EXHIBIT 4.(ii)
LOAN AGREEMENT
--------------
STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF XXXXXX )
WHEREAS, this the 30th day of September, 1991, TEXAS BANK,
WEATHERFORD, as Lender, and ANTENNA PRODUCTS CORPORATION, hereinafter known as
Debtor, a Texas Corporation duly existing under the laws of the State of Texas
and having its principal place of business in Mineral Xxxxx, Palo Xxxxx County,
Texas, and Xxxx X. Xxxxxxx, and Xxxxxxx Enterprises, Inc. hereinafter known as
Guarantors, do all hereby enter into the following agreement whereby Lender
agrees to make available to the Debtor for an amount not to exceed ONE MILLION,
ONE HUNDRED FIFTY THOUSAND &
NO/100--------------------------($1,150,000.00)------------------------DOLLARS,
upon the following terms and condition:
I.
In consideration of the Bank's extending credit to Borrower,
Borrower hereby grants to Bank a security interest in (including, without
limitation, a lien on and pledge of) all of Borrower's Collateral (as
hereinafter defined).
The security interest and Deed of Trust liens are given to
and shall be held by Bank as security for the payment and performance of all
Obligations owed by Debtor.
During the continuance of the Agreement Borrower will, at
such intervals as Bank may request, notify Bank, upon a form satisfactory to
Bank, of all Collateral which has come into existence since the date hereof or
the date of the last such notification, including, without ae limitation, the
delivery of schedules of the collateral and/or proceeds resulting from the sale
or other disposition thereof.
II.
The above described note in the amount of $1,150,000.00 is
payable as follows:
Principal and interest shall be due and payable in monthly
installments in the amount of $9,980.00 each, said installments shall be due
and payable monthly on or before the 30th day of each month, commencing on
October 30, 1991 and continuing on the 30th day of each consecutive month
thereafter until maturity; of said monthly installment so paid, the money shall
first be applied to the payment of the interest due, and the balance shall be
applied to the payment of the principal sum. Interest on the hereinabove
described indebtedness shall be paid in accordance with the terms and
conditions of such note.
LOAN AGREEMENT - PAGE 1 OF 9
III.
The following definitions shall apply:
(a) "Collateral" shall include, without limitation, all of
borrower's present right, title and interest in or to any and all of the
following property, whether such property be now existing or hereafter created.
(i) Real Property, more fully described on attached Exhibit
"A" and as set out in the Appraisals made by Xxxx X. Xxxxx, MAI, dated November
5, 1988 and by Xxxxxxxx & Xxxxxxx, Inc. dated April 4, 1991.
(ii) Fixtures as described in Security Agreement;
(iii) All products of and accessions to any of the
Collateral;
(b) "Obligation(s)" shall include, without limitation, all
loans, advances, indebtedness, notes, liabilities and amount, liquidated or
unliquidated, owing by Borrower to Bank at any time, each of every kind, nature
and description, whether arising under this Agreement or otherwise, and whether
secured or unsecured, direct or indirect (that is, whether the same are due
directly by Borrower to Bank; or are due indirectly by Borrower to Bank as
endorser or guarantor; or as Obligor or Obligations due to third persons which
have been endorsed or assigned to Bank; or otherwise), absolute or contingent
due to become due, now existing or hereafter contracted. Said term shall also
include all interest and other charges chargeable to Borrower or due from
Borrower to Bank from time to time and all costs and expenses referred to in
Paragraph 7 of this Agreement.
(c) "Event of default" shall mean the occurrence of any one
or more of the following events:
(i) Borrower shall fail to pay any installment of principal
or interest on account of the Obligations when such payment is due.
(ii) Borrower shall fail to observe or perform any covenant
or agreement contained in this Agreement or in any instrument, document or
Agreement executed pursuant hereto.
(iii) Any warranty, representation or statement made or
furnished to Bank by or on behalf of Borrower proves to have been false in any
material respect when made or furnished.
(iv) Dissolution, termination of existence, insolvency or
business failure of Borrower.
(v) Borrower shall: (i) cease, be unable, or admit in writing
its inability to pay its debts as they mature, or make a general assignment for
the benefit of, or enter into any composition, trust mortgage or other
arrangement with creditors; (ii) apply for, or consent (by admission of
material allegations of a petition or otherwise) to the appointment of a
receiver, trustee or liquidator of Borrower or of a substantial part of its
assets, or authorize such application or consent, or proceedings seeking such
LOAN AGREEMENT - PAGE 2 OF 9
appointment shall be commenced against Borrower and continue undismissed for 30
days; or (iii) apply for, or consent (by admission of material allegations of a
petition or otherwise) to the application of any bankruptcy, reorganization,
readjustment of debt, insolvency, dissolution, liquidation or other similar law
of any jurisdiction, or authorize such application or consent, or proceeding to
such end shall be instituted against Borrower and remain unstayed and
undismissed for 30 days, be approved as properly instituted or result in
adjudication of bankruptcy or insolvency.
IV.
The terms of indebtedness are as follows:
(a) Such loan shall be secured by a pledge of 100% of the
Collateral, Real Estate and Fixtures as defined herein. Said Note will be
additionally secured by a separate Guaranty Agreement by Guarantor, Xxxx
Xxxxxxx, and Guarantor Xxxxxxx Enterprises, Inc. Said note will be additionally
secured by an assignment of life insurance on the life of Xxxx X. Xxxxxxx for
the sum of $1,000,000.00. The level of insurance can decrease through time such
that the proportional ratio of the life insurance policy to the remaining value
of the indebtedness will always equal or exceed the beginning ratio of
$1,000,000.00 insurance to $1,150,000.00 note value. Once the calculated amount
drops below $100,000.00, the requirement will be removed. In the event, the
life insurance required of guarantor should for any reason be paid to Texas
Bank, Weatherford, then in such event, Texas Bank, Weatherford shall, upon
receipt of such life insurance proceeds, assign and transfer the notes held by
it and owed by Antenna Products Corporation, to the Estate of Xxxx Xxxxxxx, and
pay all proceeds of the life insurance policy in excess of the amount then due
on said note.
(b) Guarantor will furnish to Lender the following
information:
(i) Sworn personal financial statement on a no less frequent
basis than annual.
(ii) Annual reviewed financial statement on Xxxxxxx
Enterprises as of its fiscal year end; and
(iii) Personal Tax return for 1990 and all subsequent years
as long as the guaranty is in force.
V.
Debtor shall perform the following terms and conditions
during the life of such loan:
(i) The Debtor, so long as the indebtedness provided for or
any part thereof is owed to the Lender, shall not merge into or consolidate
with any other corporation or company without first notifying Lender. Lender
shall have the option to continue said financing or require payment in full of
all indebtedness.
LOAN AGREEMENT - PAGE 3 OF 9
(ii) Notify Lender of top management changes in the company -
Chairman and Chief Executive Officer and President and General Manager.
(iii) Notify Lender of any changes in ownership of any class
of stock amounting to more than 10% of the stock during any twelve month
period.
(iv) Shall not pay any dividends or redeem any stock of more
than 5% interest without the consent of the Lender.
(v) Shall limit purchases or sale of equipment and fixed
assets to not more than $50,000.00 cumulative per year without Lender's
concurrence. Debtor shall submit a capital plan at the beginning of each fiscal
year detailing planned equipment purchases or sales for Lender approval. Any
increase from the capital plan must be approved by Lender.
(vi) Shall limit the salary of all owners and officers to
present levels unless a profit is shown the previous year. For the purposes of
this Agreement, an owner shall be defined as any individual shareholder, his or
her spouse or family unit, holding in excess of fifteen percent (15%) of the
capital stock. If the previous year was profitable, salaries may be raised the
amount of increase in cost of living for that year without Lender approval. The
cost of living index will be defined as the Data Resources Labor Indicies for
private industry. If the company's profit performance is 0 to 2.99% return on
sales, then the increase will be limited to the cost of living. If the company
profit performance is 3% to 5.99%, then the increase will be limited to two
times to the cost of living.
(vii) Shall not sell the business without concurrence of the
Lender and FMHA.
(viii) Promptly inform Lender in writing of (a) all material
adverse changes in Borrower's financial condition, and (b) all litigation and
claims and all threatened litigation and claims affecting Borrower or any
Guarantor which could materially affect the financial condition of Borrower or
the financial condition of any Guarantor.
(ix) Within thirty (30) days after the end of each calendar
month, Debtor will furnish to the Lender internally generated financial
statements including a balance sheet and an income statement. Within ninety
(90) days after the end of the year Debtor will furnish to the Lender an annual
audited financial statement.
(x) If requested by Lender, Debtor, at Debtor's expense will
furnish to Lender an updated appraisal acceptable to Lender of the equipment
and real estate every two (2) years, or as needed by Lender, but not more than
every two years.
(xi) Maintain working capital of not less than $1,000,000.00
(xii) Maintain a ratio of maximum debt to net worth of 7
(seven) to 1 (one)
LOAN AGREEMENT - PAGE 4 OF 9
(xiii) Shall not assume any liability debt or obligation
direct or contingent of any third party, without first obtaining the express
written consent and approval of Lender. VI. Borrower shall pay to Bank any and
all costs and expenses (including, without limitation, reasonable attorney's
fees, court costs, litigation and other expenses) incurred or paid by Bank in
establishing, maintaining, protecting or enforcing any of Bank's rights of the
Obligations, including, without limitation, any and all such costs and expenses
incurred or paid by Bank in defending Bank's security interest in title or
right to the Collateral or in collecting or attempting to collect or enforcing
or attempting to enforce payment of the Collateral.
VII.
Bank, or its representatives, at any time and from time to
time, shall have the right, and Borrower will permit them;
(a) to examine, check, make copies of or extracts from any of
Borrower's books, records and files (including, without limitations, orders and
original correspondence):
(b) to verify the Collateral or any portion or portions
thereof or the Borrower's compliance with the provisions of this Agreement.
VIII.
Borrower will execute and deliver to Bank any writing and do
all things necessary, effectual or requested by Bank to carry into effect the
provisions and intent of this Agreement, or to more fully vest in or assure to
Bank (including, without limitations, all steps to create and perfect) the
security interest in the Collateral granted to Bank by this Agreement or to
comply with applicable statute or law and to facilitate the collection of the
Collateral, including the furnishing, at Borrower's own cost and expense, at
such intervals as Bank may establish from time to time, of reports, financed
data and analyses satisfactory to Bank.
IX.
Borrower covenants with and warrants to Bank:
(a) That Borrower will maintain insurance on all real estate
and equipment against risks of fire (with customary extended coverage),
sprinkler leakage, theft and other risks customarily insured against by
companies engaged in businesses similar to that of Borrower in such amounts,
containing such terms, in such form, for such periods and written by such
companies as may be satisfactory to Bank, such insurance to be payable to Bank
as its interest may appear in the event of loss; the policies for the same
shall be deposited with Bank; and all such policies shall provide that they may
not be canceled without first giving at least ten (10) days written notice of
cancellation to Bank. In the event that Borrower fails to provide evidence of
the maintenance of such insurance satisfactory to Bank, Bank may, at its
option, secure such insurance and charge the cost thereof to Borrower and as a
debit charge in Borrower's loan account, if any, or any other deposit account
of Borrower with Bank. (b) That at the date hereof Borrower is (and as to
LOAN AGREEMENT - PAGE 5 OF 9
Collateral that Borrower may acquire after the date hereof, will be) the lawful
owner of the Collateral, and that the Collateral, and each item thereof, is,
will be, and shall continue to be free of all restrictions, liens,
encumbrances, or other right, title, or interest (other than the security
interest therein granted to Bank hereby), credits, defenses, recoupments,
set-offs or counterclaims whatsoever; that Borrower has and will have full
power and authority to grant to Bank a security interest and liens therein;
that Borrower has not transferred, assigned, sold, pledged, encumbered,
subjected to lien or granted any security interest in, and will not transfer,
assign, sell (except sales or other dispositions in the ordinary course of
business, pledge, encumber, subject to lien or grant any security interest in,
any of the Collateral (or any of Borrower's right, title or interest therein)
to any person other than Bank; that the Collateral is and will be valid and
genuine in all respects.
(c) That Borrower shall, during the term of this Agreement,
keep Bank currently and accurately informed in writing of each location where
Borrower's records relating to its accounts and contract rights respectively
are kept, and shall not remove such records, or any of them, to another state
without giving Bank at least thirty (30) days prior written notice thereof.
(d) That Borrower's principal place of business is correctly
stated in the preamble to this Agreement, that Borrower shall, during the term
of this agreement keep Bank currently and accurately informed in writing of
each of its other places of business, and that Borrower shall not change the
location of such principal place of business, or open any new, or close, move
or change an existing or new place of business without giving Bank at least
thirty (30 ) days prior written notice thereof.
(e) That Borrower will immediately notify Bank of any loss or
damage to, or material diminution in or any occurrence which would adversely
affect the value of the Collateral. In the event that Bank, in its sole
discretion, shall determine that there has been any such loss, damage or
material diminution in value, Borrower will, whenever Bank so requests, pay to
Bank within such period as Bank shall specify such amount as Bank, in its sole
discretion, shall have determined represents such loss, damage or material
diminution in value,
(f) That Bank may from time to time in Bank's discretion hold
and treat any deposits or other sums at any time credited by or due form Bank
to Borrower and any securities or other property of Borrower in the possession
of Bank, whether for safekeeping or otherwise, as Collateral security for an
apply or set the same off against any Obligations of Borrower to Bank. Without
limiting the generality of the foregoing.
(g) That at any time or times and whether or not an Event of
Default has occurred, Bank may notify any Debtor or Debtors of its security
interest in the Collateral and collect all amounts due thereon; and Borrower
agrees, at the request of Bank, to notify all or any of the Debtors in writing
of Bank's security interest in the Collateral in whatever manner Bank requests
and, if Bank so requests, to permit Bank to mail such notices at Borrower's
expenses.
LOAN AGREEMENT - PAGE 6 OF 9
(h) That all representations now or hereafter made by
Borrower to Bank, whether in this Agreement or in any supporting or
supplemental reports, statements or documentation, including, without
limitation, statements relating to the Collateral and financial statement, are,
will be, and shall continue to be true and correct in all respects.
(i) That Debtor is in compliance of all local, state, and
federal laws and regulations pertaining to hazardous substances.
(j) Borrower has no knowledge of any contamination from
hazardous substances of any real or personal property pledged as collateral for
this loan which is in violation of any such laws and regulations.
(k) Borrower assumes full responsibility for all costs
incurred in any clean-up involving hazardous substances and agrees to indemnify
Lender and FMHA against payment of any such costs, and further agrees to
execute a separate indemnifications agreement if demanded by Lender or FMHA.
(l) Until full repayment of the loan, Debtor shall promptly
notify Lender if it knows, suspects or believes there may be any hazardous
substance in or around the real property securing this loan or if Debtor and/or
such property are subject to any investigation by any Governmental Agency
pertaining to any hazardous substance.
In an Event of a monetary Default shall occur, at the
election of Bank, all Obligations shall become immediately due and payable
without notice or demand. In the event of a non-monetary default Borrower shall
have ten (10) days to cure the default.
Bank is hereby authorized, at its election, at any time or
times after the occurrence of an Event of Default, and without any further
demand or notice except to such extent as notice may be required by applicable
law, to sell or otherwise dispose of all or any of the Collateral at public or
private sale; and Bank may also exercise any and all other rights and remedies
of a secured party under the Code or which are otherwise accorded to it by
applicable law, all as Bank may determine. If notice of a sale or other action
by Bank is required by applicable law, Borrower agrees that five (5) days
written notice to Borrower, or the shortest period of written notice permitted
by such law, whichever is larger, shall be sufficient; and that to the extent
permitted by such law, Bank, its officers, attorneys and agents may bid and
become purchasers at any such sale, if public, and may purchase at any private
sale any of the Collateral that is of a type customarily sold on a recognized
market or which is the subject of widely distributed standard prices
quotations, and any sale (public or private) shall be free from any right of
redemption, which Borrower hereby waives and releases. No purchaser at any sale
(public or private) shall be responsible for the application of the purchase
money. Any balance of the net proceeds of sale remaining after paying all
direct Obligations of Borrower to Bank, and all costs and expenses, including,
without limitation, reasonable attorneys fees, and after retaining as
Collateral security or applying as Bank may elect (in whole or in part at any
time and from time to time) amounts equal to the aggregate of all other
Obligations of Borrower to Bank, shall be returned to Borrower; and if there is
a deficiency, Borrower shall be responsible for, the same, with interest.
LOAN AGREEMENT - PAGE 7 OF 9
XI.
Borrower waives notice of nonpayment, demand, presentment,
protest or notice of protest of the Collateral, and all other notices, consents
to any renewals or extensions of time of payment thereof, and generally waives
any and all suretyship defenses and defenses in the nature thereof. No delay or
omission of Bank in exercising or enforcing any of its rights, powers,
privileges, remedies, immunities or discretions (all of which are hereinafter
collectively referred to as "Bank's rights and remedies") hereunder shall
constitute a waiver thereof; and no waiver by Bank of any default of Borrower
hereunder should operate as a waiver of any other default hereunder. No term or
provision hereof shall be waived, altered or modified except with the prior
written consent of Bank, which consent makes explicit reference to this
Agreement. Except as provided in the preceding sentence, no other agreement or
transaction, of whatsoever nature, entered into between Bank and Borrower at
any time (whether before, during or after the effective date or term of this
Agreement, shall be construed in any particular as a waiver, modification or
limitation of any of Bank's rights and remedies under any such other agreement
or transaction), but all of Bank's rights and remedies not only under the
provisions of this Agreement but also of any such other agreement or
transaction shall be cumulative and not alternative or exclusive, and may be
exercised by Bank at such time or times and in such order of preference as Bank
in its sole discretion may determine.
XII. If any provision of this Agreement or portion of such
provision of the application thereof to any person or circumstance shall to any
extent be held invalid or unenforceable, the remainder of this Agreement (or
the remainder of such provision) and the application thereof to other persons
or circumstances shall not be affected thereby.
XIII.
This Agreement shall be binding upon and inure to the benefit
of the respective heirs, executors, administrators, legal representatives,
successors and assigns of the parties hereto, and shall remain in full force
and effect (and Bank shall be entitled to rely thereon, notwithstanding payment
of all Obligations of Borrower to Bank at any time or times) until terminated
as to future transactions by written notice from either party to the other
party of the termination hereof; provided that any such termination shall not
release or affect any Collateral in which Bank already has a security interest
or any Obligation incurred or rights accrued hereunder prior to the effective
date of such notice (as hereinafter defined) of such termination.
XIV.
Any notices under or pursuant to this Agreement shall be
deemed duly received by Borrower and effective if delivered in hand to any
officer or agent of Borrower, or if mailed by registered or certified mail,
return receipt requested, addressed to Borrower at Borrower's last address on
Bank's records.
LOAN AGREEMENT - PAGE 8 OF 9
Any notices to Bank under or pursuant to this Agreement shall
be mailed to Bank by registered or certified mail, returned receipt requested,
addressed to Bank as follows: Texas Bank, 000 X. Xxxx Xxxxxx, P. O. Xxx 000,
Xxxxxxxxxxx, Xxxxx 00000, and shall be deemed effective five (5) days after
receipt by Bank.
EXECUTED THIS THE 30th day of September, 1991.
GUARANTORS: TEXAS BANK
WEATHERFORD, TEXAS
/c/ Xxxx X.Xxxxxxx By:/s/ R.Xxxx Xxxxxx
-------------------------- ------------------------------
Xxxx Xxxxxxx, Individually R. Xxxx Xxxxxx, Vice President
XXXXXXX ENTERPRISES, INC ANTENNA PRODUCTS CORPORATION
By: /s/ Xxxx X.Xxxxxxx By: /s/ Xxxx X. Xxxxxx
------------------------ ------------------------------
Xxxx Xxxxxxx, President Xxxx Xxxxxx, President
LOAN AGREEMENT - PAGE 9 OF 9
(Corporate Acknowledgment)
STATE OF TEXAS
COUNTY OF XXXXXX
This instrument was acknowledged before me on the 30th
------------------------------------------------------
(Corporate Acknowledgment)
STATE OF TEXAS
COUNTY OF XXXXXX
This instrument was acknowledged before me on the 30th day of
September, 1991, by Xxxx Xxxxxx, President of Antenna Products Corporation, a
Texas Corporation, on behalf of said Corporation.
/s/ Xxxxxx Xxxxxx
-----------------------------
Notary Public, State of Texas
(Corporate Acknowledgement)
STATE OF TEXAS
COUNTY OF XXXXXX
This instrument was acknowledged before me on the 30th day of
September, 1991 by R. Xxxx Xxxxxx, Vice President of Texas Bank, Weatherford, a
Texas Corporation, on behalf of said Corporation.
/s/ Xxxxxx Xxxxxx
-----------------------------
Notary Public, State of Texas
(Acknowledgment)
STATE OF TEXAS COUNTY OF XXXXXX This instrument was
acknowledged before me on the 30th day of September, 1991 by Xxxx Xxxxxxx.
/s/Xxxxxx Xxxxxx
-----------------------------
Notary Public, State of Texas
