutional lender, or an institutional investor.
5. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents
and warrants that (a) no representations or agreements of any kind have been
made to Guarantor by Bank that would limit or qualify in any way the terms of
this Guaranty; (b) until the Indebtedness is repaid in full, on and after the
date of this Guaranty Guarantor will not, without the prior written consent of
Bank, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose
of all or substantially all of Guarantor's assets; (c) Guarantor will provide to
Bank such financial and credit information as may be requested by Bank, and such
financial information provided will be true and correct in all material respects
and will fairly present the financial condition of Guarantor as of the dates
thereof; and (d) Guarantor has adequate means of obtaining from Borrower on a
continuing basis information regarding Borrower's financial condition. Guarantor
agrees to keep adequately informed from such means of any facts, events, or
circumstances that might in any way affect Guarantor's risks under this
Guaranty, and Guarantor further agrees that Bank shall have no obligation to
disclose to Guarantor any information or documents acquired by Bank in the
course of its relationship with Borrower.
6. GUARANTOR'S WAIVERS. Except as prohibited by applicable law,
Guarantor waives any right to require Bank (a) to continue lending money or to
extend other credit to Borrower; (b) to make any presentment, protest, demand,
or notice of any kind, including notice of any nonpayment of the Indebtedness
(except as specified in the third sentence of paragraph 1 of this Guaranty) or
of any nonpayment related to any collateral, or notice of any action or
nonaction on the part of Borrower, Bank, or any surety, endorser, or other
guarantor in connection with the Indebtedness, or in connection with the
creation of new or additional loans or obligations; (c) to resort for payment or
to proceed directly or immediately against any person, including Borrower or any
other guarantor; (d) to proceed directly against or exhaust any collateral held
by Bank from Borrower, any other guarantor, or any other person; (e) to
marshall, or otherwise proceed against collateral in any particular order; or
(f) to pursue any other remedy within the power of Bank.
Guarantor also waives any and all rights or defenses arising by
reason of (a) any "one action" or "anti-deficiency" law or any other law that
may prevent Bank from bringing any action, including a claim for deficiency,
against Guarantor, before or after the commencement or completion by Bank of any
foreclosure action, either judicially or by exercise of a power of sale; (b) any
election of remedies by Bank that destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement, including without limitation, any loss of rights Guarantor
may suffer by reason of any law limiting, qualifying, or discharging the
Indebtedness; (c) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower's
liability from any cause whatsoever, other than payment in full of the
Indebtedness; (d) any right to claim discharge of the Indebtedness on the basis
of unjustified impairment of any collateral for the Indebtedness; (e) any
statute of limitations, if at any time any action or suit brought by Bank
against Guarantor is commenced there is outstanding Indebtedness of Borrower to
Bank that is not barred by any applicable statute of limitations; and (f) any
defenses given to guarantors at law or in equity other than actual payment of
the Indebtedness. If payment is made by Borrower, whether voluntarily or
otherwise, or by any third party, on the Indebtedness and thereafter Bank is
required to (or in good faith agrees to) remit the amount of that payment to
Borrower's trustee in bankruptcy or to any similar person under any federal or
state bankruptcy law or law for the relief of debtors, the Indebtedness shall be
considered unpaid for the purpose of enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any
time any deductions to the amount guaranteed under this Guaranty for any claim
of setoff, counterclaim, counter demand, recoupment or similar right, whether
such claim, demand, or right may be asserted by Borrower, Guarantor, or both.
7. GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor
warrants and agrees that each of the waivers set forth above is made with
Guarantor's full knowledge of its significance and consequences and that, under
the circumstances, the waivers are reasonable and not contrary to public policy
or law. If any such waiver is determined to be contrary to any applicable law or
public policy, such waiver shall be effective only to the extent permitted by
law or public policy.
8. SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees
that the Indebtedness, whether now existing or hereafter created, shall be prior
to any claim that Guarantor may now have or hereafter acquire against Borrower,
whether or not Borrower becomes insolvent. Guarantor hereby expressly
subordinates any claim Guarantor may have against Borrower (including, but not
limited to, any claim arising out of or resulting from any payment by Guarantor
to Bank hereunder) to any claim that Bank or Wells Fargo Bank, National
Association may now or hereafter have against Borrower. If Guarantor receives
any money or property from Borrower for application to any claim that Guarantor
has or hereafter may have against Borrower, Guarantor will hold such money or
property in trust for Bank and promptly after receipt thereof shall deliver such
money or property to Bank for application to the Indebtedness. In the event of
insolvency and consequent liquidation of the assets of Borrower, through
bankruptcy, by an assignment for the benefit of creditors, by voluntary
liquidation, or otherwise, the assets of Borrower applicable to the payment of
the claims of both Guarantor and Bank shall be paid to Bank and shall be applied
to the Indebtedness. Guarantor hereby assigns to Bank all claims that Guarantor
may have or acquire against Borrower or against any assignee or trustee in
bankruptcy of Borrower; provided however, that such assignment shall be
effective only for the purpose of assuring full payment of the Indebtedness.
9. MISCELLANEOUS. The following miscellaneous provisions are a
part of this Guaranty:
(a) Amendments. This Guaranty constitutes the entire understanding and
agreement of the parties as to the matters set forth herein. No alteration
of or amendment to this Guaranty shall be effective unless it is in
writing and signed by the party or parties sought to be charged or bound
by the alteration or amendment.
(b) Applicable Law. This Guaranty shall be governed by and construed
in accordance with the laws of the state of Oregon, without regard to
principles of conflicts of law.
(c) Arbitration. Either Bank or Guarantor may require that all disputes,
claims, counterclaims, and defenses, including those based on or arising
from any alleged tort (collectively referred to below as "Claims")
relating in any way to this Guaranty, or any transaction of which this
Guaranty is a part, be settled by binding arbitration in Portland, Oregon
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association and Title 9 of the U.S. Code. Notwithstanding the
reference to the American Arbitration Association rules in the preceding
sentence, the American Arbitration Association shall not be involved in or
administer the arbitration (unless the parties otherwise agree in
writing). Rather, within 30 days of the date of a request or demand for
arbitration of any dispute or Claims hereunder, the parties shall agree
upon a mutually acceptable arbitrator (and, if they are unable or
unwilling to do so, an arbitrator shall be appointed pursuant to 9 USC '
5). All Claims will be subject to the statutes of limitation applicable if
they were litigated. This provision is void if arbitration would
jeopardize Bank's ability to proceed against collateral located outside of
Oregon, or if the effect of the arbitration procedure (as opposed to any
Claims of Guarantor) would be to materially impair Bank's ability to
realize on any collateral securing the Note. One neutral arbitrator will
decide all issues. The arbitrator will be an active Oregon State Bar
member in good standing. All arbitration hearings will be held in
Portland, Oregon. In addition to all other powers, the arbitrator shall
have the exclusive right to determine all issues of arbitrability.
Judgment on any arbitration award may be entered in any court with
jurisdiction. Each party has the right before, during, and after any
arbitration to exercise any number of the following remedies, in any order
or concurrently:
(i) Setoff,
(ii) Self-help repossession,
(iii) Judicial or nonjudicial foreclosure against real or
personal property collateral, or
(iv) Provisional remedies, including injunction, appointment of
receiver, attachment, claim and delivery, and replevin.
This arbitration clause cannot be modified or waived by either party
except in writing, which writing must refer to this arbitration clause and
be signed by both Bank and Guarantor.
(d) Expenses. Guarantor agrees to pay upon demand all costs and expenses
of Bank, including reasonable legal expenses, incurred in connection with
the enforcement of this Guaranty.
(e) Notices. All notices required to be given party to the other under
this Guaranty shall be in writing and, except for revocation notices by
Guarantor, shall be effective when actually delivered or when deposited in
the United States mail, first class postage prepaid, addressed to the
party to whom the notice is to be given at the address shown below or to
such other addresses as either party may designate to the other in
writing:
If to Bank: United States National Bank of Oregon
111 S.W. Fifth Avenue (T-8)
Portland, Oregon 97204
Attention: Betty J. Kinoshita
With copies to: Miller, Nash, Wiener, Hager & Carlsen LLP
3500 U. S. Bancorp Tower
111 S.W. Fifth Avenue
Portland, Oregon 97204-3699
Attention: Louis G. Henry
If to Guarantor: Thomas W. Itin
Suite 424
7001 Orchard Lake Road
Bloomfield, Michigan 48233
With copies to: Friedlob, Sanderson, Raskin,
Paulson & Tourtillott, LLC
1400 Glenarm Place, Suite 300
Denver, Colorado 80202
Attention: Gerald Raskin
(f) Interpretation. The words "Guarantor," "Borrower," and "Bank" include
the respective successors, assigns, and transferees of each of them;
provided, however, that Guarantor may not assign his obligations
hereunder. Caption headings in this Guaranty are for convenience purposes
only and are not to be used to interpret or define the provisions of this
Guaranty. If a court of competent jurisdiction finds any provision of this
Guaranty to be invalid or unenforceable as to any person or circumstance,
such finding shall not render that provision invalid or unenforceable as
to any other persons or circumstances, and all provisions of this Guaranty
in all other respects shall remain valid and enforceable.
(g) Waiver. Bank shall not be deemed to have waived any rights under this
Guaranty unless such waiver is given in writing and signed by Bank. No
delay or omission on the part of Bank in exercising any right shall
operate as a waiver of such right or any other right. No prior waiver by
Bank, nor any course of dealing between Bank and Guarantor, shall
constitute a waiver of any of the rights of Bank or of any of Guarantor's
obligations as to any future transactions. Whenever the consent of Bank is
required under this Guaranty, the granting of such consent in any instance
shall not constitute continuing consent to subsequent instances where such
consent is required.
(h) Statutory Notice. By Oregon statute (ORS 41.580), the following
disclosure is required: UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND
COMMITMENTS MADE BY LENDERS AFTER OCTOBER 3, 1989, CONCERNING LOANS AND
OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY, OR HOUSEHOLD
PURPOSES OR SECURED SOLELY BY THE BORROWER'S RESIDENCE MUST BE IN WRITING,
EXPRESS CONSIDERATION, AND BE SIGNED BY THE LENDER TO BE ENFORCEABLE.
DATED this 14th day of July, 1997.
GUARANTOR:
- ------------------------------------
Thomas W. Itin
Also executed by Bank to document its agreement to the arbitration provisions of
Section 9(c) of this Guaranty.
UNITED STATES NATIONAL BANK OF OREGON
By:
Betty J. Kinoshita
Vice President
<PAGE>
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