EXHIBIT 10.35
LOAN CONVERSION AGREEMENT
(Xxxxxx-Xxxxx Group)
THIS LOAN CONVERSION AGREEMENT is made effective September 30, 1996,
by and between UNICO, Inc., a Delaware corporation ("UNICO"), and Xxxx X.X.
Xxxxxxxx, an individual, (hereafter called the "the Subordinated Debenture
Holder") with reference to the following facts.
R E C I T A L S:
A. On or about October 26, 1993, November 22, 1993 or January 2, 1994,
UNICO issued and delivered a certain Five Year Subordinated Debenture
payable to the order of the Subordinated Debenture Holder in the face amount
of One Hundred Thousand Dollars ($100,000) (hereafter called the
"Subordinated Debentures") together with Warrants to purchase, in the
aggregate, 50,000 shares of UNICO Common Stock, of which none remain
unexercised (hereafter called the "Warrants").
B. The Subordinated Debenture Holder is the current owner and holder,
of Subordinated Debenture having a current principal balance of $100,000.00
and unpaid interest has accrued under the Subordinated Debentures, as of and
through the date hereof, in the amount of $13,125 yielding a total
indebtedness due of $113,125.
C. The Subordinated Debenture is unsecured and is expressly
subordinated by its terms, inter alia, to the prior payment in full of the
principal of and interest on all indebtedness owing by UNICO to its primary
commercial lender, BancFirst, an Oklahoma banking corporation, (the "Bank")
and any and all extensions and renewals thereof. The Bank holds security
interests in all assets now owned or hereafter acquired by UNICO or any of
its subsidiaries.
D. By their letter agreement of February 2, 1996, the Subordinated
Debenture Holders agreed to convert and exchange the entirety of the
principal and accrued interest owing on the Subordinated Debenture into and
for: (i) 1/3 into Common Stock of UNICO at an exchange ratio of one share for
each $0.25 of debenture indebtedness; (ii) 1/3 into Preferred Stock
convertible into Common stock at a ratio of one share for each $0.35 of
debenture indebtedness; and (iii) 1/3 into a restated convertible debenture
indebtedness convertible into Common Stock at a ratio of one share for each
$0.40 of restated debenture indebtedness. Said agreement was contingent upon
the refinancing of UNICO's debt to the Bank, due December 1995, to a term
of three (3) or more years.
E. Subsequently, the Bank has agreed to extend the term of UNICO's
indebtedness by three (3) years to December 1998.
1
F. UNICO and Subordinated Debenture Holder, in fulfillment of their
prior agreement and in modification thereof to address the Warrants and to
provide an arrangement more favorable to the Subordinated Debenture Holder do
hereby amend and restate their agreement as set forth in this Loan Conversion
Agreement.
A G R E E M E N T S:
In consideration of the mutual benefits and agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. CONVERSION REDEMPTION AND EXCHANGE
Contemporaneous with the execution hereof the Subordinate Debenture
Holders and UNICO agree to convert, redeem and exchange 323,214 shares of
UNICO's Common Stock for all indebtedness created pursuant to and evidenced
by the Subordinated Debentures and UNICO, as borrower, and its subsidiaries,
as guarantors, are released of any further liability thereunder.
2. NECESSARY DOCUMENTS
The parties agree to execute such documents and certificates as may
be reasonable and necessary to effectuate the purposes of this agreement.
3. MISCELLANEOUS
a. This Conversion Agreement contains the entire agreement between
the parties and supersedes all prior agreements and understandings of any
relating to the subject matter hereof and thereof.
b. Section headings are for the convenience of reference only and
except as a means of identification of reference, shall in no way effect the
interpretation of this Conversion Agreement.
4. MULTIPLE COUNTERPARTS
This Conversion Agreement may be executed in any number of counterparts
all of which taken together shall constitute one and the same signing any
such counterpart.
5. Miscellaneous. The parties further agree as follows:
a. Binding Effect. This Conversion Agreement will be binding on
the parties and will enure to the benefit of and bind their respective heirs,
personal representatives, successors and permitted assigns.
2
b. Third Party Beneficiaries. This Conversion Agreement is
intended to create rights between UNICO and the Subordinated Debenture Holder
and is not intended to confer rights on any other person or to constitute
such person a third party beneficiary of this Conversion Agreement.
c. Notices. Any notice, demand or communication required or
permitted to be given by any provision of this Conversion Agreement will be
in writing and will be deemed to have been given when delivered personally or
by telefacsimile (with a hard copy sent within one [1] business day by any
other means described in this paragraph) to the party designated to received
such notice, or on the date following the day sent by a national recognized
overnight courier, or on the third (3rd) business day after the same is sent
by certified mail, return receipt requested, postage and charges prepaid,
directed to the following addresses or to such other or additional addresses
as any party might designate by written notice to the other party:
To the Subordinated Debenture Holder: Xxxx X.X. Xxxxxxxx
Xxxxxxxxxx
00000 Xxxxxxxx
Xxxxxxx
Telefacsimile:
To : UNICO, INC.
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxxx, President
Telefacsimile: (000) 000-0000
With Copy To: Xxxxx & Xxxxx, P.C.
00000 Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, III, Esquire
Telefacsimile: (000) 000-0000
d. Governing Law. This Conversion Agreement is to be construed
according to the internal laws of the Commonwealth of Virginia. All actions
with respect to this Conversion Agreement may be instituted in the courts of
the Commonwealth of Virginia sitting in Fairfax County, Virginia or the
United States District Court for the Eastern District of Virginia, Alexandria
Division, as UNICO might elect, and by the execution and delivery of this
Conversion Agreement, the Subordinated Debenture Holder irrevocably and
unconditionally submits to the jurisdiction (both subject mater and personal)
of each such court and irrevocable and unconditionally waive: (a) any
objection they might now or hereafter have to the venue in any such court;
and (b) any claim that any action or proceeding brought in any such court has
been brought in an inconvenient forum.
3
e. Severability. If any provision of this Conversion
Agreement is determined by a court having jurisdiction to be illegal, invalid
or unenforceable under any present or future law, the remainder of this
Conversion Agreement will not be affected thereby. It is the intention of
the parties that if any provision is so held to be illegal, invalid or
unenforceable, there will be added in lieu thereof a provision as similar in
terms to such provision as is possible that is legal, valid and enforceable.
f. Entire Agreement. This document constitutes the entire
agreement between the parties relating to the subject matter of this
Conversion Agreement and there are no agreements, understands, warranties or
representations between the parties except as set forth herein.
IN WITNESS WHEREOF, the undersigned have fully executed this
Conversion Agreement to be effective the date first above written.
UNICO, INC., a Delaware corporation
By /s/Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx, President
/s/Xxxx X. Xxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxx, an individual
4
