CONSENT, REAFFIRMATION, AND RELEASE AGREEMENT
This Consent, Reaffirmation, and Release Agreement (the "Agreement")
is entered into this 14th day of July, 0000, xxxxxxx xxx xxxxx Xxxxxx Xxxxxx
National Bank of Oregon ("U. S. Bank"), Agrotec Xxxxxxxx, Inc., Aptek Xxxxxxxx,
Inc., Xxxxxx Xxxxxxxx, Inc., Kenco Xxxxxxxx, Inc., NESC Xxxxxxxx, Inc., Premier
Plastic Technologies, Inc., Techwood Xxxxxxxx, Inc., Waccamaw Wheel Xxxxxxxx,
Inc., Xxxxxxxx Automotive, Inc., Xxxxxxxx Controls, Inc., Xxxxxxxx Controls
Industries, Inc., Xxxxxxxx Technologies, Inc., Xxxxxxxx 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 Xxxxxx X. Xxxx.
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 Xxxxxxxx Controls, Inc. ("Xxxxxxxx"), 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 "Xxxxxxxx Loan Agreement"). Xxxxxxxx executed a security
agreement granting the Banks liens and security interests in all or
substantially all of Xxxxxxxx' personal property to secure Xxxxxxxx' obligations
to the Banks pursuant to the Xxxxxxxx Loan Agreement.
B. Agrotec Xxxxxxxx, Inc., Aptek Xxxxxxxx, Inc., Xxxxxx Xxxxxxxx,
Inc., Kenco Xxxxxxxx, Inc., NESC Xxxxxxxx, Inc., Premier Plastic Technologies,
Inc., Techwood Xxxxxxxx, Inc., Waccamaw Wheel Xxxxxxxx, Inc., Xxxxxxxx
Automotive, Inc., Xxxxxxxx Controls Industries, Inc., Xxxxxxxx Technologies,
Inc., and Xxxxxxxx World Trade, Inc. (collectively, the "Xxxxxxxx Guarantors")
executed guaranty agreements whereby they guaranteed the payment of Xxxxxxxx'
obligations to the Banks in respect of the credit facility extended pursuant to
the Xxxxxxxx Loan Agreement. In addition, the Xxxxxxxx Guarantors executed
security agreements granting the Banks liens and security interests in all or
substantially all of the Xxxxxxxx Guarantors' personal property to secure the
obligations of the Xxxxxxxx Guarantors and Xxxxxxxx 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.
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 Xxxxxxxx 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 Xxxxxxxx executed security agreements (and amendments
thereto) granting U. S. Bank liens and security interests in all or
substantially all of the Ajay Guarantors' and Xxxxxxxx' 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 Xxxxxxxx, Xxxx, the Xxxxxxxx
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 Xxxxxxxx, Xxxx, the Xxxxxxxx
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 Xxxxxxxx, the Xxxxxxxx
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 Xxxxxxxx pursuant to the Xxxxxxxx Loan
Agreement and the promissory note executed in connection therewith is referred
to below as the "Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx and
Ajay.
H. As of July 14, 1997, Xxxxxxxx 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 Xxxxxxxx Loan Agreement and this Ajay Loan Agreement expire on July 14,
1997. At that time, the Obligations become due and payable in full.
X. Xxxxxxxx and Xxxx have negotiated a new financing arrangement
with Xxxxx Fargo Bank, National Association ("WFB"). However, the amount that
WFB is willing to lend to Xxxxxxxx and Xxxx thereunder would not result in
payment in full of the Obligations.
X. Xxxxxxxx and Ajay have requested U. S. Bank to agree to the
proposed refinancing transaction among Xxxxxxxx, Xxxx, 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
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 Xxxxxxxx and Xxxx with respect to the Obligations,
Xxxxxxxx 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 Xxxxxxxx
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 Xxxxxxxx, 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 Xxxxxxxx, Xxxx, the
Xxxxxxxx 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 Xxxxxxxx
Loan Agreement and the Ajay Loan Agreement as the document governing the credit
facilities U. S. Bank extends to Xxxxxxxx and Xxxx. The Xxxxxxxx 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 Xxxxxxxx Guarantors, Xxxxxxxx, 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 (Xxxxxxxx Guarantors). The
Xxxxxxxx Guarantors hereby reaffirm their guaranties of all obligations and
indebtedness of Xxxxxxxx to U. S. Bank (including Xxxxxxxx' 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 Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx
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
Xxxxxxxx). The Ajay Guarantors and Xxxxxxxx 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 Xxxxxxxx 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 Xxxxxxxx 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"). Xxxxxxxx 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
Xxxxxxxx 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 Xxxxxxxx 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, Xxxxxxxx and Xxxx 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
Xxxxxxxx and Ajay for such quarter and for the year to date; (b) a consolidated
and consolidating statement of operations of each of Xxxxxxxx and Xxxx for such
quarter and for the year to date; and (c) a consolidated and consolidating
balance sheet of each of Xxxxxxxx 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, Xxxxxxxx and Xxxx shall provide U. S.
Bank with (a) a consolidated statement of cash flows and a consolidated
statement of stockholders' equity of each of Xxxxxxxx and Ajay for such fiscal
year; (b) a consolidated statement of operations of each of Xxxxxxxx and Xxxx
for such fiscal year; and (c) a consolidated balance sheet of each of Xxxxxxxx
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
Xxxxxxxx and Xxxx 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 Xxxxxxxx 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, Xxxxxxxx, and Xxxx)
(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.
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
With copies to:
Friedlob, Sanderson, Raskin, Xxxxxxx & Xxxxxxxxxxx,
LLC
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
(ii) If to Xxxxxxxx or the Xxxxxxxx Guarantors:
Xxxxxxxx Controls, Inc.
00000 X.X. 00xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxx
With copies to:
Friedlob Xxxxxxxxx Xxxxxx Xxxxxxx & Xxxxxxxxxxx, LLC
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
(iii) If to U. S. Bank:
United States National Bank of Oregon
000 X.X. Xxxxx Xxxxxx (T-8)
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
With copies to:
Miller, Nash, Wiener, Hager & Xxxxxxx LLP
Attorneys at Law
3500 U. S. Bancorp Tower
000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx
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.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
UNITED STATES NATIONAL BANK XXXXXXXX CONTROLS, INC.
OF OREGON
By: By:
Xxxxx X. Xxxxxxxxx Xxxxxx X. Xxxx
Vice President President and
Chief Executive Officer
AGROTEC XXXXXXXX, INC. APTEK XXXXXXXX, INC.
By: By:
Xxxxxx X. Xxxx Xxxxxx X. Xxxx
President and President and
Chief Executive Officer Chief Executive Officer
XXXXXX XXXXXXXX, INC. KENCO XXXXXXXX, INC.
By: By:
Xxxxxx X. Xxxx Xxxxxx X. Xxxx
President and President and
Chief Executive Officer Chief Executive Officer
NESC XXXXXXXX, INC. PREMIER PLASTIC
TECHNOLOGIES, INC.
By: By:
Xxxxxx X. Xxxx Xxxxxx X. Xxxx
President and President and
Chief Executive Officer Chief Executive Officer
TECHWOOD XXXXXXXX, INC. WACCAMAW WHEEL XXXXXXXX,
INC.
By: By:
Xxxxxx X. Xxxx Xxxxxx X. Xxxx
President and President and
Chief Executive Officer Chief Executive Officer
XXXXXXXX AUTOMOTIVE, INC. XXXXXXXX CONTROLS INDUSTRIES
INC.
By: By:
Xxxxxx X. Xxxx Xxxxxx X. Xxxx
President and President and
Chief Executive Officer Chief Executive Officer
XXXXXXXX TECHNOLOGIES, INC. XXXXXXXX WORLD TRADE, INC.
By: By:
Xxxxxx X. Xxxx Xxxxxx X. Xxxx
President and President and
Chief Executive Officer Chief Executive Officer
AJAY SPORTS, INC. AJAY LEISURE PRODUCTS, INC.
By: By:
Xxxxxx X. Xxxx Xxxxxx X. Xxxx
President and President and
Chief Executive Officer Chief Executive Officer
AJAY LEISURE de MEXICO LEISURE LIFE, INC.
C.V. de S.A.
By: By:
Xxxxxxxx X. Xxxx Xxxxxx X. Xxxx
Sole Administrator Chairman of the Board
PALM SPRINGS GOLF, INC.
By:
Xxxxxx X. Xxxx Xxxxx X. Xxxx
Chief Executive Officer
