AGREEMENT
Agreement dated June 12, 1997 among Transnational
Industries, Inc. ("Guarantor"), Spitz, Inc. ("Obligor")
and Comerica Bank ("Comerica").
The parties agree:
1. As of the date of this Agreement, Obligor and Guarantor are indebted to
Comerica as of June 12, 1997, as follows:
Maker Note Principal Interest
-------------------------------------------------------------
Obligor Revolving 0 0
Obligor Term $1,352,000.00 $4,349.33
Guarantor Term $21,782.68 $0
plus fees and expenses (the "Indebtedness"). In addition, Comerica is the holder
of a Stock Subscription Warrant ("Warrant") dated as of April 1, 1994 to
purchase 2,178,268 shares of common stock of Guarantor.
2. Concurrently with execution of this Agreement, Obligor and Guarantor
shall pay $1,235,849.33 to Comerica in immediately available funds
(consisting of principal of $1,230,000, accrued interest of $4,349.33
and fees and expenses of $1,500).
3. Obligor and Guarantor acknowledge that the Revolving Credit Loan has
expired and that Comerica has no obligation to lend to Obligor and
Guarantor under that facility or otherwise.
4. Obligor and Guarantor have prepared certain UCC-3 termination
statements for execution by Comerica, as scheduled on Exhibit A. Upon
receipt from Comerica, Obligor and Guarantor accept the responsibility
and expense of filing all such UCC-3 termination statements.
5. Upon fulfillment of the requirements of the Obligor and Guarantor in
paragraph 2, Comerica shall, subject to paragraph 7 below, accept the
payment under paragraph 2 as payment in full of the Indebtedness and
shall:
(a) execute and deliver to Obligor or its designee the UCC-3
termination statements identified on Exhibit A;
(b) return to Guarantor the Warrant;
(c) return to the respective obligors the $500,000 Revolving
Credit Note by Obligor dated April 1, 1994, the $1,800,00
(1)
Convertible Term Note by Obligor dated April 1, 1994 and the
$21,782.68 Term Note by Guarantor dated April 1, 1994, each
marked "PAID".
6. Obligor and Guarantor understand that Comerica may have to report the
cancellation of indebtedness to the Internal Revenue Service.
7. The Indebtedness may not represent all amounts owing to Comerica
because of returned items, insufficient funds checks, partial credits
and provisional credits taken into consideration in calculating the
Indebtedness, and because of any disgorgements of any nature, required
to be made by Comerica in the future based on the avoidance of any
previous payments to Comerica on the Indebtedness, whether such
avoidance is pursued under the United States Bankruptcy Code or
otherwise (collectively, the "Adjustments"). Because of the possibility
of Adjustments, Obligor and Guarantor agree to indemnify Comerica from
any and all losses or deficiencies caused by any Adjustments which arise
(at any time), and agree to pay, and hold Comerica harmless with respect
to all Adjustments.
8. In consideration of Comerica's acceptance of a discounted payment of
the Convertible Term Note by Obligor dated and the Term Note by
Guarantor and its return of the Warrant, Obligor and Guarantor knowingly
and voluntarily release Comerica, its employees, agents, affiliates,
subsidiaries, successors and assigns, from any claim, right or cause of
action which now exists or hereafter arises as a result of such acts,
omissions or events occurring prior to the date hereof, whether known or
unknown, arising from or in any way related to the Indebtedness, the
Loan Documents or the relationship among Comerica, Obligor and Guarantor
or any of them. Obligor and Guarantor shall also defend and hold
harmless Comerica from any claim or damages of Obligor and Guarantor, or
any of them, or any third party against Comerica arising from or
relating to the Indebtedness, the Loan Documents, this Agreement or the
business relationship among the Comerica Obligor and Guarantor.
9. The parties covenant and agree to execute and deliver all such
documents and to take all such further actions, including the provision
of information, as the other may reasonably deem necessary, from time to
time, to carry out the intent and purpose of this Agreement and to
consummate the transaction contemplated.
10. The agreements, representations and warranties of the parties shall
survive the consummation of the assignment.
(2)
11. This Agreement shall be governed by and construed in accordance with
the laws of the State of Michigan without reference to conflicts of
laws.
12. This Agreement sets forth the entire agreement and understanding of
the parties, and supersedes all prior agreements and understanding
between the parties with respect to the assignment. This Agreement shall
be binding on, and inure to the benefit of, the parties and their heirs,
successors and assigns.
13. This Agreement may be signed in counterparts, each of which shall be
an original and both of which taken together shall constitute one
agreement.
14. This Agreement may not be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against
which enforcement of such change, waiver, discharge or termination is
sought.
TRANSNATIONAL INDUSTRIES, INC.
By:/s/ Xxxxxxx X. Xxxxxx Xx.
Its: President
SPITZ, INC.
By:/s/ Xxxxxxx X. Xxxxxx Xx.
Its: President
COMERICA BANK
By:/s/ Xxxxxxx X. XxXxxxxxxx
Its: Vice President
(3)
