EXHIBIT 10-AN TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") is made
as of the 29th day of December, 1994, by and among FIRST
INTERSTATE BANK OF OREGON, N.A., TRUSTEE ("FIB"), THE TOKAI BANK,
LTD., LOS ANGELES AGENCY ("Tokai"), AEROSCIENTIFIC CORP., an
Oregon corporation ("Aero-Or"), DDL ELECTRONICS, INC., a Delaware
corporation (formerly known as DATA DESIGN LABORATORIES, INC., a
Delaware corporation) ("DDL"), AEROSCIENTIFIC CORP., a California
corporation ("Aero-Cal"), A.J. ELECTRONICS, INC., a California
corporation ("A.J."), DDL EUROPE LIMITED ("DDL-E"), DDL
ELECTRONICS LIMITED ("DDL-Ltd."), and IRLANDUS CIRCUITS LIMITED
("Irlandus") (DDL, Aero-Cal, A.J., DDL-E, DDL-Ltd., and Irlandus
are collectively referred to herein as the "Aero-Or Affiliates").
Terms not otherwise defined in this Agreement shall have the
meanings ascribed to them in that certain Indenture of Trust
dated as of May 1, 1986 among the State of Oregon acting through
the Economic Development Commission (the "Issuer"), FIB and
Aero-Or.
RECITALS
A. Issuer issued Adjustable Tender Economic Development
Revenue Bonds (the "Bonds"), and loaned certain proceeds from the
sale of the Bonds to Aero-Or pursuant to that certain Indenture
of Trust dated as of May 1, 1986 (the "Indenture") among the
Issuer, Aero-Or and FIB, as trustee, and that certain Loan
Agreement dated as of May 1, 1986 (the "Loan Agreement") between
Issuer and Aero-Or.
B. For repayment of the loan made by Issuer to Aero-Or,
Aero-Or agreed to pay to FIB, for the account of Issuer, an
amount equal to the principal amount of the Bonds together with
interest in the amount set forth in the Loan Agreement. Said
repayment is secured by certain trust deeds, security agreements,
and guaranties executed by Aero-Or and the Aero-Or Affiliates.
C. Pursuant to a certain Reimbursement Agreement dated as
of May 1, 1986, as amended (the "Reimbursement Agreement"),
between Tokai and Aero-Or, Tokai issued a letter of credit dated
as of May 16, 1986, as amended (the "Letter of Credit"), for the
benefit of FIB as security for repayment of the Bonds.
D. Aero-Or is also the guarantor of certain credit
facilities extended by Sanwa Bank California ("Sanwa") to DDL.
DDL, Sanwa and FIB have entered into that certain Intercreditor
Agreement dated on or about June 5, 1992 (the "Intercreditor").
E. As of the date of this Agreement, Aero-Or has caused a
defeasance of the Bonds pursuant to Section 8.01 of the Indenture
(the "Defeasance"), by delivering to FIB (i) irrevocable
instructions from Aero-Or for redemption of the Bonds on February
1, 1995; (ii) irrevocable instructions from the Issuer for
redemption of the Bonds on February 1, 1995; (iii) the sum of
$5,387,820.27, which constitutes all principal and interest due
and payable, and thereafter to become due and payable, on the
Bonds; and (iii) an unqualified opinion of nationally recognized
bankruptcy counsel (which opinion is acceptable to Xxxxx'x
Investors Service, Inc.) that payment of such moneys does not
constitute an avoidable preference under Section 547 of the
Federal Bankruptcy Code, in satisfaction of the Indenture's
Available Moneys requirement.
F. In connection with the Defeasance, FIB has delivered
the original Letter of Credit to Tokai for cancellation,
accompanied by a permanent reduction certificate and letter
certificate of cancellation in form and content satisfactory to
Tokai, and FIB, Tokai and Sanwa have entered into a termination
letter with respect to the Intercreditor Agreement.
G. As of the date of this Agreement, Aero-Or has caused to
be paid to Tokai and FIB all of their fees and costs, including
trustee's and attorneys' fees and expenses incurred in connection
with the Bonds but separate and apart from the negotiation and
preparation of documents pertaining to the Defeasance, including,
without limitation, the following: (a) $14,131.26 as letter of
credit fees due and payable to Tokai; (b) 5,082.25 Pounds
Sterling for fees and costs of Irish counsel; and (c) other
attorneys fees and costs through October 31, 1994 in the amount
of $22,739.47.
H. As of the date of this Agreement, Aero-Or has caused to
be paid to FIB and Tokai all of FIB's and Tokai's reasonable fees
and expenses, including without limitation attorneys' fees,
incurred in connection with the Defeasance.
I. The parties to this Agreement agree and acknowledge
that the Defeasance constitutes full and complete satisfaction of
all obligations arising out of or related to the Bonds.
NOW, THEREFORE, in consideration of the above recitals
and of the mutual covenants contained herein, Tokai, FIB,
Aero-Or, and the Aero-Or Affiliates hereby agree as follows:
I.
RELEASE OF LIENS; TERMINATION OF AGREEMENTS
1.1 Release of Liens. In consideration of the Defeasance
and receipt of the funds and documents described in the above
recitals, FIB and Tokai hereby release any and all liens,
encumbrances and other security interests (collectively, the
"Security Interests") it may hold in the property of Aero-Or
and/or the Aero-Or Affiliates. Concurrently with the execution
of this Agreement, FIB and Tokai shall deliver or cause to be
delivered to Aero-Or, in form and substance satisfactory to
Aero-Or, FIB and Tokai, such statements terminating the Security
Interests, and such other documents as Aero-Or may reasonably
deem necessary to assure itself that the Security Interests have
been released and terminated, including, without limitation, the
statements and documents identified on Exhibit 1 of this
Agreement.
1.2 Termination of Agreements. Except as set forth below,
the parties hereto agree that all outstanding agreements and
understandings between FIB, Tokai, Aero-Or and/or the Aero-Or
Affiliates in any way arising out of or related to the Bonds,
other than this Agreement, are hereby terminated and all
obligations thereunder are completely satisfied and released.
Such agreements and understandings include, without limitation,
those identified on Exhibit 2 of this Agreement. Notwithstanding
the foregoing, all indemnities, representations, warranties,
covenants and agreements as to environmental issues, covenants
and liability pertaining to any collateral granted by Aero-Or
and/or any Aero-Or Affiliate to Tokai and/or FIB shall remain in
full force and effect and be fully enforceable against such
entities.
1.3 Further Assurances. At Aero-Or's and/or the Aero-Or
Affiliates' sole expense, including without limitation reasonable
attorneys' fees, each party to this Agreement shall cooperate
fully in the execution of any and all other documents and in the
completion of any additional actions that may be necessary or
appropriate to give full force and effect to the terms and intent
of this Agreement, in form and substance satisfactory to Aero-Or,
Tokai and FIB, including, without limitation, execution of all
documents necessary or appropriate to release FIB's and Tokai's
Security Interest in Aero-Or's and/or the Aero-Or Affiliates'
property located in Northern Ireland.
II.
MUTUAL RELEASE
2.1 Release. In consideration of this Agreement and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Aero-Or and the Aero-Or Affiliates,
on one hand, and FIB and Tokai, on the other, hereby and forever
mutually release and discharge one another and each of the
other's successors, subsidiaries, affiliates, parent companies,
employees, former employees, consultants, owners, officers,
directors, shareholders, general partners, limited partners,
predecessors, assigns, agents, attorneys, insurers, and
representatives from any and all causes of action, actions,
judgments, liens, indebtedness, damages, losses, claims,
liabilities, and demands of any nature whatsoever, known or
unknown, absolute or contingent, related or incidental to the
Bonds, other than the obligations set forth in this Agreement and
any and all indemnification granted in favor of FIB and/or Tokai
or liability of Aero-Or and/or any of the Aero-Or Affiliates with
respect to environmental issues or concerns relating to the
property commonly known as 0000 XX 000xx Xxxxx, Xxxxxxxxx, Xxxxxx
(the "Property") and/or any of the other collateral granted by
Aero-Or and/or the Aero-Or Affiliates to Tokai and/or FIB.
2.2 Release of Unknown Claims. It is the intention of the
parties in executing this Agreement that this Agreement shall be
effective as a bar to each and every claim, demand, and cause of
action that the parties may have against one another related or
incidental to the Bonds, other than the obligations set forth in
this Agreement and any indemnification granted in favor of FIB
and/or Tokai with respect to environmental issues or concerns
relating to the Property. In furtherance of this intention, the
parties hereby expressly waive any and all rights or benefits
conferred by the provisions of Section 1542 of the California
Civil Code, and by any similar provision of California or Federal
law now in effect or in effect in the future, and expressly
consent that this Agreement shall be given full force and effect
according to each and all of its express terms and conditions,
including those relating to unknown and unsuspected claims,
demands, and causes of action, if any:
A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor
at the time of executing the release, which if known by
him must have materially affected his settlement with the
debtor.
The parties acknowledge that they may hereafter
discover claims or facts in addition to or different from those
which they now know or believe to exist with respect to the
subject matter of this Agreement and which, if known or suspected
at the time of executing this Agreement, may have materially
affected this settlement. Nevertheless, the parties hereby waive
any rights, claims, or causes of action that might arise as a
result of such different or additional claims or facts. The
parties acknowledge that they understand the significance and
potential consequence of such a release of unknown claims and of
the specific waiver of their rights under Section 1542. The
parties intend that the claims released by them under this
Agreement be construed as broadly as possible.
III.
MISCELLANEOUS
3.1 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of Aero-Or, the Aero-Or Affiliates, FIB,
and Tokai and their respective successors and assigns.
3.2 Governing Law: Waiver of Trial by Jury. This Agreement
shall be governed by and interpreted and construed in accordance
with the laws of the State of California. The parties hereto
consent to the jurisdiction of any state or federal court located
within Los Angeles County of the State of California. The
parties hereto waive the right to trial by jury in any action,
suit, proceeding or counterclaim of any kind arising out of or
related to this Agreement.
3.3 Recitals. All of the recitals are incorporated herein
and made a part hereof and all parties acknowledge and agree that
the recitals are true and correct.
3.4 Warranty of Authorization. Each person whose signature
appears hereon warrants and guarantees that he or she has been
duly authorized and has full authority to execute this Agreement
on behalf of the entity on whose behalf this Agreement is
executed.
3.5 Entire Agreement. This Agreement constitutes and
contains the entire agreement and understanding between the
parties. This Agreement supersedes and replaces all prior
negotiations and all agreements, proposed or otherwise, whether
written or oral, concerning the subject matter hereof. This is a
fully integrated document. In executing this Agreement, no party
hereto has relied on any representation not contained within this
document. Each party hereto has been represented by counsel and
has relied solely on its counsel's advice as to the legal effect
hereof and its own knowledge and the terms of this document.
3.6 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all
of which taken together shall constitute but one and the same
instrument.
3.7 Attorneys' Fees and Costs. In the event of litigation
in connection with or concerning the subject matter of this
Agreement or any breach of this Agreement, the prevailing party
shall be entitled to recover all costs and expenses incurred by
that party, including reasonable attorneys' fees and costs, in
addition to any other relief to which it may be entitled. The
parties further agree that the prevailing party shall be entitled
to recover all costs, including without limitation reasonable
attorneys' fees and costs whether incurred before trial, at trial
or in any appeal or bankruptcy proceeding, of collecting any
costs and expenses awarded pursuant to the prior sentence.
3.8 Headings. The headings set forth herein are solely for
the purpose of identification and have no legal significance.
3.9 Fiduciary Capacity of FIB. FIB executes this Agreement
solely in its fiduciary capacity as Trustee under the Indenture
and related documents.
IN WITNESS WHEREOF, this Agreement is executed as of the date
first written above
FIRST INTERSTATE BANK OF OREGON, N.A., TRUSTEE
By:______________________________
Its:______________________________
THE TOKAI BANK, LTD., LOS ANGELES - AGENCY
By:______________________________
Its:______________________________
AEROSCIENTIFIC CORP., an Oregon
corporation
By:______________________________
Its:______________________________
DDL ELECTRONICS, INC., a Delaware corporation
By:______________________________
Its:______________________________
AEROSCIENTIFIC CORP. a California
corporation -
By:______________________________
Its:______________________________
A.J. ELECTRONICS, INC., a
California corporation
By:______________________________
Its:______________________________
DDL EUROPE LIMITED
By:______________________________
Its:______________________________
DDL ELECTRONICS LIMITED
By:______________________________
Its:______________________________
IRLANDUS CIRCUITS LIMITED
By:______________________________
Its:______________________________
EXHIBIT 1
TO
TERMINATION AGREEMENT
Release of Liens
1. Request for Reconveyance of that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing by DDL
to First American Title Insurance Company ("First American") for
the benefit of Sanwa Bank California, a California corporation
("Sanwa"), Tokai and FIB with respect to that property commonly
known as 000 Xxxxx Xxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxx;
2. Request for Reconveyance of that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing by
A.J. to First American for the benefit of Sanwa, Tokai and FIB
with respect to that property commonly known as 00000 Xxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx;
3. Request for Reconveyance of that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing by DDL
to First American for the benefit of Sanwa, Tokai and FIB with
respect to that property commonly known as 0000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxx;
4. Request for Reconveyance of that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing by DDL
to First American for the benefit of Sanwa and Tokai with respect
to that property known as Xxx 00, Xxxxx 00000, in the City of
Rancho Cucamonga, California;
5. Request for Reconveyance of that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing by DDL
to First American for the benefit of Sanwa and Tokai with respect
to that property known as Xxx 00, Xxxxx 00000, in the City of
Rancho Cucamonga, California;
6. Request for Reconveyance of that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing by
DDL to Fidelity National Title Insurance Company for the benefit
of Sanwa, Tokai and FIB with respect to that property commonly
known as 00000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxxx;
7. Request for Reconveyance of that certain Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing by
Aero-Or to First American for the benefit of Tokai and FIB with
respect to that property commonly known as 0000 XX 000xx Xxxxx,
Xxxxxxxxx, Xxxxxx;
8. Deed of Release among Irlandus, FIB, Tokai and Sanwa with
respect to that property located in Northern Ireland;
9. Deed of Release among DDL-E, FIB, Tokai and Sanwa with
respect to that property located in Northern Ireland;
10. Deed of Release among DDL-L, FIB, Tokai and Sanwa with
respect to that property located in Northern Ireland;
11. Form UCC-3 Termination Statement terminating FIB'S and
Tokai's security interest in the assets of DDL under that certain
Financing Statement filed in the Office of the Oregon Secretary
of State on June 23, 1992 as file number R12780;
12. Form UCC-3 Termination Statement terminating FIB's and
Tokai's security interest in the assets of Aero-Cal under that
certain Financing Statement filed in the Office of the California
Secretary of State on June 22, 1992 as file number 92134431;
13. Form UCC-3 Termination Statement terminating FIB's and
Tokai's security interest in the assets of Aero-Or under that
certain Financing Statement filed in the Office of the Oregon
Secretary of State on June 23, 1992 as file number R1278l;
14. Form UCC-2 Termination Statement terminating FIB's and
Tokai's security interest in the assets of A.J. under that
certain Financing Statement filed in the Office of the California
Secretary of State on June 22, 1992 as file number 92134433;
15. Form UCC-2 Termination Statement terminating FIB's and
Tokai's security interest in the assets of DDL under that certain
Financing Statement filed in the Office of the California
Secretary of State on June 22, 1992 as file number 92134429;
16. Form UCC-3 Termination Statement terminating FIB'S security
interest in the assets of Aero-Or under that certain Financing
Statement filed in the Official Records of the County Recorder of
Washington County, Oregon on May 13, 1986 as file number
86019995;
17. Form UCC-3 Termination Statement terminating Tokai's
security interest in the assets of Aero-Or under that certain
Financing Statement filed in the Official Records of the County
Recorder of Washington County, Oregon on May 13, 1986 as file
number 86019996;
18. Form UCC-3 Termination Statement terminating Tokai's
security interest in the assets of Aero-Or under that certain
Financing Statement filed in the Office of the Oregon Secretary
of State on May 12, 1986 as file number K44261;
19. Form UCC-3 Termination Statement terminating FIB's security
interest in the assets of Aero-Or under that certain Financing
Statement filed in the Office of the Oregon Secretary of State on
May 12, 1986 as file number K44260;
20. Form UCC-3 Termination Statement terminating Sanwa's
security interest in the assets of DDL under that certain
Financing Statement filed in the Office of the Delaware Secretary
of State on June 23, 1992 as file number 9207522;
21. Assignment of Deed of Trust (as collateral), assigning all
beneficial interest under that certain Second Deed of Trust and
Assignment of Rents with Request for Notice dated May 10, 1990
executed by M. Xxxxx Xxxxxx and Xxxx Xxxxxx recorded as
Instrument No. 90-286466 and further recorded as Instrument
No. 90-375203.
22. Assignment of Deed of Trust (as collateral), assigning all
beneficial interest under that certain Second Deed of Trust and
Assignment of Rents with Request for Notice dated May 30, 1990
executed by Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx recorded as
Instrument No. 90-314878 and further recorded as Instrument No.
90-372668.
23. Original Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing by DDL to First American for the
benefit of Sanwa, Tokai and FIB with respect to that property
commonly known as 000 Xxxxx Xxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxx;
24. Original Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing by DDL to First American for the
benefit of Sanwa, Tokai and FIB with respect to that property
commonly known as 00000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx;
25. Original Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing by DDL to First American for the
benefit of Sanwa, Tokai and FIB with respect to that property
commonly known as 0000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx;
26. Original Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing by DDL to First American for the
benefit of Sanwa and Tokai with respect to that property known as
Xxx 00, Xxxxx 00000, in the City of Rancho Cucamonga, California;
27. Original Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing by DDL to First American for the
benefit of Sanwa and Tokai with respect to that property known as
Xxx 00, Xxxxx 00000, in the City of Rancho Cucamonga, California;
28. Original Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing by DDL to Fidelity National Title
Insurance Company for the benefit of Sanwa, Tokai and FIB with
respect to that property commonly known as 00000 Xxxxx 00xx
Xxxxxx, Xxxxxxx, Xxxxxxx;
29. Original Deed of Trust, Assignment of Rents, Security
Agreement and Fixture Filing by Aero-Or to Transamerica Title
Insurance Company for the benefit of FIB and Tokai with respect
to that property commonly known as 0000 XX 000xx Xxxxx,
Xxxxxxxxx, Xxxxxx;
30. Original Second Deed of Trust and Assignment of Rents with
Request for Notice dated May 10, 1990 executed by M. Xxxxx Xxxxxx
and Xxxx Xxxxxx recorded as Instrument No.90-286466 and further
recorded as Instrument No. 90-375203;
31. Original Second Deed of Trust and Assignment of Rents with
Request for Notice dated May 30, 1990 executed by Xxxxxx X. Xxxxx
and Xxxxx X. Xxxxx recorded as Instrument No. 90-314878 and
further recorded as Instrument No. 90-372668;
32. Original Promissory Note Secured by Second Deed of Trust
dated May 10, 1990 in the principal amount of $560,000 executed
by M. Xxxxx Xxxxxx and Xxxx Xxxxxx;
33. Original Promissory Note Secured by Second Deed of Trust
dated May 30, 1990 in the principal amount of $250,000 executed
by Xxxxxx X. Xxxxx and Xxxxx X. Xxxxx;
34. Original Promissory Note dated February 28, 1992 in the
principal amount of $292,536.36 executed by Omni Acquisition
Corp.
EXHIBIT 2
TO
TERMINATION AGREEMENT
Termination of Agreements
1. The Indenture;
2. The Loan Agreement;
3. The Reimbursement Agreement;
4. The Letter of Credit;
5. Pledge and Security Agreement dated May 1, 1986 by Aero-Or,
Tokai and The Chase Manhattan Bank, N.A.;
6. Guaranty Agreement dated May 1, 1986, as amended, between
DDL and Tokai;
7. Guaranty Agreement dated May 1, 1986, as amended, between
DDL and FIB;
8. Pledge and Security Agreement dated June 5, 1992 by DDL in
favor of Tokai, Sanwa, and FIB;
9. General Security Agreement dated as of June 5, 1992 by DDL
in favor of Tokai and FIB;
10. General Security Agreement dated as of June 5, 1992 by
Aero-Or in favor of Tokai and FIB;
11. General Security Agreement dated as of June 5, 1992 by
AeroCal in favor of Tokai and FIB;
12. General Security Agreement dated as of June 5, 1992 by A.J.
in favor of Tokai and FIB;
13. Continuing Guaranty dated as of June 5, 1992 by DDL in favor
of Tokai and FIB;
14. Continuing Guaranty dated as of June 5, 1992 by Aero-Cal in
favor of Tokai and FIB; and
15. Continuing Guaranty dated as of June 5, 1992 by A.J. in
favor of Tokai and FIB.
