ASSUMPTION AND RELEASE AGREEMENT
This Assumption and Release Agreement ("Release") is entered
into and effective as of December 3, 1996, by and between INTEK
Diversified Corporation ("INTEK"), Midland USA, Inc. ("MUSA"), a
wholly owned subsidiary of INTEK, and Securicor Communications
Limited ("Securicor"). Capitalized terms not otherwise defined
herein shall have the meanings ascribed to them in the Loan
Agreement (the "Loan Agreement") dated as of September 19, 1996,
between Securicor and MUSA.
WHEREAS, MUSA and Securicor entered into (a) the Loan
Agreement and (b) the Security Agreement, dated as of September
19, 1996 (the "Security Agreement"), pursuant to which MUSA
granted a security interest in the collateral described therein
(the "Collateral") for the purpose of securing the obligations
under the Loan Agreement to Securicor;
WHEREAS, in connection with the Loan Agreement, INTEK and
Securicor entered into a Non-Recourse Guaranty and Pledge
Agreement, dated as of September 19, 1996 (the "Pledge
Agreement"), pursuant to which INTEK granted a security interest
in the collateral described therein (the "Pledge Agreement
Collateral") and a guarantee of prompt payment and performance of
MUSA's obligations under the Loan Agreement;
WHEREAS, pursuant to MUSA's obligations under the Loan
Agreement, MUSA made and delivered to Securicor a Revolving
Credit Note, dated September 19, 1996, for the amount of
$15,000,000 (the "Note");
WHEREAS, in connection with that certain Amended and
Restated Sale of Assets and Trademark Agreement, dated as of
September 19, 1996, by and between INTEK, Xxxxxxxx Capital
Limited, an Ontario corporation, and Midland International
Corporation, a Delaware corporation, INTEK agreed to assume the
obligations and liabilities of MUSA under the Loan Agreement; and
WHEREAS, as of the date hereof, the Loan Agreement is being
amended and restated (the "Amended and Restated Loan Agreement")
so as to, among other things, confirm the substitution of INTEK
as the "Borrower" thereunder and provide for certain other
matters.
NOW, THEREFORE, for good and valuable consideration, receipt
and sufficiency of which are hereby acknowledged, INTEK, MUSA and
Securicor hereby agree as follows:
1. INTEK hereby expressly assumes all outstanding
obligations and liabilities of MUSA under the Loan Agreement
("Assumed Obligations"), which Assumed Obligations shall become
part of the obligations and liabilities of INTEK under the
Amended and Restated Loan Agreement.
2. Securicor does hereby release, acquit and forever
discharge, effective as of the date first above written, each and
every security interest, lien, charge, encumbrance or other
interest granted to it with respect to Collateral under the
Security Agreement. Upon the execution and delivery of this
Release, Securicor shall deliver to MUSA such termination
statements on Form UCC-2 and other releases as are necessary to
effectuate the releases contemplated by this Section 2. MUSA and
Securicor agree that the Security Agreement is hereby terminated.
3. Securicor does hereby release, acquit and forever
discharge, effective as of the date first abovewritten, each and
every security interest, lien, charge, encumbrance or other
interest granted to it with respect to Pledge Agreement
Collateral. Upon the execution and delivery of this Release,
Securicor shall deliver to INTEK such termination statements on
Form UCC-2 and other releases as are necessary to effectuate the
releases contemplated by this Section 5. INTEK and Securicor
agree that the Pledge Agreement is hereby terminated and INTEK
acknowledges receipt of the stock certificate # 1 issued by MUSA
to INTEK and previously delivered to Securicor pursuant to the
Pledge Agreement.
4. Securicor does hereby release, acquit and forever
discharge, effective as of the date first above written, MUSA and
its successors and assigns from any and all outstanding
obligations and liabilities under the Loan Agreement. MUSA and
Securicor agree that the Loan Agreement is hereby terminated.
Securicor hereby cancels the Note and releases, acquits and
forever discharges, effective as of the date first above written,
MUSA and its successors and assigns from any and all outstanding
obligations and liabilities under the Note.
5. Securicor shall execute and deliver upon MUSA's or
INTEK's request therefor any and all termination statements,
additional agreements, releases, and other documents reasonably
necessary to effectuate the releases and terminations
contemplated by this Release.
6. In the event of any inconsistency between this Release
and the Loan Agreement, the terms of this Release shall prevail
and be binding on the parties hereto, however, in any event it is
understood and agreed that INTEK shall be released hereby from
any of its obligations, covenants or agreements under or in
connection with the Amended and Restated Loan Agreement.
7. This Release shall be binding upon and shall inure to
the benefit of each of the parties to this Release and its
successors and assigns.
8. This Release shall be governed by and construed in
accordance with the internal substantive laws of the State of
California.
9. INDEMNIFICATION. From and after the Closing, but
subject to the conditions and limitations set forth in this
Assumption and Release Agreement, INTEK shall defend, indemnify
and save MUSA and its directors, officers, employees, affiliates,
agents, successors and assigns harmless from and against any and
all loss, cost, damage or expense (including attorneys' fees)
whatsoever (the "Damages") resulting from or arising out of the
Assumed Obligations, whether arising prior to, on or after the
Effective Date.
10. NOTICES. All notices and other communications provided
for hereunder shall be in writing (including telegraphic, telex,
telecopy, or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered by hand, if
to INTEK at:
INTEK Diversified Corporation
000 Xxxx 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Manatt, Xxxxxx & Xxxxxxxx, LLP
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
to MUSA at:
Midland USA, Inc.
000 Xxxx 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
with a copy to
Xxxxxxx, Xxxxxxx & Xxxxxx, P.L.L.
One Cleveland Center
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
to Securicor at:
Securicor Communications Limited
Xxxxxx Xxxx Xxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxx SM I 4LD England
Attention:
Telecopy: (181)770-7000
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party
complying as to delivery with the terms of this Section. All
such notices and other communications shall, when mailed,
telegraphed, telexed, telecopied, cabled or delivered, be
effective seven days after being deposited in the mail in the
United States, or when delivered to the telegraph company,
confirmed by telex answerback, telecopied with confirmation or
receipt, delivered to the cable company, or delivered by hand to
the addressee or its agent, respectively.
11. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement shall in any event be effective
unless the same shall be in writing, approved and signed by the
parties hereto and then any such waiver or consent shall only be
effective in the specific instance and for the specific purpose
for which given.
12. NO WAIVER: REMEDIES.
(a) No failure on the part of either party 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, may be exercised singly
or concurrently, and are not exclusive of any remedies provided
by law.
(b) Failure by any party at any time or times
hereafter to require strict performance by any other person of
any of the provisions, warranties, terms or conditions contained
herein shall not waive, affect or diminish any right of any party
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 any party, or
any agent, officer or employee of such party.
13. SUCCESSORS AND ASSIGNS. This Agreement and all
obligations of the parties hereunder shall be binding upon the
successors and assigns of such parties.
14. GOVERNING LAW. This Agreement shall be governed by,
and be construed and interpreted in accordance with, the law of
the State of California. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but 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 and without invalidating the
remaining provisions of this Agreement.
15. SECTION TITLES. The Section titles contained in this
Agreement are and shall be without substantive meaning or content
of any kind whatsoever and are not a part of this Agreement.
IN WITNESS WHEREOF, the parties have entered into this
Release as of the date first written above.
