SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (this "Agreement") is made as of
this _31st_ day of March, 1997, by and among ▇▇▇▇▇▇▇▇ INDUSTRIES,
INC., a corporation organized and existing under the laws of the
Commonwealth of Virginia ("WII"), ▇▇▇▇▇▇▇▇ ENTERPRISES, INC., a
corporation organized and existing under the laws of the District
of Columbia ("WEI"), ▇▇▇▇▇▇▇▇ EQUIPMENT CORPORATION, a corporation
organized and existing under the laws of the District of Columbia
("WEC"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED, a corporation
formerly organized and existing under the laws of the State of
Maryland ("APCI"), ▇▇▇▇▇▇▇▇ STEEL ERECTION COMPANY, INC., a
corporation organized and existing under the laws of the
Commonwealth of Virginia ("WSECI"), UNION IRON WORKS COMPANY, a
corporation formerly organized and existing under the laws of the
State of Delaware ("UIWC"), IAF TRANSFER CORPORATION, a
corporation organized and existing under the laws of the
Commonwealth of Virginia and previously known as Industrial Alloy
Fabricators, Inc. ("IAFI"), CRANES UNLIMITED, INC., a corporation
formerly organized and existing under the laws of the Commonwealth
of Virginia ("CUI"), PIEDMONT METAL PRODUCTS, INC., a corporation
organized and existing under the laws of the Commonwealth of
Virginia ("PMPI"), ▇▇▇▇▇▇▇▇ MID-ATLANTIC HOLDINGS, INC., a
corporation formerly organized and existing under the laws of the
Commonwealth of Pennsylvania ("WMAHI"), formerly known as Delaware
Valley Erectors, Inc. ("DVEI"), CAPITOL TOWER CRANES, INC., a
corporation formerly organized and existing under the laws of the
Commonwealth of Virginia ("CTCI"), GREENWAY CORPORATION, a
corporation organized and existing under the laws of the State of
Maryland ("GC"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ CONSTRUCTION COMPANY, a
corporation formerly organized and existing under the laws of the
State of Texas and a debtor and debtor in possession ("JFBCC"),
HARBOR STEEL ERECTORS, INCORPORATED, a corporation formerly
organized and existing under the laws of the State of Maryland
("HSEI"), ▇▇▇▇▇▇▇▇ ENVIRONMENTAL SERVICES, INC., a corporation
organized and existing under the laws of the Commonwealth of
Virginia ("WESI"), ▇▇▇▇▇▇▇▇ ENTERPRISES OF VIRGINIA, INC., a
corporation organized and existing under the laws of the
Commonwealth of Virginia and formerly known as ▇▇▇▇▇▇▇▇ Marine
Construction Corporation ("WEVI"), ▇▇▇▇▇▇▇▇ INDUSTRIES INSURANCE
TRUST, a trust organized and existing under the laws of the
Commonwealth of Virginia ("WIIT"), ▇▇▇▇▇▇▇▇ BRIDGE COMPANY, a
corporation organized and existing under the laws of the
Commonwealth of Virginia ("WBC"), INTER-HARBOR HOLDING COMPANY,
INC., a corporation formerly organized and existing under the laws
of the State of Maryland ("IHHC"), HARBOR IRON WORKS, INC., a
corporation formerly organized and existing under the laws of the
State of Maryland ("HIWI") and CREATIVE IRON, INC., a corporation
formerly organized and existing under the laws of the Commonwealth
of Virginia ("CII"), ▇▇▇▇▇▇▇ ENGINEERING COMPANY, a corporation
formerly organized and existing under the laws of the State of
Texas ("BEC"), ▇▇▇▇▇▇▇ CONSTRUCTION COMPANY, a corporation
formerly organized and existing under the laws of the State of
Texas and a debtor and debtor in possession ("BCC") and WII REALTY
MANAGEMENT, INC., a corporation organized and existing under the
laws of the Commonwealth of Virginia ("WRMI") (WII, WEI, WEC,
APCI, WSECI, UIWC, IAFI, CUI, PMPI, WMAHI, CTCI, GC, JFBCC, WESI,
HSEI, WEVI, WIIT, WBC, IHHC, HIWI, CII, BEC, BCC and WRMI are
herein collectively referred to as the "Borrowers" and
individually as a "Borrower"); NATIONSBANK, N.A., a national
banking association, in its capacity as a lender, formerly known
as NationsBank of Virginia, N.A., formerly known as Sovran Bank,
N.A. ("NationsBank/Virginia"), NATIONSBANK, N.A., a national
banking association, successor by merger to American Security
Bank, N.A., a national banking association ("NationsBank/ASB" and,
collectively with NationsBank/Virginia, "NationsBank"), and the
FEDERAL DEPOSIT INSURANCE CORPORATION AS RECEIVER OF THE NATIONAL
BANK OF WASHINGTON (which receivership, or its predecessor bank,
is referred to as "NBW," and FEDERAL DEPOSIT INSURANCE CORPORATION
AS RECEIVER OF THE WASHINGTON BANK OF VIRGINIA (which
receivership, or its predecessor bank, is referred to as "TWB,"
and which two receiverships collectively are referred to as
"FDIC"); (NationsBank, NBW, TWB and the FDIC, in its capacity as
receiver for NBW and TWB, are herein collectively referred to as
the "Lenders" and individually as a "Lender"); and NATIONSBANK,
N.A., in its capacity as agent for the Lenders pursuant to the
Bank Group Loan Documents as hereinafter defined (the "Agent").
RECITALS
WHEREAS, the Borrowers (other than BCC, BEC, IHHC and WRMI),
CONCRETE STRUCTURES, INC., a former subsidiary of WII ("CSI"),
Concrete ERECTORS, Inc., a corporation organized and existing
under the laws of the Commonwealth of Virginia ("CEI"), ▇▇▇▇▇▇▇▇
MISCELLANEOUS ERECTION CO., INC., a corporation formerly organized
and existing under the laws of the Commonwealth of Virginia
("WMECI"), and Dominion Caisson Corporation, a former subsidiary
of WII ("DCC") applied to the Lenders for loans, advances and
other financial accommodations under the provisions of that
certain Amended and Restated Credit and Security Agreement dated
March 30, 1990 by and among CSI, CEI, WMECI, DCC and all of the
Borrowers (except for WBC, IHHC, BEC, BCC and WRMI), the Lenders
and the Agent, as amended by (i) that certain First Amendment to
Amended and Restated Credit and Security Agreement dated July 16,
1991 by and among CSI, CEI, WMECI, DCC and all of the Borrowers
(except for WBC, IHHC, BEC, BCC and WRMI), the Lenders and the
Agent, (ii) that certain Second Amendment to Amended and Restated
Credit and Security Agreement dated August 1, 1992 by and among
CSI, CEI, WMECI and all of the Borrowers (other than IHHC, BEC,
BCC and WRMI), the Lenders and the Agent, (iii) that certain Debt
Restructuring Agreement dated September 14, 1993 by and among the
Borrowers (other than WRMI), ▇▇▇▇▇▇▇▇ Miscellaneous Metals Group,
a general partnership among UIWC and CII ("WMMG"), the Lenders and
the Agent, and (iv) that certain Amended and Restated Debt
Restructuring Agreement dated as of November 30, 1994 by and among
the Borrowers (other than WRMI), the Lenders and the Agent, as
amended by a letter agreement dated on or about August 28, 1995
and a Second Modification to Amended and Restated Debt
Restructuring Agreement dated as of March 14, 1996 (the Amended
and Restated Credit and Security Agreement, as amended, restated,
supplemented and modified at any time and from time to time, is
herein collectively referred to as the "Credit Agreement"); and
WHEREAS, under and subject to the provisions of the Credit
Agreement, NationsBank/Virginia, NationsBank/ASB, and TWB agreed
(i) to make loans (collectively, the "Revolving Credit Loans" and
individually, a "Revolving Credit Loan") to the Borrowers (except
IHHC, BEC, BCC and WRMI) under a revolving credit facility in a
principal amount not to exceed, in the aggregate, Eight Million
Dollars ($8,000,000) and (ii) to make term loans to the Borrowers
(other than IHHC, BEC, BCC and WRMI) under a term loan facility in
the aggregate principal amount of Seventeen Million Dollars
($17,000,000). In addition, under and subject to the provisions
of the Credit Agreement, (i) NationsBank/Virginia, NationsBank/ASB
and NBW agreed to issue one or more letters of credit
(collectively, the "Letters of Credit" and individually, a "Letter
of Credit") under a letter of credit facility available to the
Borrowers (other than IHHC, BEC, BCC and WRMI) in a maximum
principal amount of Four Million Seven Hundred Thousand Dollars
($4,700,000) (the "Bank Group Letter of Credit Facility")
(although NBW did not fund its share of any drawings thereunder)
and (ii) NationsBank/Virginia agreed to issue one or more
additional letters of credit under a separate letter of credit
facility in a maximum principal amount of Sixty-Nine Thousand
Ninety-Six Dollars ($69,096); and
WHEREAS, the Revolving Credit Loans are evidenced by, and are
to be repaid with interest in accordance with, the terms and
conditions of (i) that certain Amended and Restated Revolving
Credit Note dated March 30, 1990 from CSI, CEI, WMECI, DCC and all
of the Borrowers (except for IHHC, WBC, BEC, BCC and WRMI), as
joint and several co-makers, payable to the order of
NationsBank/ASB, as amended by that certain Revolving Credit Note
Modification Agreement dated September 14, 1993 by and among WMMG,
all of the Borrowers (except BCC, BEC and WRMI) and
NationsBank/ASB and that certain Second Revolving Credit Note
Modification Agreement dated November 30, 1994 by and among CSI,
all of the Borrowers (except BCC, BEC and WRMI) and
NationsBank/ASB (as amended, restated, supplemented or otherwise
modified the "NationsBank/ASB Revolving Credit Note"), (ii) that
certain Amended and Restated Revolving Credit Note dated March 30,
1990 from CSI, CEI, WMECI, DCC, and all of the Borrowers (except
for IHHC, WBC, BEC, BCC and WRMI), as joint and several co-makers,
payable to the order of TWB, as amended by that certain Revolving
Credit Note Modification Agreement dated September 14, 1993 by and
among WMMG, all of the Borrowers (except BCC, BEC and WRMI) and
the FDIC, in its capacity as receiver for TWB and that certain
Second Revolving Credit Note Modification Agreement dated
November 30, 1994 by and among CSI, all of the Borrowers (except
BCC, BEC and WRMI) and the FDIC, in its capacity as receiver for
TWB (as amended, restated, supplemented or otherwise modified, the
"TWB Revolving Credit Note"), and (iii) that certain Amended and
Restated Revolving Credit Note dated March 30, 1990 from CSI, CEI,
WMECI, DCC and all of the Borrowers (except for IHHC, WBC, BEC,
BCC and WRMI), as joint and several co-makers, payable to the
order of Sovran Bank, N.A., predecessor in interest to
NationsBank/Virginia, as amended by that certain Revolving Credit
Note Modification Agreement dated September 14, 1993 by and among
WMMG, all of the Borrowers (except BCC, BEC and WRMI) and
NationsBank/Virginia and that certain Second Revolving Credit Note
Modification Agreement dated November 30, 1994 by and among CSI,
all of the Borrowers (except BCC, BEC and WRMI) and
NationsBank/Virginia (as amended, restated, supplemented or
otherwise modified, the "NationsBank/Virginia Revolving Credit
Note") (the NationsBank/ASB Revolving Credit Note, the TWB
Revolving Credit Note and the NationsBank/Virginia Revolving
Credit Note are herein collectively referred to as the "Revolving
Credit Notes"); and
WHEREAS, the Term Loans are evidenced by, and are to be
repaid with interest in accordance with, the terms and conditions
of (i) that certain Amended and Restated Term Note dated March 30,
1990 from CSI, CEI, WMECI, DCC, and all of the Borrowers (except
for IHHC, WBC, BEC, BCC and WRMI), as joint and several co-makers,
payable to the order of NationsBank/ASB in the original principal
amount of Three Million Nine Hundred Thirty-four Thousand Nine
Hundred Twenty-Seven Dollars ($3,934,927), as amended by that
certain Term Note Modification Agreement dated September 14, 1993
by and among WMMG, all of the Borrowers (except BCC, BEC and WRMI)
and NationsBank/ASB and that certain Second Term Note Modification
Agreement dated November 30, 1994 by and among CSI, all of the
Borrowers (except BCC, BEC and WRMI) and NationsBank/ASB (as
amended, restated, supplemented or otherwise modified, the
"NationsBank/ASB Term Note"), (ii) that certain Amended and
Restated Term Note dated March 30, 1990 from CSI, CEI, WMECI, DCC,
and all of the Borrowers (except for IHHC, WBC, BEC, BCC and
WRMI), as joint and several co-makers, payable to the order of TWB
in the original principal amount of One Million Nine Hundred
Sixty-Seven Thousand Four Hundred Sixty-Three Dollars
($1,967,463), as amended by that certain Term Note Modification
Agreement dated September 14, 1993 by and among WMMG, all of the
Borrowers (except BCC, BEC and WRMI) and TWB and that certain
Second Term Note Modification Agreement dated November 30, 1994 by
and among CSI, all of the Borrowers (except BCC, BEC and WRMI) and
the FDIC, in its capacity as receiver for TWB (as amended,
restated, supplemented or otherwise modified the "TWB Term Note"),
and (iii) that certain Amended and Restated Term Note dated March
30, 1990 from CSI, CEI, WMECI, DCC, and all of the Borrowers
(except for IHHC, WBC, BEC, BCC and WRMI), as joint and several
co-makers, payable to the order of Sovran Bank, N.A., predecessor
in interest to NationsBank/Virginia in the original principal
amount of Three Million Nine Hundred Thirty-Four Thousand Nine
Hundred Twenty-Seven Dollars ($3,934,927), as amended by that
certain Term Note Modification Agreement dated September 14, 1993
by and among WMMG, all of the Borrowers (except BCC, BEC and WRMI)
and NationsBank/Virginia and that certain Second Term Note
Modification Agreement dated November 30, 1994 by and among CSI,
all of the Borrowers (except BCC, BEC and WRMI) and
NationsBank/Virginia (as amended, restated, supplemented or
otherwise modified, the "NationsBank/Virginia Term Note") (the
NationsBank/ASB Term Note, the TWB Term Note and the
NationsBank/Virginia Term Note are herein collectively referred to
as the "Term Notes"); and
WHEREAS, the joint and several obligations of the Borrowers
(other than WRMI) under and in connection with the Bank Group
Letter of Credit Facility (the "Letter of Credit Obligations") are
evidenced by, and are to be repaid with interest in accordance
with, the terms and conditions of (i) that certain Amended and
Restated Letter of Credit Note dated March 30, 1990 from CSI, CEI,
WMECI, DCC, and all of the Borrowers (except for IHHC, WBC, BEC,
BCC and WRMI), as joint and several co-makers, payable to the
order of NationsBank/ASB, as amended by that certain Letter of
Credit Note Modification Agreement dated September 14, 1993 by and
among WMMG, all of the Borrowers (except BCC, BEC and WRMI) and
NationsBank/ASB and that certain Second Letter of Credit Note
Modification Agreement dated November 30, 1994 by and among CSI,
all of the Borrowers (except BCC, BEC and WRMI) and
NationsBank/ASB (as amended, restated, supplemented or otherwise
modified, the "NationsBank/ASB Letter of Credit Note") and
(ii) that certain Amended and Restated Letter of Credit Note dated
March 30, 1990 from CSI, CEI, WMECI, DCC, and all of the Borrowers
(except for IHHC, WBC, BEC, BCC and WRMI), as joint and several
co-makers, payable to the order of Sovran Bank, N.A., predecessor
in interest to NationsBank/Virginia, as amended by that certain
Letter of Credit Note Modification Agreement dated September 14,
1993 by and among WMMG, all of the Borrowers (except BCC, BEC and
WRMI) and NationsBank/Virginia and that certain Second Letter of
Credit Note Modification Agreement dated November 30, 1994 by and
among CSI, all of the Borrowers (except BCC, BEC and WRMI) and
NationsBank/Virginia (as amended, restated, supplemented or
otherwise modified, the "NationsBank/Virginia Letter of Credit
Note") (the NationsBank/ASB Letter of Credit Note and the
NationsBank/Virginia Letter of Credit Note are herein collectively
referred to as the "Letter of Credit Notes") (the Revolving Credit
Notes, the Term Notes, and the Letter of Credit Notes are herein
collectively referred to as the "Bank Group Notes" and
individually as a "Bank Group Note"); and
WHEREAS, the "Obligations" (as defined in the Credit
Agreement and herein collectively referred to as the "Bank Group
Obligations"), including, without limitation, the Revolving Credit
Loans, the Term Loans and the Letter of Credit Obligations, are
secured by, among other things, the Collateral as defined in the
Credit Agreement (as so defined, the "Collateral"). As used
herein and in the Credit Agreement, the term Collateral includes,
without limitation, all of each Borrower's now owned and hereafter
acquired chattel paper, contract rights, documents, instruments,
inventory, equipment, fixtures, accounts, and business records,
together with the stock of any of the Borrowers other than WII and
WRMI and includes, without limitation, (a) all of WII's rights in
the DCC Loan Documents as defined below, (b) that certain
promissory note in the original principal amount of Three Hundred
Twenty-Five Thousand Dollars ($325,000) and having an outstanding
principal balance as of the date hereof of Two Hundred Eighty-Two
Thousand Five Hundred Eighty-One Dollars ($282,581) from CSI and
payable to the order of WII and personally guaranteed by ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III and pledged to the Agent, (c) those 22,859
shares of Common Stock, $5.00 par value per share, of Atlas
Machine & Iron Works, Inc. owned by WII and pledged to the Agent,
(d) all rights of WEI and of WII, as transferee of WEI to payments
under the Navy Cranes Contract as defined in the Credit Agreement
and (e) all accounts and other assets of BCC (collectively, the
"Specified Collateral"). In addition, the Bank Group Obligations
are secured by (i) that certain Commercial Loan Deed of Trust
dated July 9, 1987 from WII to trustees for the Agent and the
Lenders and recorded in Clerk's Office of the Circuit Court of
Fairfax County, Virginia (the "Fairfax Recording Office") in Deed
Book 6787, page 500, as modified by a First Amendment to
Commercial Loan Deed of Trust dated March 30, 1990 and recorded in
the Fairfax Recording Office in Deed Book 7575, page 11 (as
amended, restated, supplemented or otherwise modified, the "Falls
Church Deed of Trust"), which Falls Church Deed of Trust covers
all of the right, title and interest of WRMI, as transferee from
WII, in and to certain real property located in Falls Church,
Virginia (the "Falls Church Property") and secures the Bank Group
Obligations to the extent of a maximum principal amount of Three
Million Two Hundred Thousand Dollars ($3,200,000), (ii) that
certain Commercial Loan Deed of Trust dated July 9, 1987 from WII
to trustees for the Agent and the Lenders and recorded in Clerk's
Office of the Circuit Court of Prince ▇▇▇▇▇▇▇ County, Virginia
(the "Prince ▇▇▇▇▇▇▇ Recording Office") in Deed Book 1493, page
1927, as modified by a First Amendment to Commercial Loan Deed of
Trust dated March 30, 1990 and recorded in the Prince ▇▇▇▇▇▇▇
Recording Office in Deed Book 1730, page 1589 (as amended,
restated, supplemented or otherwise modified, the "Manassas Deed
of Trust"), which Manassas Deed of Trust covers all of the right,
title and interest of WRMI, as transferee from WII, in and to
certain real property located in Manassas, Virginia (the "Manassas
Property") and secures the Bank Group Obligations to the extent of
a maximum principal amount of Two Million Dollars ($2,000,000),
(iii) that certain Commercial Loan Deed of Trust dated July 9,
1987 from PMPI and WII to trustees for the Agent and the Lenders
and recorded in Clerk's Office of the Circuit Court of Bedford
County, Virginia (the "Bedford Recording Office") in Deed Book
661, page 716, as modified by a First Amendment to Commercial Loan
Deed of Trust dated March 30, 1990 and recorded in the Bedford
Recording Office in Deed Book 762, page 56 (as amended, restated,
supplemented or otherwise modified, the "Bedford County Deed of
Trust"), which Bedford County Deed of Trust covers all of the
right, title and interest of PMPI and WII in and to certain real
property located in Bedford County, Virginia (the "Parcel 1
Bedford Property" and the "Parcel 2 Bedford Property",
respectively, and collectively, the "Bedford County Property") and
secures the Bank Group Obligations to the extent of a maximum
principal amount of Five Hundred Thousand Dollars ($500,000.00),
(iv) that certain Commercial Loan Deed of Trust dated July 9, 1987
from APCI to trustees for the Agent and the Lenders (as amended,
restated, supplemented or otherwise modified the "Baltimore Deed
of Trust"), which Baltimore Deed of Trust covers all of the right,
title and interest of APCI in and to certain real property located
in Baltimore, Maryland (the "Baltimore Property") and secures the
Bank Group Obligations to the extent of a maximum principal amount
of Two Hundred Thousand Dollars ($200,000), (v) that certain Deed
of Trust dated July 9, 1987 from JFBCC to trustees for the Agent
and the Lenders (as amended, restated, supplemented or otherwise
modified the "Dallas Parcel 2 Deed of Trust"), which Dallas Parcel
2 Deed of Trust covers all of the right, title and interest of
JFBCC in and to certain real property located in Dallas, Texas
(the "Second Dallas Property") and secures all of the Bank Group
Obligations, and (vi) all of the rights, title and interest of WII
in, to and under that certain loan made by WII to DCC on or about
March 4, 1992 (the "DCC Loan"), including, without limitation
(a) that certain Promissory Note dated March 4, 1992 from DCC, as
maker, payable to the order of WII in the original principal
amount of Two Hundred Twenty-Five Thousand Dollars ($225,000) (the
"DCC Note"), (b) that certain Security Agreement dated March 4,
1992 from DCC in favor of WII (the "DCC Security Agreement"), and
(c) that certain Deed of Trust dated March 4, 1992 from Dayton ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ to certain trustees for WII (the
"DCC Deed of Trust") (the DCC Note, the DCC Security Agreement,
the DCC Deed of Trust and any and all other agreements, documents
or instruments which evidence, secure or guaranty all or any
portion of the DCC Loan are herein collectively referred to as the
"DCC Loan Documents") (the Falls Church Property, the Manassas
Property, the Bedford County Property, the Baltimore Property and
the Second Dallas Property are herein collectively referred to as
the "Properties"). In addition to the foregoing, the Letter of
Credit Obligations are secured by the "L/C Collateral" as defined
in the Credit Agreement. The Credit Agreement, the Notes, the
Falls Church Deed of Trust, the Manassas Deed of Trust, the
Bedford County Deed of Trust, the Baltimore Deed of Trust, the
Dallas Parcel 2 Deed of Trust, and any and all other agreements,
documents or instruments that evidence, secure or guaranty payment
of all or any portion of the Bank Group Obligations are herein
collectively referred to as the "Bank Group Loan Documents"; and
WHEREAS, NationsBank/Virginia is also the owner and holder of
that certain Replacement and Consolidation Note executed and
delivered by WII and made payable to NationsBank/Virginia dated as
of September 14, 1993 in the original principal amount of Three
Million Two Hundred Twenty-three Thousand Ninety-one and 66/100
Dollars ($3,223,091.66) (the "NB Real Estate Note"), which was
issued pursuant to that certain Loan Restructuring Agreement dated
as of September 14, 1993 among WII, WEC, WEI, WSECI (WEC, WEI and
WSECI are collectively referred to as the "NB Guarantors") and
NationsBank/Virginia (as amended, restated, supplemented or
otherwise modified, the "NB Restructuring Agreement"); and
WHEREAS, the obligations of WII under the NB Real Estate Note
and the NB Restructuring Agreement (collectively, the "NB
Obligations") are secured by (i) that certain Commercial Loan Deed
of Trust dated October 22, 1985 from WII to trustees for
NationsBank/Virginia, as modified by that certain Modification of
Deed of Trust dated July 15, 1986 and that certain Deed of
Appointment of Substitute Trustees and Second Modification to Deed
of Trust dated as of September 14, 1993 and recorded in the
Fairfax Recording Office in Deed Book 6253, page 1974 and in the
Prince ▇▇▇▇▇▇▇ Recording Office in Deed Book 1345, page 1075, as
modified by a Modification of Deed of Trust dated July 15, 1986
and recorded in the Fairfax Recording Office in Deed Book 6452,
page 1274 and in the Prince ▇▇▇▇▇▇▇ Recording Office in Deed Book
1402, page 1892 and by a Deed of Appointment of Substitute
Trustees and Second Modification to Deed of Trust dated as of
September 14, 1993 and recorded in the Fairfax Recording Office in
Deed Book 8860, page 1327 and in the Prince ▇▇▇▇▇▇▇ Recording
Office in Deed Book 2075, page 1724 (as amended, restated,
supplemented or otherwise modified, the "NB Deed of Trust"), which
NB Deed of Trust covers all of the right, title and interest of
WII in and to the Falls Church Property and the Manassas Property,
is senior to the Falls Church Deed of Trust and the Manassas Deed
of Trust and secures the NB Obligations to the extent of a maximum
principal amount of Three Million One Hundred Thousand Dollars
($3,100,000), (ii) that certain Assignment of Leases and Rents
dated October 22, 1985 from WII to NationsBank/Virginia, as
amended by that certain Amendment of Assignment of Leases and
Rents dated July 16, 1986 (as amended, supplemented, restated or
otherwise modified, the "NB Lease Assignment"), (iii) that certain
Assignment of Leases, Rents and Profits dated September 14, 1993
from WII to NationsBank/Virginia and recorded in the Fairfax
Recording Office in Deed Book 8860, page 1332 and in the Prince
▇▇▇▇▇▇▇ Recording Office in Deed Book 2075, page 1724 (as amended,
supplemented, restated or otherwise modified, the "Additional NB
Lease Assignment"), (iv) that certain Guaranty of WEC dated
June 22, 1984, that certain Guaranty of WEI dated June 22, 1984,
that certain Guaranty of WSECI dated June 22, 1984, that certain
Unconditional Guaranty of WEI and WSECI dated October 22, 1985, as
amended by that certain Amendment to Unconditional Guaranty dated
July 15, 1986, that certain Guaranty of WEI dated October 22, 1985
and that certain Guaranty of WSECI dated October 22, 1985 (as
amended, supplemented, restated or otherwise modified,
collectively, the "NB Obligations Guaranties"; the NB Real Estate
Note, the NB Restructuring Agreement, the NB Deed of Trust, the NB
Lease Assignment, the Additional NB Lease Assignment, the NB
Obligations Guaranties, and any and all other agreements,
documents or instruments that evidence, secure or guaranty payment
of all or any portion of the NB Obligations are herein
collectively referred to as the "NB Loan Documents"); and
WHEREAS, WII transferred, subject to all encumbrances, to
WRMI the Falls Church Property and the Manassas Property pursuant
to a Deed dated November 27, 1996 and recorded in the Fairfax
Recording Office in Deed Book 9867, page 0893 and a Deed dated
November 27, 1996 and recorded in the Prince ▇▇▇▇▇▇▇ Recording
Office in Deed Book 2395, page 1191, respectively, and WII intends
to transfer, subject to all encumbrances, to WRMI on the Closing
Date the Parcel 2 Bedford Property; and
WHEREAS, as of March 17, 1997, the aggregate unpaid principal
balance and accrued and unpaid interest under each of the Bank
Group Notes and the NB Real Estate Note was as follows:
Note Principal Balance Accrued and
Unpaid
Interest
NationsBank/ASB Revolving Credit Note 288,728.12 83,937.09
NationsBank/Virginia Revolving Credit Note 797,581.08 178,454.16
NationsBank/ASB Term Note 669,523.19 105,440.63
NationsBank/Virginia Term Note 493,513.22 77,721.48
NationsBank/ASB Letter of Credit Note 1,506,822.28 614,804.41
NationsBank/Virginia Letter of Credit Note 1,427,733.60 581,920.42
Total 5,183,901.49 1,642,278.19
TWB Revolving Credit Note 890,824.45 161,899.30
TWB Term Note 437,926.95 69,159.45
Total 1,328,751.40 231,058.75
NB Real Estate Note 1,530,852.10 196,746.38
WHEREAS, (i) the Borrowers desire to make certain discounted
payments with respect to the Bank Group Obligations and the NB
Obligations such that, after giving effect thereto, all of the
Bank Group Obligations owing to the FDIC shall have been paid in
full and the Bank Group Obligations owing to NationsBank and the
NB Obligations shall have been paid in part, (ii) the Borrowers
and NationsBank desire to restructure a portion of the Bank Group
Obligations owing to NationsBank and a portion of the NB
Obligations, (iii) the Borrowers (other than WII) wish to become
jointly and severally liable for the NB Obligations and the
Borrowers wish to also secure the NB Obligations with the same
Collateral as currently secures the Bank Group Obligations and
(iv) WRMI desires to become a Borrower and assume all of WII's
obligations under the Falls Church Deed of Trust, the Manassas
Deed of Trust, the Bedford Deed of Trust, the NB Deed of Trust and
the Additional NB Lease Assignment;
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Agent, NationsBank, the FDIC
and the Borrowers hereby agree as follows:
ARTICLE I
SETTLEMENT
This Agreement sets forth the understandings and agreements
by and among the Borrowers and the Lenders regarding the
discounted payments with respect to the Bank Group Obligations and
the NB Obligations, the restructuring of a portion of the Bank
Group Obligations owing to NationsBank and a portion of the NB
Obligations and the additional joint and several liability and
collateral security for the NB Obligations.
Subject to and in accordance with the terms and conditions of
this Agreement, on the date when all of the conditions precedent
set forth in Article VI have been satisfied but in no event later
than March 31, 1997 (the "Closing Date"), the events specified in
this Article I shall occur.
Section 1.01 NationsBank Settlement. The Borrowers shall
cause to be delivered to NationsBank the following:
(a) $1,606,332.87 in immediately available funds;
(b) a Replacement and Consolidation Note in the original
principal amount of Two Million Dollars substantially in the form
of Exhibit A-1 hereto (the "First Replacement Note") pursuant to
which Bank Group Obligations owing to NationsBank in such
principal amount shall be restructured as more fully described in
Article II hereof and consolidated, executed by each of the
Borrowers;
(c) a Replacement Note in the original principal amount of
Five Hundred Thousand Dollars substantially in the form of
Exhibit A-2 hereto (the "Second Replacement Note" and,
collectively with the First Replacement Note, the "Replacement
Notes") pursuant to which NB Obligations owing to NationsBank in
such principal amount shall be restructured as more fully
described in Article II hereof, executed by each of the Borrowers;
(d) an Interest Bearing Convertible Debenture executed by WII
substantially in the form of Exhibit B hereto in the original
principal amount of Four Hundred Ten Thousand Dollars ($410,000)
and convertible at the option of NationsBank for shares of Common
Stock, par value $.10 per share, of WII (the "WII Common Stock")
representing sixteen and four-tenths of one percent (16.4%) of the
shares of WII Common Stock outstanding on a fully diluted basis as
of the date of such conversion (the "NB Debenture");
(e) a Guaranty of WII's obligations under the NB Debenture
substantially in the form of Exhibit C hereto (the "NB Guaranty")
executed by each of the Borrowers other than WII; and
(f) a Registration Rights Agreement substantially in the form
of Exhibit D hereto (the "Registration Rights Agreement") executed
by WII and the FDIC.
In consideration of the foregoing, the release by the Borrowers of
NationsBank and others from certain liability pursuant to the
release provisions contained in Section 7.01 hereof and the
additional joint and several liability and collateral security for
the NB Obligations provided pursuant to the Second Replacement
Note and Section 8.10 hereof, and subject to the terms and
conditions contained in this Agreement, NationsBank hereby agrees
to (i) accept such deliveries as payment in full of (A) all of the
Bank Group Obligations owing to NationsBank other than the Two
Million Dollars ($2,000,000) in principal amount thereof to be
evidenced by the First Replacement Note and (B) all of the NB
Obligations outstanding as of the date hereof other than Five
Hundred Thousand Dollars ($500,000) in principal amount thereof to
be evidenced by the Second Replacement Note and (ii) release or,
in the case of WBC, assign to CIT the Agent's existing liens, if
any, on all personal property and proceeds thereof owned by GC,
PMPI (except to the extent such liens exist pursuant to the
Bedford Deed of Trust), WBC, WEC and WSECI (collectively, the
"Released Collateral").
Section 1.02 FDIC Settlement. The Borrowers shall cause to
be delivered to the FDIC the following:
(a) $501,933.62 in immediately available funds;
(b) an Interest Bearing Convertible Debenture executed by WII
substantially in the form of Exhibit B hereto in the original
principal amount of Ninety Thousand Dollars ($90,000) and
convertible at the option of the FDIC for shares of Common Stock,
par value $.10 per share, of WII (the "WII Common Stock")
representing three and six-tenths of one percent (3.6%) of the
shares of WII Common Stock outstanding on a fully diluted basis as
of the date of such conversion (the "FDIC Debenture" and,
collectively with the NB Debenture, the "Debentures");
(c) a Guaranty of WII's obligations under the FDIC Debenture
substantially in the form of Exhibit C hereto (the "FDIC
Guaranty") executed by each of the Borrowers other than WII; and
(d) the Registration Rights Agreement executed by WII and
NationsBank.
In consideration of the foregoing and the release by the Borrowers
of the FDIC and others from certain liability pursuant to the
release provisions contained in Section 7.01 hereof, and subject
to the terms and conditions contained in this Agreement, the FDIC
hereby agrees to (i) accept such deliveries as payment in full of
the Bank Group Obligations owing to the FDIC and (ii) acknowledge
that it shall no longer have any interest, directly or through the
Agent, in any of the Collateral and that its agency relationship
with the Agent pursuant to the Bank Group Loan Documents shall
terminate in its entirety.
Section 1.03 Settlement. The effective consummation of each
of the transactions referred to in this Article I is referred to
herein as the "Settlement".
ARTICLE II
THE REPLACEMENT NOTES
The Bank Group Obligations owing to NationsBank after giving
effect to the Settlement and to be evidenced by the First
Replacement Note (hereinafter collectively referred to, together
with all other indebtedness, liabilities, obligations and duties
relating thereto owing to NationsBank pursuant to the Settlement
Documents and the Surviving Documents, whether existing on the
date of this Agreement or arising hereafter, direct or indirect,
joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by
contract, operation of law or otherwise, as the "Continuing BG
Obligations") shall be modified in accordance with the terms of
the First Replacement Note and this Article II and the NB
Obligations owing to NationsBank after giving effect to the
Settlement and to be evidenced by the Second Replacement Note
(hereinafter collectively referred to, together with all other
indebtedness, liabilities, obligations and duties relating thereto
owing to NationsBank pursuant to the Settlement Documents and the
Surviving Documents, whether existing on the date of this
Agreement or arising hereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated
or unliquidated, secured or unsecured, arising by contract,
operation of law or otherwise, as the "Continuing NB Obligations"
and, collectively with the Continuing BG Obligations, the
"Continuing Obligations") shall be modified in accordance with the
terms of the Second Replacement Note and this Article II.
Section 2.01 Payment Schedule and Maturity Date. (a) Prior
to final maturity, the First Replacement Note shall be due and
payable in installments of $21,221.38 each, inclusive of interest,
based on a twenty (20) year amortization schedule for $2,500,000
in principal and interest accruing at a fixed rate of eleven
percent (11%) per annum. The first installment shall be due and
payable on May 1, 1997 and a like installment shall be due and
payable on the first day of each succeeding month thereafter;
provided, however, that on December 31, 1997, the final maturity
of the First Replacement Note, the entire principal balance of the
First Replacement Note then unpaid and all accrued interest then
unpaid shall be finally due and payable.
(b) Prior to final maturity, the Second Replacement Note
shall accrue interest at a fixed rate of eleven percent (11%) per
annum which shall be due and payable commencing on May 1, 1997 and
on the first day of each succeeding month thereafter. On
December 31, 1997, the final maturity of the Second Replacement
Note, the entire principal balance of the Second Replacement Note
then unpaid and all accrued interest then unpaid shall be finally
due and payable.
Section 2.02 Prepayments. Any of the Borrowers may make
optional prepayments of the outstanding principal under the
Replacement Notes at any time and such prepayments shall be
applied first, to reduce the outstanding principal amount of the
Second Replacement Note and second, to reduce the scheduled
payments of principal under the First Replacement Note pursuant to
Section 2.01(a) in the inverse order of maturity; provided,
however, that so long as at the time of any such prepayment no
Default shall have occurred and be continuing, such prepayment
shall be applied first, to the payment of any interest currently
accrued and unpaid or to accrue and be payable within the next
thirty (30) days, second, to the payment of any principal
currently due or to become due within the next thirty (30) days
and third, as otherwise provided in this sentence.
Section 2.03 Collateral Security. The Continuing BG
Obligations shall continue to be secured by the same Collateral
(other than the Released Collateral) which currently secures the
Bank Group Obligations. The Continuing NB Obligations shall
continue to be secured by the same Collateral which currently
secures the NB Obligations and shall also be secured by the same
Collateral (other than the Released Collateral) which currently
secures the Bank Group Obligations.
Section 2.04 Carve-Out Note. NationsBank shall continue to
hold that certain Carve-Out Promissory Note dated July 26, 1996
from APCI payable to the order of NationsBank in the original
principal amount of Two Hundred Thousand Dollars ($200,000) (the
"Carve-Out Note"). The Carve-Out Note shall evidence that portion
of the Continuing BG Obligations that are secured by the Baltimore
Deed of Trust. In the event of that the Carve-Out Note is
endorsed over to a third party as is currently contemplated by the
parties, the amount of any consideration received by NationsBank
for such endorsement (which the parties acknowledge may be less
than the face amount of the Carve-Out Note) shall be applied to
reduce the outstanding Continuing BG Obligations by such amount of
consideration.
ARTICLE III
DELIVERY OF DOCUMENTS
Section 3.01 Deliveries to the Lenders. On or before the
Closing Date, each of the Borrowers shall deliver or cause to be
delivered to NationsBank each of the following documents
(collectively, the "Closing Documents") and each of the following
payments to the FDIC and NationsBank, except to the extent waived
by the applicable Lender, all of which shall be in form and
substance satisfactory to NationsBank:
(a) Settlement Documents. This Agreement, the NB
Debenture, the FDIC Debenture, the NB Debenture Guaranty, the FDIC
Debenture Guaranty, the Registration Rights Agreement, the
Replacement Notes, UCC-1 Financing Statements between WRMI as
debtor and the Agent as secured party to be filed in such
locations as are necessary or advisable to perfect the Agent's
security interest in the Collateral held by WRMI (the "WRMI
UCC's"), a Second Amendment to Commercial Deed of Trust and
Assumption Agreement with respect to the Falls Church Deed of
Trust substantially in the form of Exhibit E-1 hereto, a Second
Amendment to Commercial Deed of Trust and Assumption Agreement
with respect to the Manassas Deed of Trust substantially in the
form of Exhibit E-2 hereto, a Second Amendment to Commercial Deed
of Trust and Assumption Agreement with respect to the Bedford Deed
of Trust substantially in the form of Exhibit E-3 hereto and a
Third Modification to Deed of Trust and Assumption Agreement with
respect to the NB Deed of Trust and the Additional NB Lease
Assignment substantially in the form of Exhibit E-4 hereto
(collectively, the "Assumption Agreements" and, collectively with
this Agreement, the NB Debenture, the FDIC Debenture, the NB
Debenture Guaranty, the FDIC Debenture Guaranty, the Registration
Rights Agreement, the Replacement Notes and the WRMI UCC's, the
"Settlement Documents"), pursuant to which (i) the references in
the Falls Church Deed of Trust, the Manassas Deed of Trust and the
Bedford Deed of Trust to the indebtedness secured thereby will
contain an express reference to the First Replacement Note and the
references in the NB Deed of Trust and the Additional NB Lease
Assignment to the indebtedness secured thereby will contain an
express reference to the Second Replacement Note and (ii) WRMI, as
transferee of the Falls Church Property, the Manassas Property and
the Parcel 2 Bedford Property, will expressly assume all of WII's
obligations under the Falls Church Deed of Trust, the Manassas
Deed of Trust, the Bedford Deed of Trust and the NB Deed of Trust
(collectively, the "Deeds of Trust") as well as the Additional NB
Lease Assignment, shall have been executed by each of the
Borrowers party thereto and delivered to the Agent.
(b) Title Policies. Pre-paid full coverage mortgagee
policies of title insurance or endorsements to existing policies
on the Falls Church Property, the Manassas Property and the
Bedford County Property (collectively, the "Real Property"), as
appropriate (the "Title Policies") on the ALTA Loan Policy-1970
form in the amounts specified by NationsBank, acceptable in all
respects to the Lender and issued by a title company (the "Title
Company") that is satisfactory to the Lender, in its sole and
absolute discretion, or an unconditional obligation on the part of
the Title Company for the issuance thereof pursuant to a
countersigned instruction letter approved by the Lender, which
Title Policies shall (i) insure that the Deeds of Trust constitute
a valid and recorded first or, in the case of the Falls Church
Deed of Trust and the Manassas Deed of Trust only, second lien
upon, and that WRMI or PMPI, as applicable, has a good and
marketable fee simple title interest in, the Real Property,
subject only to such matters affecting title to the Property as
are approved by NationsBank in writing, and, except as otherwise
expressly provided herein, will secure all of the Continuing BG
Obligations or in the case of the NB Deed of Trust only, the
Continuing NB Obligations, (ii) contain no exception as to survey
matters, (iii) provide affirmative coverage against filed and
unfiled mechanics' and materialmen's liens, (iv) include such
endorsements (including, without limitation, comprehensive, usury
and variable mortgage rate endorsements) as are required by the
Lender and (v) provide for such reinsurance as the Lender may
require.
(c) UCC Searches. NationsBank shall have received from
the Borrowers the results of all UCC, tax lien and judgment
searches conducted by or for the benefit of CIT.
(d) Insurance. Insurance policies or certificates
therefor evidencing the insurance coverages required by the
respective Deeds of Trust, the Baltimore Deed of Trust and the
Dallas Parcel 2 Deed of Trust. All such insurance policies shall
name NationsBank as mortgagee and "additional insured," shall
provide that with respect to NationsBank, the insurance shall not
be invalidated by any action or inaction by the applicable
Borrower, including, without limitation, any representations made
by such Borrower in the procurement of such insurance, shall
provide that they shall not be canceled or amended without at
least sixty (60) days' prior written notice to NationsBank and all
such insurance policies except liability insurance shall be first
payable in case of loss to NationsBank by means of a standard non-
contributory mortgagee clause (or endorsement); provided, however,
that in the case of any loss, NationsBank may, in its reasonable
discretion, permit the use of any such insurance proceeds, and
make the same available, for the restoration of the damaged
Property covered by such insurance.
(e) Additional Collateral Information. Such other
information regarding the Collateral as the Lender may request.
(f) Required Payments. NationsBank and the FDIC shall
have received from the Borrowers the cash payments referred to in
Sections 1.01(a) and 1.02(a), respectively.
(g) Opinion of Counsel. The Borrowers shall have
delivered to the Lenders one or more opinions of counsel, opining,
among other things, that each of the Operating Borrowers has all
requisite power and authority to enter into the transactions that
are the subject of this Agreement and to execute and deliver each
of the Settlement Documents to which such Person is a party; that
each of the Settlement Documents has been duly and properly
executed and delivered by each of such Persons party thereto; and
that each of the Settlement Documents is and constitutes the
legal, valid and binding obligation of each of such Persons party
thereto, enforceable in accordance with its respective terms.
(h) Certificates of Incorporation; Good Standing;
Evidence of Revocation or Dissolution. Each of the Operating
Borrowers shall have delivered a copy of its Certificate or
Articles of Incorporation certified by and a Good Standing
Certificate issued by the Secretary of State or comparable
governmental authority of the jurisdiction of such Borrower's
incorporation. With respect to each of the Borrowers that is not
an Operating Borrower, such Borrower shall have delivered to the
Agent written evidence of the revocation of the charter or the
dissolution of such Borrower or such other written evidence that
such Borrower is not in good standing.
(i) Incumbency and Authorization. Each of the Borrowers
shall have provided evidence satisfactory to Agent of the
incumbency of the officers executing documents on behalf of such
Borrower, and copies, certified by a duly authorized officer to be
true and complete on and as of the Closing Date, of its
Certificate or Articles of Incorporation, its bylaws and the
records of all corporate action taken by such Borrower to
authorize its execution and delivery of each of the Settlement
Documents to which it is or is to become a party as contemplated
or required by this Agreement and its performance of all of its
agreements and obligations under each of such documents.
(j) Representations True, No Default. Each of the
representations and warranties of the Borrowers contained in this
Agreement, the other Settlement Documents or in any document or
instrument delivered pursuant to or in connection with this
Agreement shall be true as of the date as of which they were made
and shall also be true at and as of the Closing Date, with the
same effect as if made at and as of that time (except to the
extent of changes resulting from transactions contemplated or
permitted by this Agreement and the other Settlement Documents and
changes occurring in the ordinary course of business that singly
or in the aggregate are not materially adverse, and to the extent
that such representations and warranties relate expressly to an
earlier date) and no Default shall have occurred and be
continuing, and the Borrowers shall have delivered to the Lenders
a certificate to that effect.
(k) CIT/Pribyla Documents. The Borrowers shall have
delivered to the Lenders copies of all documents to be entered
into between any of the Borrowers on the one hand and The CIT
Group/Credit Finance, Inc. ("CIT") or ▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the
estate of ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, on the other, and all such documents
shall be in form and substance satisfactory to the Lenders.
Section 3.02 Deliveries to the Borrowers. On or before the
Closing Date, the Agent shall deliver or cause to be delivered to
the Borrowers each of the following documents, except to the
extent waived by the Borrowers:
(a) Discharges or releases by the Agent with respect to
the NB Deed of Trust, the NB Lease Assignment, the Additional NB
Lease Assignment and the Released Collateral, as requested by the
Borrowers and in form and substance satisfactory to the Agent,
along with such original motor vehicle titles as are in the
Agent's possession and relate to the Released Collateral.
(b) The original Bank Group Notes issued to the FDIC and
the original NB Real Estate Note to the extent they are in the
Lenders' possession.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement, each of
the Borrowers represents and warrants to each of the Lenders that,
each of the following are true and correct as of the Closing Date:
Section 4.01 Existence; Good Standing. Each of the
Operating Borrowers (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
of its incorporation, (ii) has all requisite corporate power and
authority and full legal right to own its property and to carry on
the business in which it is engaged and (iii) is duly qualified to
do business in each jurisdiction in which the transaction of its
business or the ownership of its property makes such qualification
necessary or appropriate.
Section 4.02 Authority; Execution of Agreement. Each of the
Borrowers is executing this Agreement and the other Settlement
Documents to which such Person is a party of such Person's own
free will and accord with full knowledge of the facts stated
herein and therein, and based upon the legal advice given to such
Person by such Person's attorneys. Each of the Borrowers has full
power and authority to execute and deliver this Agreement and the
other Settlement Documents to which such Person is a party, and to
enter into and perform the transactions that are the subject
hereof and thereof. This Agreement and each of the other
Settlement Documents executed and delivered on or prior to the
Closing Date constitute, and each of the other Settlement
Documents thereafter executed and delivered will constitute,
legal, valid and binding obligations of each of the Borrowers
party thereto, enforceable in accordance with their respective
terms.
Section 4.03 No Conflicts. The execution and delivery by
each of the Borrowers of this Agreement and the other Settlement
Documents to which such Borrower is a party and the performance of
such Borrower's respective obligations under this Agreement and
the other Settlement Documents to which such Borrower is a party,
in order to effectuate the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby,
do not and will not, to the extent applicable, (a) conflict with
any provision of such Borrower's articles of incorporation or
bylaws, (b) violate any order of any court or governmental
authority or (c) conflict with or result in a breach or constitute
a default or require any consent under, or result in the creation
of any lien, charge or encumbrance upon any of such Borrower's
property or assets (other than that created pursuant to the
Settlement Documents) or result in the acceleration of such
Borrower's indebtedness pursuant to any agreement, instrument or
indenture to which such Borrower is a party or by which such
Borrower or any of such Borrower's properties may be bound or
affected. No consent, approval, authorization or order of, and no
notice to or filing with, any court or governmental authority or
third party is required in connection with the execution of,
delivery by or performance by any of the Borrowers under this
Agreement and the other Settlement Documents to which such
Borrower is a party, or to consummate any of the transactions
contemplated by this Agreement and the other Settlement Documents
to which such Borrower is a party.
Section 4.04 No Bankruptcy. Except as set forth on
Schedule 4.04 attached hereto, none of the Borrowers has made an
assignment for the benefit of creditors, or filed or intends to
file a petition in bankruptcy, or been adjudicated insolvent or
bankrupt, or petitioned a court for the appointment of any
receiver or custodian of or trustee for it or any substantial part
of its property, or commenced any proceeding relating to any of
the Borrowers under any reorganization, rearrangement,
readjustment of debt, dissolution, rehabilitation or liquidation
law or statute of any jurisdiction, nor do any of the Borrowers
contemplate so doing.
Section 4.05 Insolvency Litigation. Except as set forth on
Schedule 4.05 attached hereto, no proceeding of the nature
described in Section 4.04 has been threatened, commenced or is
pending against any of the Borrowers nor has any order for relief
been entered with respect to any of the Borrowers under the
Federal Bankruptcy Code or any state insolvency laws.
Section 4.06 Litigation. Except as set forth on
Schedule 4.06 attached hereto, there are no pending, threatened or
reasonably anticipated actions, suits or proceedings before or by
any court or administrative agency that (a) question the validity
of this Agreement or any of the other Settlement Documents,
(b) seek to restrain or prohibit or obtain damages or a discovery
order in respect of this Agreement or the consummation of the
transactions contemplated hereby, (c) pertain to any of (i) the
Real Property or the existence on or release from the Real
Property of any Hazardous Substances as hereinafter defined, or
(ii) any other the other Collateral or (d) are likely in any case
or in the aggregate to affect the consummation or the
effectiveness of the transactions contemplated hereby or to have
or result in a material adverse change in the business,
operations, prospects, properties, assets or condition (financial
or otherwise) of any Borrower (with respect to such Borrower, a
"Material Adverse Effect").
Section 4.07 Title. Each of the Borrowers owns good, clear,
record and marketable title in fee simple to such Borrower's
properties and assets constituting Collateral and such properties
and assets are free and clear of any and all material liens,
encumbrances or other interests, except as set forth on
Schedule 4.07 attached hereto and except as set forth in the title
insurance commitment issued to NationsBank in connection with the
Real Property, if any, owned by such Borrower.
Section 4.08 Eminent Domain. No condemnation or eminent
domain proceeding has been commenced or is threatened that would
involve or result in the taking of any portion of the Properties
and none of the Borrowers is aware of any contemplated
condemnation or eminent domain proceeding which might affect all
or any portion of the Properties.
Section 4.09 Bills and Expenses. The unpaid bills and
expenses listed on Schedule 4.09 attached hereto, are (a) the only
outstanding obligations relating to the Real Property as of the
Closing Date in excess of $10,000 in the aggregate with respect to
any Person, all of which obligations shall be paid in full on the
Closing Date, and (b) to the best of the Borrowers' knowledge
after due inquiry, the only outstanding obligations relating to
the other Properties as of the Closing Date in excess of $10,000.
Section 4.10 Mechanics' Liens. No action has been taken,
suffered or permitted that would establish, cause or permit the
imposition, inception or priority of any mechanics' or
materialmen's lien (statutory, constitutional or otherwise) upon
the Real Property or any part thereof or interest therein relating
to outstanding obligations owing to any Person in excess of
$10,000 in the aggregate with respect to any Person, except as
described on Schedule 4.10 attached hereto.
Section 4.11 Environmental Compliance. To the best of the
Borrowers' knowledge:
(a) none of the Borrowers or any operator of the
Properties or any operations thereon is in violation, or alleged
violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without
limitation, those arising under the Resource Conservation and
Recovery Act ("RCRA"), the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 as amended ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986 ("▇▇▇▇"), the
Federal Clean Water Act, the Federal Clean Air Act, the Toxic
Substances Control Act, or any state or local statute, regulation,
ordinance, order or decree relating to health, safety or the
environment (hereinafter "Environmental Laws"), which violation
would have a material adverse effect on the environment or the
business, assets or financial condition of any of the Borrowers;
(b) none of the Borrowers has received notice from any
third party including, without limitation: any federal, state or
local governmental authority, (i) that any one of them has been
identified by the United States Environmental Protection Agency
("EPA") as a potentially responsible party under CERCLA with
respect to a site listed on the National Priorities List, 40
C.F.R. part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇ (1986); (ii) that any hazardous waste,
as defined by 42 U.S.C. Section 9601(5), any hazardous substances
as defined by 42 U.S.C. Section 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. Section 9601(33) and any toxic
substances, oil or hazardous materials or other chemicals or
substances regulated by any Environmental Laws ("Hazardous
Substances") which any one of them has generated, transported or
disposed of has been found at any site at which a federal, state
or local agency or other third party has conducted or has ordered
that any Borrower conduct a remedial investigation, removal or
other response action pursuant to any Environmental Law; or
(iii) that it is or shall be a named party to any claim, action,
cause of action, complaint, or legal or administrative proceeding
(in each case, contingent or otherwise) arising out of any third
party's incurrence or costs, expenses, losses or damages of any
kind whatsoever in connection with the release of Hazardous
Substances;
(c)(i) no portion of the Properties has been used for the
handling, processing, storage or disposal of Hazardous Substances
except in accordance with applicable Environmental Laws; and no
underground tank or other underground storage receptacle for
Hazardous Substances is located on any portion of the Properties;
(ii) in the course of any activities conducted by the Borrowers or
operators of their properties, no Hazardous Substances have been
generated or are being used on any portion of the Properties
except in accordance with applicable Environmental Laws;
(iii) there have been no releases (i.e. any past or present
releasing, spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, disposing or dumping)
or threatened releases of Hazardous Substances on, upon, into or
from the properties of the Borrowers, which releases would have a
material adverse effect on the value of any of the Properties or
adjacent properties or the environment; (iv) there have been no
releases on, upon, from or into any real property in the vicinity
of any of the Properties which, through soil or groundwater
contamination, may have come to be located on, and which would
have a material adverse effect on the value of, the Properties;
and (v) in addition, any Hazardous Substances that have been
generated on any of the Properties have been transported offsite
only by carriers having an identification number issued by the
EPA, treated or disposed of only by treatment or disposal
facilities maintaining valid permits as required under applicable
Environmental Laws, which transporters and facilities have been
and are operating in compliance with such permits and applicable
Environmental Laws; and
(d) None of the Borrowers or any of the Properties is
subject to any applicable environmental law requiring the
performance of Hazardous Substances site assessments, or the
removal or remediation of Hazardous Substances, or the giving of
notice to any governmental agency or the recording or delivery to
other Persons of an environmental disclosure document or statement
by virtue of the transactions set forth herein and contemplated
hereby, or as a condition to the recording of any Deed of Trust or
to the effectiveness of any other transactions contemplated
hereby.
Section 4.12 Compliance with Law and Permits. To the best
of the Borrowers' knowledge, the Properties and each of the
buildings or other improvements located thereon, as presently
existing, do not violate any applicable federal or state law or
governmental regulation, or any local ordinance, order or
regulation, or any permit or authorization issued thereunder,
including but not limited to laws, regulations or ordinances
relating to zoning, building use and occupancy, subdivision
control, fire protection, wetlands protection and protection of
the environment. All permits and approvals required by all
governmental requirements applicable to the Properties, including,
without limitation, all necessary building permits or permits of
occupancy, have been or will be, prior to the commencement of work
requiring such permits or approvals, issued by the appropriate
governmental authorities and the improvements.
Section 4.13 Taxes. Except as otherwise set forth on
Schedule 4.13 attached hereto, each of the Borrowers has filed or
caused to be filed all Federal, state and local income, excise,
property and other tax returns and informational reports which are
required to be filed, all such returns and reports are true and
correct, and each of the Borrowers has paid or has caused to be
paid all taxes as shown on such returns or on any assessment
received by any of them, to the extent that such taxes have become
due, including, but not limited to, all F.I.C.A. payments.
Section 4.14 Complete Disclosure. There are no undisclosed
facts or circumstances of which any of the Borrowers has knowledge
that could in any way have a material adverse effect on any of the
Collateral or its value.
Section 4.15 Financial Statements. The audited financial
statements of each of the Borrowers for the fiscal year ending
July 31, 1996 submitted to the Lenders are true, complete and
correct, fairly represent the financial condition of such Person
and, as applicable, the results of operations and changes in
financial position for the respective periods indicated, have been
prepared in accordance with, in the case of the Borrowers,
generally accepted accounting principles or, in the case of the
Partnerships, prepared on an income tax basis, which preparation,
in either case, shall be applied on a basis consistent with prior
periods, and fairly state the assets and liabilities of such
Person. As of the date of such financial statements, there are no
liabilities, direct or indirect, fixed or contingent, matured or
unmatured, of such Person which are not reflected therein. There
has been no Material Adverse Effect with respect to any Borrower
since the date of such financial statements.
Section 4.16 No Defaults. Except as set forth on
Schedule 4.16 attached hereto, none of the Borrowers is in default
under any contract, agreement, commitment or other instrument
which default could have a Material Adverse Effect with respect to
such Borrower, or in the performance of any covenants or
conditions respecting any of such Borrower's indebtedness.
Section 4.17 Utilities. Electric, gas, water, storm and
sanitary sewer, telephone lines and other utility facilities and
services are available and adequate to serve the Properties.
Section 4.18 No Wetlands. No portion of the Properties is
categorized as "wetlands" subject to restrictions under the Clean
Water Act, 33 U.S.C. Section Section 1251 et seq. As used herein,
the term "wetlands" means those areas that are inundated or
saturated by surface or ground water at a frequency and duration
sufficient to support, and that under normal circumstances, do
support a prevalence of vegetation typically adapted for life in
saturated soil conditions. Wetlands generally include swamps,
marshes, bogs and similar areas.
Section 4.19 True and Correct. All information and
documents furnished and to be furnished to the Lender pursuant to
this Agreement are true, accurate and complete in all material
respects. No representation or warranty by any of the Borrowers
contained in this Agreement or in any of the Settlement Documents,
contains any untrue statement of a material fact, or omits any
material fact or statement necessary to make the facts or
statements contained herein or therein not false or misleading.
Section 4.20 Capitalization of WII. The authorized capital
stock of WII will, on and as of the Closing Date, consists of
10,000,000 shares of Common Stock. A description of the Common
Stock and of the voting powers, rights and privileges thereof is
stated in WII's Articles of Incorporation, a true and correct copy
of which as of the date hereof and as of the Closing Date is
attached as Schedule 4.20 hereto.
Section 4.21 Authorization of the Issuance of the Debentures
and the Debenture Shares. WII has duly and property authorized
(a) the issuance to the Lenders of (a) the Debentures and (b) the
shares of Common Stock issuable by WII in the event of the
conversion of the NB Debenture and the FDIC Debenture (the
"Debenture Shares"). The Debentures have been issued in
compliance with the Securities Act of 1933, as amended (the
"Securities Act") and any applicable state securities laws and the
rules and regulations promulgated thereunder.
ARTICLE V
COVENANTS
The Borrowers covenant and agree that from the date here
until all of the Continuing Obligations are paid and performed in
full, the Borrowers will continue to comply in all respects with
the terms of the Settlement Documents and the Surviving Documents
and, in addition, the Borrowers will:
Section 5.01 Records. Maintain proper records and books of
account, in which complete entries are made in accordance with
generally accepted accounting principles, and permit the Lenders
and their duly authorized agents or representatives access, upon
request therefor and during normal business hours, to such books,
records, receipts and other data relating to the Borrowers and the
Collateral and to make extracts therefrom.
Section 5.02 Insurance. Maintain in full force and effect
the policies of insurance required to be maintained, in such
amounts and containing such provisions as are required under the
Deeds of Trust, the Baltimore Deed of Trust and the Dallas Parcel
2 Deed of Trust.
Section 5.03 Indebtedness. Pay all indebtedness or
obligations promptly and in accordance with their terms as the
same now exist or may be amended from time to time and pay and
discharge promptly all taxes, assessments and governmental fees,
charges or levies imposed upon each Borrower or such Borrower's
income or profits or upon such Borrower's properties or any part
thereof, before the same shall be in default, as well as all
lawful claims which, if unpaid, might become a lien or charge upon
such properties or any part thereof.
Section 5.04 Environmental Compliance. Any building
materials or other items located in or around the Properties which
qualify as Hazardous Substances or are otherwise unacceptable to
NationsBank in its reasonable judgment shall immediately be
removed from the Properties at the cost and expense of the
Borrowers. NationsBank shall have no obligation to inspect for or
discover such building materials or other items. The Borrowers
hereby agree on a joint and several basis to indemnify and hold
NationsBank harmless from and against any liability, loss or
expense (including reasonable attorneys' fees and disbursements)
which it may incur or sustain in connection with the existence or
removal of such Hazardous Substances relating to the Properties.
Section 5.05 Notices. Notify the Lenders promptly after
learning of (a) any action, suit or proceeding at law or in equity
or by or before any governmental authority involving any of the
Borrowers or any of the Collateral; (b) any condition or event
that constitutes, or with notice or lapse of time or both would
constitute, a Default; and (c) any material adverse change in the
condition (financial or otherwise) of any of the Borrowers. In
addition, the Borrowers will give the Lenders prior written notice
in the event that any of the Borrowers, regardless of whether it
is an Operating Borrower, shall (i) apply for or consent to the
appointment of a receiver, trustee or liquidator of such Borrower
or any of such Borrower's property or assets; (ii) be unable, or
admit in writing such Borrower's inability, generally to pay such
Borrower's debts as they mature; (iii) make a general assignment
for the benefit of creditors; or (iv) file a voluntary petition of
bankruptcy, or a petition or an answer seeking reorganization or
an arrangement with creditors or take advantage of any law or
statute pertaining to bankruptcy, reorganization, insolvency,
readjustment of debt, dissolution or liquidation, or similar
statute analogous in purpose and effect.
Section 5.06 Assurances; Expenses. At the request of
NationsBank, execute and deliver such financing statements,
documents and instruments, and perform all other acts as
NationsBank reasonably deems necessary or desirable, and pay, upon
demand, all costs and expenses (including reasonable attorneys'
fees and disbursements) incurred by the Lenders, in connection
with the administration or interpretation of any of the Settlement
Documents or the Surviving Documents, any amendments,
modifications, approvals, consents or waivers hereto, thereto,
hereunder or thereunder, the maintenance of any lien on any
collateral granted to NationsBank pursuant to any of the
Settlement Documents or the Surviving Documents, or the
enforcement of or preservation of rights under this Agreement or
any of the other Settlement Documents or the Surviving Documents
against any of the Borrowers. The liability of the Borrowers
under this Section 5.06 shall be joint and several.
Section 5.07 No Sale or Lien on Equity. Not sell, assign,
transfer, convey or encumber any interest held by any Borrower in
any of the Borrowers, without the prior written consent of
NationsBank.
Section 5.08 Compliance with Law and Permits. Ensure that
(a) the Properties and each of the buildings or other improvements
located thereon do not violate any applicable federal or state law
or governmental regulation, or any local ordinance, order or
regulation, or any permit or authorization issued thereunder,
including but not limited to laws, regulations or ordinances
relating to zoning, building use and occupancy, subdivision
control, fire protection, wetlands protection and protection of
the environment, of which they have knowledge and (b) all permits
and approvals required by all governmental requirements applicable
to the Properties, including, without limitation, all necessary
building permits or permits of occupancy, are or will be issued,
prior to the commencement of work requiring such permits or
approvals, by the appropriate governmental authorities and the
improvements.
Section 5.09 Certain Debenture Share Matters. WII covenants
and agrees as follows:
(a) If and when issued pursuant to the terms of the NB
Debenture or the FDIC Debenture, as applicable, the Debenture
Shares so issued will (i) be duly authorized, validly issued,
fully paid and non-assessable, (ii) be issued free from violation
of any preemptive or other right and (iii) be issued in compliance
with the Securities Act and any applicable state securities laws
and the rules and regulations promulgated thereunder. At the time
that any Debenture Shares are issued, WII will transfer to the
applicable Lender valid and indefeasible title to such Debenture
Shares free and clear of all liens and encumbrances.
(b) WII shall at all times keep reserved for issuance
such number of authorized shares of Common Stock constituting the
Debenture Shares as may be required to be issued upon any
conversion of the NB Debenture or the FDIC Debenture.
Section 5.10 UCC Searches. The Borrowers shall promptly,
and in any event within forty-five (45) days after the Closing
Date, deliver to the Agent copies of UCC searches conducted with
respect to the Collateral in all relevant jurisdictions to the
extent not delivered to the Agent on or before the Closing Date.
Section 5.11 Financial Covenants.
(a) Minimum Net Worth. Each of the Borrowers covenants
and agrees to cause WII's consolidated net worth to be not less
than One Million Dollars ($1,000,000) at all times.
(b) Current Ratio. Each of the Borrowers covenants and
agrees to cause the ratio of (a) the aggregate amount of WII's
consolidated cash, accounts receivable (net of allowances for
doubtful accounts), to the extent not already included in the
calculation of accounts receivable, costs and estimated earnings
in excess of ▇▇▇▇▇▇▇▇ on uncompleted contracts, and inventory to
(b) the aggregate amount of WII's consolidated accounts payable,
notes payable, current maturities of long-term debt (other than
the payments due on December 31, 1997 under the Replacement Notes)
and ▇▇▇▇▇▇▇▇ in excess of costs and estimated earnings to be
greater than 1.0:1.0 at all times.
ARTICLE VI
DEFAULTS
Section 6.01 Defaults. The occurrence of any one or more of
the following events shall constitute a "Default" hereunder:
(a) Any Borrower shall fail to pay, when due, any
principal, interest or any other sum payable hereunder, under
either Replacement Note, any Debenture, any other Settlement
Document or any Surviving Document (whether upon maturity thereof,
upon any installment payment date, upon any mandatory prepayment
date, upon acceleration or otherwise).
(b) Any representation or warranty of any Borrower made
herein or in any other Settlement Document shall prove to have
been incorrect in any material respect on or as of the date made
or deemed to have been made.
(c) Any Borrower shall fail to observe, satisfy or
perform any other term, covenant or agreement contained in this
Agreement, in any other Settlement Documents or in any Surviving
Document, and such failure shall continue unremedied for any grace
period applicable thereto.
(d) Any Borrower shall default beyond any applicable
grace period with respect to any indebtedness or contingent
obligations owing by such Borrower to any Lender or any third
party, including, without limitation, CIT, and involving an amount
in any such case of $25,000 or more.
(e) Any Operating Borrower (other than WEI) shall:
(i) apply for or consent to the appointment of a receiver, trustee
or liquidator of such Borrower or any of such Borrower's property
or assets; (ii) be unable, or admit in writing such Borrower's
inability, generally to pay such Borrower's debts as they mature;
(iii) make a general assignment for the benefit of creditors;
(iv) file a voluntary petition of bankruptcy, or a petition or an
answer seeking reorganization or an arrangement with creditors or
take advantage of any law or statute pertaining to bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or
liquidation, or similar statute analogous in purpose and effect or
(v) any action shall be commenced seeking an order for relief
against any Operating Borrower, or seeking reorganization,
arrangement or composition of such Borrower or such Borrower's
debts under any law or statute pertaining to bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or
liquidation, or similar statute analogous in purpose and effect.
(f) The issuance of any attachment or garnishment against
any Borrower as the debtor, which is not discharged within thirty
(30) days thereafter.
(g) One or more judgments or decrees in excess of $50,000
in any such case shall be entered against any Operating Borrower
(other than WEI) and shall not have been vacated, discharged,
stayed or bonded pending appeal within thirty (30) days from the
entry thereof.
(h) Any Borrower shall revoke or attempt to revoke any
Settlement Document or any Surviving Document.
Section 6.02 Remedies. Upon the occurrence and during the
continuance of any Default, then in each and in every such case,
the applicable Lender may, at any time thereafter, at the same or
different times, exercise and/or enforce any one or more of the
following remedies and/or rights either individually, in
combination, or cumulatively:
(a) Declare the Replacement Notes or the Debenture held
by such Lender to be due and payable, whereupon such Notes or
Debenture shall become immediately due and payable, as to both
principal and accrued and unpaid interest, and all fees and
expenses, without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived.
(b) Set-off, without notice to any Borrower, any and all
deposits (whether evidenced by passbook, certificate of deposit or
otherwise) and any other credits, indebtedness, claims or other
sums at any time held or owing by such Lender to or for the credit
of such Borrower against any amount due by such Borrower to such
Lender hereunder or under any other Settlement Document or under
any Surviving Document.
(c) Take any or all actions or exercise any or all of its
rights permitted under any or all of the Settlement Documents or
Surviving Documents.
(d) Take any or all other actions permitted at law or at
equity or by other appropriate proceedings whether to collect any
amounts due such Lender under the Settlement Documents or the
Surviving Documents, for specific performance, for any injunction,
or in aid of the exercise or execution of any right, remedy or
power granted herein or by law or equity, including, without
limitation, in the case of NationsBank, any right, remedy or power
to foreclose upon or otherwise liquidate all or any portion of the
Collateral.
Notwithstanding the foregoing, in the event a Default pursuant to
Section 6.01(e) shall occur, each of the Replacement Notes and the
Debentures shall automatically become due and payable.
Section 6.03 Remedies Cumulative. Each right, power and
remedy of the respective Lenders as provided for herein or in each
other Settlement Document and each Surviving Document, and now or
hereafter existing at law or in equity or by statute or otherwise
shall be cumulative and concurrent and shall be in addition to
every other right, power or remedy, and the exercise or beginning
of the exercise by a Lender of any one or more of such rights,
powers or remedies shall not preclude the simultaneous or later
exercise by either Lender of any or all such other rights, powers
or remedies.
Section 6.04 Waivers. To the extent permitted by law, each
of the Borrowers hereby (a) waives presentment, demand, protest
and notice of presentment, notice of protest and notice of
dishonor of any of the indebtedness under this Agreement, either
Replacement Note, any Debenture, any of the other Settlement
Documents or any Surviving Document and each and every notice of
any kind respecting this Agreement, either Replacement Note, any
Debenture, any of the other Settlement Documents or any Surviving
Document (except for notices of Default as may be provided herein
or therein), (b) agrees that the applicable Lender, at any time or
times, without notice to such Borrower or such Borrower's consent,
may grant extensions of time, without limit as to number or the
aggregate period of such extensions, for the payment of any
principal or interest due on either Replacement Note or a
Debenture, and (c) to the extent not prohibited by law and
specifically excluding federal bankruptcy law, waives the benefit
of any law or rule of law intended for such Borrower's advantage
or protection as a Borrower hereunder or providing for such
Borrower's release or discharge from liability hereon, in whole or
in part, on account of any facts or circumstances other than full
or complete payment of all amounts due under this Agreement, the
Replacement Notes, the Debentures, the other Settlement Documents
and the Surviving Documents. No renewal or extension of this
Agreement, either Replacement Note, any Debenture, any of the
other Settlement Documents or any of the Surviving Documents, no
release of any collateral, including all or any of the Collateral,
securing repayment of any obligations under either Replacement
Note, any Debenture, any of the other Settlement Documents or any
of the Surviving Documents, and no delay in enforcement of this
Agreement, either Replacement Note, any Debenture, any of the
other Settlement Documents or any of the Surviving Documents or in
exercising any right, power or remedy hereunder or under any of
the other Settlement Documents or any of the Surviving Documents,
provided by applicable law, or otherwise shall affect the
liability of any Borrower.
ARTICLE VII
RELEASES
Section 7.01 Release of Lenders. Effective as of the
Closing Date, the Borrowers, jointly and severally, on behalf of
themselves and all of their respective heirs, successors and
assigns, (a) do hereby remise, release, acquit, satisfy and
forever discharge each of the Lenders and their respective
parents, subsidiaries, affiliated corporations and real estate
investment trusts of the Lenders, and all of their respective
past, present and future officers, directors, shareholders,
employees, agents, attorneys, representatives, participants,
heirs, successors and assigns (collectively, the "Lender
Affiliates"), from any and all manner of debts, accountings,
bonds, warranties, representations, covenants, promises,
contracts, controversies, agreements, liabilities, obligations,
expenses, damages, judgments, executions, actions, claims, demands
and causes of action of any nature whatsoever, whether at law or
in equity, either now accrued or hereafter maturing, which any of
the Borrowers now has or hereafter can, shall or may have by
reason of any matter, cause or thing, from the beginning of the
world to and including the date of this Agreement with respect to
any matters, transactions, occurrences, agreements, actions or
events arising out of, in connection with or relating to (i) any
of the Bank Group Obligations or the NB Obligations, including,
but not limited to, the administration or funding by any Lender of
any of the loans or any other transaction giving rise to any of
such Obligations, or (ii) any of the Bank Group Loan Documents or
the NB Loan Documents (but specifically excluding the Settlement
Documents) and the transactions described therein or the
indebtedness or obligations evidenced and secured thereby; and
(b) do hereby covenant and agree never to institute or cause to be
instituted or continue prosecution of any suit or other form of
action or proceeding of any kind or nature whatsoever against any
of the Lender Affiliates, by reason of or in connection with any
of the foregoing matters, claims or causes of action; provided,
however, that the foregoing release and covenant not to ▇▇▇ shall
not apply to any claims arising after the Closing Date with
respect to acts, occurrences or events occurring after the Closing
Date.
Section 7.02 Release of Agent. The FDIC, on behalf of
itself and all of its heirs, successors and assigns, (a) does
hereby remise, release, acquit, satisfy and forever discharge the
Agent and its parents, subsidiaries, affiliated corporations and
real estate investment trusts of the Agent, and all of their
respective past, present and future officers, directors,
shareholders, employees, agents, attorneys, representatives,
participants, heirs, successors and assigns (collectively, the
"Agent Affiliates"), from any and all manner of debts,
accountings, bonds, warranties, representations, covenants,
promises, contracts, controversies, agreements, liabilities,
obligations, expenses, damages, judgments, executions, actions,
claims, demands and causes of action of any nature whatsoever,
whether at law or in equity, either now accrued or hereafter
maturing, which the FDIC now has or hereafter can, shall or may
have by reason of any matter, cause or thing, from the beginning
of the world to and including the date of this Agreement with
respect to any matters, transactions, occurrences, agreements,
actions or events arising out of, in connection with or relating
to any act or failure to act by the Agent in respect of (i) any of
the Bank Group Obligations or any portion of the Collateral and
(ii) any of the Bank Group Loan Documents; and (b) do hereby
covenant and agree never to institute or cause to be instituted or
continue prosecution of any suit or other form of action or
proceeding of any kind or nature whatsoever against any of the
Agent Affiliates, by reason of or in connection with any of the
foregoing matters, claims or causes of action; provided, however,
that the foregoing release and covenant not to ▇▇▇ shall not apply
to any claims arising after the Closing Date with respect to acts,
occurrences or events occurring after the Closing Date.
Section 7.03 Mutual Releases. At the request of either
Lender after the Borrowers' payment in full of all amounts owing
to and performance in full of all obligations for the benefit of
such Lender pursuant to the Settlement Documents and, in the case
of NationsBank, the Surviving Documents, the Borrowers and such
Lender shall enter into a mutual release substantially in the form
of Exhibit F hereto.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Recitals. All of the statements and facts
recited in the Recitals to this Agreement are true and correct as
of the Closing Date, and are incorporated by reference herein.
Section 8.02 Entire Agreement. This Agreement, the other
Settlement Documents and the Surviving Documents set forth the
entire understanding between the parties hereto relating to the
Settlement Documents and the Surviving Documents, and no
modification or amendment of or supplement to this Agreement, the
other Settlement Documents or the Surviving Documents shall be
valid or effective unless the same is in writing and signed by the
party against which enforcement of such is sought.
Section 8.03 Survival of Agreements; Cumulative Nature. All
representations, warranties, covenants, indemnities and agreements
in this Agreement shall survive the execution and delivery of this
Agreement and the execution of the other Settlement Documents
until thirteen (13) months from the date all of the Continuing
Obligations are paid in full. All covenants and agreements of
each of the Borrowers contained in any certificate or other
instrument delivered to the Lender pursuant to any of the
Settlement Documents or the Surviving Documents shall be deemed
agreements and covenants of such Borrower under this Agreement.
All representations and warranties of each of the Borrowers
contained in any other certificate or instrument delivered to the
Lender pursuant to any of the Settlement Documents or the
Surviving Documents shall be deemed to be representations and
warranties of such Borrower under this Agreement. The
representations, warranties, and covenants made in any of the
Settlement Documents, and the rights, powers, and privileges
granted to the Lender in any of the Settlement Documents, are
cumulative, and none of the Settlement Documents shall be
construed in the context of another to diminish, nullify, or
otherwise reduce the benefit to the Lender of any such
representation, warranty, covenant, right, power or privilege.
Section 8.04 Modifications and Waivers. No delay on the
part of the Lender in exercising any right, power or privilege
hereunder or under any of the other Settlement Documents shall
operate as a waiver thereof, nor as any waiver of any other
rights, power or privilege hereunder or thereunder. No single or
partial exercise of any right, power or privilege hereunder or
under any of the other Settlement Documents shall preclude any
other or further exercise thereof, or the exercise of any other
right, power or privilege hereunder or thereunder. All rights and
remedies provided herein and in the other Settlement Documents and
the Surviving Documents are cumulative and are not exclusive of
any rights or remedies that the parties hereto may otherwise have
at law or in equity, other than as expressly provided herein or
therein. Each Lender shall have the right to waive any of the
conditions precedent to its obligations under this Agreement or
under any of the other Settlement Documents. No waiver or
modification, discharge or amendment of this Agreement or of any
other Settlement Document will be valid in the absence of the
written and signed consent of the party against which enforcement
of such is sought. Each reference in any of the Settlement
Documents or any of the Surviving Documents to any of the other
Settlement Documents or Surviving Documents shall be deemed to
include all amendments, modifications or replacements thereof,
supplements thereto and substitutions therefor.
Section 8.05 Notices. All notices, requests, consents,
demands and other communications required or permitted under any
of the Settlement Documents or the Surviving Documents shall be in
writing and, unless otherwise specifically provided in any
Settlement Document or Surviving Document, shall be deemed
sufficiently given or furnished if delivered by a recognized,
national, overnight delivery service, prepaid, at the numbers and
addresses specified below (unless changed by similar notice in
writing given by the particular Person whose address is to be
changed). Any such notice or communication shall be effective
upon receipt and shall be deemed to have been received not later
than the day after deposit with such delivery service.
If to NationsBank: NationsBank, N.A.
Suite 800
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇ ▇▇▇▇▇, Vice President
Telecopier: (703) XXX-XXXX
With a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (202) XXX-XXXX
If to the FDIC: Federal Deposit Insurance
Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:
Telecopier:
If to the Borrowers: c/▇ ▇▇▇▇▇▇▇▇ Industries, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Telecopier (703) XXX-XXXX
Section 8.06 SEAL; GOVERNING LAW. THIS AGREEMENT IS
INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT. THIS AGREEMENT
AND EACH OF THE SETTLEMENT DOCUMENTS SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS (EXCEPT RULES
REGARDING CONFLICT OR CHOICE OF LAWS) OF THE COMMONWEALTH OF
VIRGINIA AND THE LAWS OF THE UNITED STATES OF AMERICA.
Section 8.07 Arbitration. Any controversy or claim between
or among the parties hereto including but not limited to those
arising out of this Agreement, ANY OTHER SETTLEMENT DOCUMENT OR
ANY SURVIVING DOCUMENT, or instruments, including any claim based
on or arising from an alleged tort, shall be determined by binding
Arbitration in accordance with the Federal Arbitration Act (or if
not applicable, the applicable state law), the rules of practice
and procedure for Arbitration of commercial disputes of
J.A.M.S./Endispute or any successor thereof (J.A.M.S.) and the
"Special Rules" set forth below. In the event of any
inconsistency, the Special Rules shall control. Judgment upon any
Arbitration award may be entered in any court having jurisdiction.
Any party to this Agreement, ANY OTHER SETTLEMENT DOCUMENT OR ANY
SURVIVING DOCUMENT may bring any action, including a summary or
expedited proceeding, to compel arbitration of any controversy or
claim to which this Agreement, ANY OTHER SETTLEMENT DOCUMENT OR
ANY SURVIVING DOCUMENT applies in any court having jurisdiction
over such action.
(A) Special Rules. The Arbitration shall be conducted in
the county of any borrower's domicile or in the county where ANY
collateral is located at the time of this Agreement's execution,
and administered by J.A.M.S. who will appoint an Arbitrator; if
J.A.M.S. is unable or legally precluded from administering the
Arbitration, then the American Arbitration Association will serve.
All Arbitration hearings will be commenced within NINETY (90) days
of the Demand for Arbitration; further, the Arbitrator shall only,
upon a showing of cause, be permitted to extend the commencement
of such hearing for an additional SIXTY (60) days.
(B) Reservation of Rights. Nothing in this Agreement,
ANY OTHER SETTLEMENT DOCUMENT OR ANY SURVIVING DOCUMENT shall be
deemed to (I) limit the applicability of any otherwise applicable
statutes of limitation or repose and any waivers contained in this
Agreement, ANY OTHER SETTLEMENT DOCUMENT OR ANY SURVIVING
DOCUMENT; or (II) be a waiver by EITHER LENDER of the protection
afforded to it by 12 U.S.C. Section 91 or any substantially
equivalent state law; or (III) limit the right of THE AGENT OR
EITHER LENDER (A) to exercise self help remedies such as (but not
limited to) setoff, or (B) to foreclose against any real or
personal property collateral, or (C) to obtain from a court
provisional or ancillary remedies such as (but not limited to)
injunctive relief, writ of possession or the appointment of a
receiver. THE AGENT OR, TO THE EXTENT APPLICABLE, EITHER LENDER
may exercise such self help rights, foreclose upon such property,
or obtain such provisional or ancillary remedies before, during or
after the pendency of any arbitration proceeding brought pursuant
to this Agreement, ANY OTHER SETTLEMENT DOCUMENT OR ANY SURVIVING
DOCUMENT. Neither the exercise of self help remedies nor the
institution or maintenance of any action for foreclosure or for
provisional or ancillary remedies shall constitute a waiver of the
right of any party, including the claimant in such action, to
arbitrate the merits of the controversy or claim occasioning
resort to such remedies.
(C) NO ARBITRATION INVOLVING THE FDIC. NOTWITHSTANDING
ANY PROVISION CONTAINED IN THIS SECTION 8.07 TO THE CONTRARY, NO
CONTROVERSY OR CLAIM INVOLVING THE FDIC SHALL BE REQUIRED TO BE
DETERMINED BY BINDING ARBITRATION AS OTHERWISE PROVIDED IN THIS
SECTION 8.07.
Section 8.08 Consent to Jurisdiction and Service; WAIVER OF
JURY TRIAL. In the event that any controversy or claim is unable
to be or legally precluded from being or has the FDIC as a party
thereto and is therefore not required to be determined by binding
arbitration in accordance with the provisions of Section 8.07,
then in such instance(s) and only in such instance(s), each of the
Borrowers absolutely and irrevocably consents and submits to the
jurisdiction of the courts of the District of Columbia and the
Commonwealth of Virginia located in the Eastern District thereof
and of any federal court located in the District of Columbia or
the Eastern District of the Commonwealth of Virginia in connection
with any actions or proceedings in which a Lender is or could be a
party brought by any of the parties or against any of them arising
out of or relating to this Agreement, the other Settlement
Documents or the Surviving Documents. IN ANY SUCH ACTION OR
PROCEEDING, EACH OF THE PARTIES HEREBY ABSOLUTELY AND IRREVOCABLY
WAIVES (a) personal service of any summons, complaint, declaration
or other process and hereby and absolutely agrees that the service
thereof may be made by certified or registered first-class mail
directed to such party at the address specified in Section 8.05
hereof, and (b) SUCH PARTY'S RIGHT TO A JURY TRIAL (AND NONE OF
THE PARTIES HERETO WILL SEEK A JURY TRIAL) IN ANY LAWSUIT,
COUNTERCLAIM OR ANY OTHER PROCEEDING BASED ON OR ARISING OUT OF
THIS AGREEMENT, ANY OTHER SETTLEMENT DOCUMENT, ANY SURVIVING
DOCUMENT OR ANY RELATED INSTRUMENT OR AGREEMENT AND WILL NOT IN
ANY WAY SEEK OR SUFFER THE CONSOLIDATION OF ANY SUCH PROCEEDING
WITH AN ACTION IN WHICH A JURY TRIAL HAS NOT BEEN WAIVED. Each of
the parties hereby agrees that it will appear or answer any such
summons, complaint, declaration or other process so served upon it
within the period provided by law. Should any party, having been
so served, fail to appear or answer within the said period, such
party shall be deemed to be in default and judgment may be
rendered against such party for such amount as may have been
demanded in the summons, complaint, declaration or other process
so served. Nothing contained herein shall be viewed as limiting
the right of a Lender to ▇▇▇ any of the Borrowers in the courts of
any country, state or other jurisdiction of the United States of
America or place where any of the parties or any of their property
or assets may be found or in any other appropriate jurisdiction or
the right of the Lender to accomplish service of process in any
other manner permitted by law.
Section 8.09 Acknowledgments of Certain Matters. (a) The
relationship between the Lenders and the Borrowers is limited to
that of creditor/secured party, on the one hand, and borrower or
guarantor/debtor, on the other hand and nothing contained in this
Agreement shall be construed as permitting or obligating either
Lender to act as a financial or business advisor or consultant to
any of the Borrowers, as permitting or obligating either Lender to
control any of the Borrowers or to conduct any of the Borrowers'
operations, as creating any fiduciary obligation on the part of
either Lender to any of the Borrowers, or as creating any joint
venture, agency or other relationship between the parties other
than as explicitly and specifically stated in this Agreement, the
other Settlement Documents and the Surviving Documents. Each of
the Borrowers acknowledge that such Borrower has had the
opportunity to review and analyze this Agreement and each of the
other Settlement Documents and Surviving Documents for a
sufficient period of time before the execution and delivery of
this Agreement and each of the other Settlement Documents to which
such Borrower is a party and has had the opportunity to obtain the
advice of experienced counsel of its own choosing in connection
with the negotiation and execution of this Agreement and the other
Settlement Documents to which such Borrower is a party and to
obtain the advice of such counsel with respect to all matters
contained herein and therein, including without limitation, the
provisions of Article VI relating to the release of the Lenders
from certain liability and Section 7.07 relating to the waiver of
trial by jury. Each of the Borrowers further acknowledges that
such Borrower is experienced with respect to financial and credit
matters and has made its own independent decision to execute and
deliver this Agreement and the other Settlement Documents to which
such Borrower is a party and to effect the transactions
contemplated hereby and thereby.
(b) Each of the parties hereto acknowledges and agrees
that as of the Closing Date, the FDIC shall no longer be a
"Lender" under the Surviving Documents and all references to
"Lender" or "Lenders" contained therein shall be deemed to be a
reference solely to NationsBank.
Section 8.10 Survival of Surviving Documents; Certain
Confirmations. (a) All the terms and conditions of the Surviving
Documents are hereby ratified and confirmed and shall remain in
full force and effect as modified by the Settlement Documents.
(b) WRMI hereby acknowledges, confirms and agrees that on
and as of November 27, 1996, WRMI became and remains a "Borrower"
under the Credit Agreement and each of the other Surviving
Documents for all purposes thereof, and as such is and remains
jointly and severally liable with each of the other Borrowers with
respect to the Continuing BG Obligations and became jointly and
severally liable with WII and each of the NB Guarantors with
respect to the Continuing NB Obligations. Without in any way
implying any limitation on any of the provisions of this
Agreement, any of the other Settlement Documents or any of the
Surviving Documents, to secure the due and prompt payment and
performance by WRMI of the Continuing Obligations, WRMI hereby
assigns, pledges and grants to the Agent for the benefit of
NationsBank, and agrees that the Agent and NationsBank shall have
a first priority, perfected and continuing security interest in,
and lien on, (i) all of the Collateral to the extent of WRMI's
interest, whether now owned or existing or hereafter acquired or
arising, including, without limitation, any and all chattel paper,
contract rights, documents, instruments, fixtures, accounts and
business records of WRMI, (ii) all returned, rejected or
repossessed goods, the sale or lease of which shall have given or
shall give rise to any Collateral, (iii) all insurance policies
relating to any of the foregoing, (iv) all books and records in
whatever media (paper, electronic or otherwise) recorded or
stored, with respect to the foregoing and all equipment and
general intangibles necessary or beneficial to retain, access or
process the information contained in those books and records and
(v) all cash and non-cash proceeds and products of the foregoing.
WRMI agrees that the Agent, for the benefit of NationsBank shall
have in respect thereof all of the rights and remedies of a
secured party under the Uniform Commercial Code as well as those
provided under the Settlement Documents and the Surviving
Documents and under applicable laws.
(c) Each of the Borrowers (other than WRMI which is dealt
with in Section 8.10(b) hereof) hereby ratifies and confirms the
Agent's security interest in the Collateral (other than the
Released Collateral) held by such Borrower, including, without
limitation, the Specified Collateral held by such Borrower and,
without in any way limiting the foregoing, to secure the due and
prompt payment and performance by each of such Borrowers of the
Continuing BG Obligations. Without in any way implying any
limitation on any of the provisions of this Agreement, any of the
other Settlement Documents or any of the Surviving Documents, to
secure the due and prompt payment and performance by each of the
Borrowers (other than WRMI which is dealt with in Section 8.10(b)
hereof) of the Continuing Obligations (including, without
limitation, the Continuing NB Obligations), each such Borrower
hereby assigns, pledges and grants to the Agent for the benefit of
NationsBank, and agrees that the Agent and NationsBank shall have
a first priority, perfected and continuing security interest in,
and lien on, (i) all of the Collateral (other than the Released
Collateral) to the extent of such Borrower's interest, whether now
owned or existing or hereafter acquired or arising, including,
without limitation, any and all chattel paper, contract rights,
documents, instruments, fixtures, accounts and business records of
such Borrower, (ii) all returned, rejected or repossessed goods,
the sale or lease of which shall have given or shall give rise to
any Collateral, (iii) all insurance policies relating to any of
the foregoing, (iv) all books and records in whatever media
(paper, electronic or otherwise) recorded or stored, with respect
to the foregoing and all equipment and general intangibles
necessary or beneficial to retain, access or process the
information contained in those books and records and (v) all cash
and non-cash proceeds and products of the foregoing; and such
Borrower agrees that the Agent, for the benefit of NationsBank
shall have in respect thereof all of the rights and remedies of a
secured party under the Uniform Commercial Code as well as those
provided under the Settlement Documents and the Surviving
Documents and under applicable laws.
(d) Each of the NB Guarantors hereby ratifies and
confirms such NB Guarantor's guaranty of the repayment of the
indebtedness evidenced by the Second Replacement Note in
accordance with the terms of the NB Obligations Guaranties to
which it is a party.
(e) Each of the Borrowers hereby acknowledges, agrees and
confirms that the Agent shall not be required to marshal any
present or future security for (including but not limited to the
Collateral subject to the security interest created or ratified
and confirmed hereby), or guarantees of, the Continuing
Obligations or any of them, or to resort to such security or
guarantees in any particular order; and all of its rights
hereunder and in respect of such securities and guaranties shall
be cumulative and in addition to all other rights, however
existing or arising. To the extent that it lawfully may, each of
the Borrowers hereby agrees that it will not invoke any law
relating to the marshaling of collateral which might cause delay
in or impede the enforcement of the Agent's rights under this
Agreement, any of the other Settlement Documents or any of the
Surviving Documents or under any other instrument evidencing any
of the Continuing Obligations or under which any of the Continuing
Obligations is outstanding or by which any of the Continuing
Obligations is secured or guaranteed, and to the extent that it
lawfully may do so each of the Borrowers hereby irrevocably waives
the benefits of all such laws. Except as otherwise provided by
applicable law, the Agent shall have no duty as to the collection
or protection of the Collateral or any income thereon, nor as to
the preservation of rights against prior parties, nor as to the
preservation of any rights pertaining thereto beyond the sole
custody thereof.
Section 8.11 Severability. In the event that one or more of
the provisions (or any part of any provision) contained in any
Settlement Document or Surviving Document shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provision (or a remaining part of the affected provision) of
such Settlement Document or Surviving Document, but such
Settlement Document or Surviving Document shall be construed to
effect the purposes of such Settlement Document or Surviving
Document as if such invalid, illegal or unenforceable provision
had never been contained therein and to that extent, the
provisions of the Settlement Documents and the Surviving Documents
are severable.
Section 8.12 Further Cooperation; Power of Attorney.
(a) Each of the Borrowers agrees to (i) execute and
deliver to the Lenders such further agreements, instruments,
documents and other writings as either Lender may reasonably
request from time to time to effectuate the purposes of this
Agreement, the other Settlement Documents and the Surviving
Documents and to consummate the transactions contemplated hereby
and thereby, and (ii) cooperate fully with NationsBank in ensuring
that NationsBank has and maintains all rights and benefits of the
Collateral (other than the Released Collateral).
(b) Each of the Borrowers hereby irrevocably designates,
makes, constitutes and appoints each of the Lenders and any
officer or agent thereof, with full power of substitution, as such
Borrower's true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of such Borrower and in
the name of such Borrower or in such Lender's own name for the
purpose of carrying out the terms of this Agreement, the other
Settlement Documents and the Surviving Documents to which such
Borrower is a party, after the occurrence and during the
continuance of a Default, upon the failure or refusal of such
Borrower to perform an act or take any action required under this
Agreement or under any other Settlement Document or any Surviving
Document to which such Borrower is a party, to take any and all
appropriate action and to execute any and all documents that may
be necessary or desirable, in such Lender's determination, to
accomplish the purposes of this Agreement or such other Settlement
Document or Surviving Document.
Section 8.13 Time of the Essence. Time is of the essence of
this Agreement, the other Settlement Documents and the Surviving
Documents, with respect both to the closing of the transactions
contemplated hereby and to the performance of the obligations of
the parties hereto and thereto.
Section 8.14 Integration of Exhibits and Schedules. All
Exhibits and Schedules referred to herein are hereby incorporated
into and made a part of this Agreement as if set forth in full
herein.
Section 8.15 Construction of Agreement. Each party hereto
acknowledges that such party has participated in the negotiation
of this Agreement and the other Settlement Documents, and no
provision of this Agreement or the other Settlement Documents
shall be construed against or interpreted to the disadvantage of
any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have
structured, dictated or drafted such provision.
Section 8.16 Headings. The headings and captions to the
various paragraphs and sections of each of the Settlement
Documents and the Surviving Documents are for convenience only and
shall not be deemed to be a part of such Settlement Document or
Surviving Document.
Section 8.17 Binding Effect; Assignment. This Agreement,
the other Settlement Documents and the Surviving Documents shall
be binding upon and inure to the benefit of the parties hereto and
thereto and their respective successors and assigns; provided,
however, that none of the Borrowers may assign or delegate any of
their rights or obligations hereunder or under the other
Settlement Documents or the Surviving Documents without the
express prior written consent of the Lenders benefited thereby.
Section 8.18 Counterparts. This Agreement may be executed
in any number of counterparts, but all of such counterparts shall
together constitute but one agreement. In making proof of this
Agreement, it shall not be necessary to account for or produce
more than one counterpart signed by each of the parties hereto.
Section 8.19 Expenses. In addition to any payment
obligations that the Borrowers may have pursuant to the Surviving
Documents, the Borrowers shall pay to the Lenders promptly upon
demand therefor any and all reasonable out-of-pocket costs or
expenses (including reasonable legal fees and disbursements)
incurred or sustained by the Lenders in connection with the
preservation or enforcement of any rights of the Lenders under
this Agreement, any of the other Settlement Documents, any of the
Surviving Documents or in respect of any of the other obligations
of the Borrowers to the Lenders. The Borrowers' liability under
this Section 8.19 shall be joint and several.
Section 8.20 Indemnification. The Borrowers agree to
indemnify and hold harmless the Lenders from and against any and
all claims, actions and suits whether groundless or otherwise, and
from and against any and all liabilities, losses, damages and
expenses of every nature and character arising out of this
Agreement, any of the other Settlement Documents, any of the
Surviving Documents or the transactions contemplated hereby and
thereby, including, without limitation, (a) any of the Borrowers'
entering into or performing this Agreement, any of the other
Settlement Documents or any of the Surviving Documents or (b) with
respect to the Borrowers and their properties and assets, the
violation of any Environmental Law, the presence, disposal,
escape, seepage, leakage, spillage, discharge, emission, release
or threatened release of any Hazardous Substances or any action,
suit, proceeding or investigation brought or threatened with
respect to any Hazardous Substances (including, but not limited
to, claims with respect to wrongful death, personal injury or
damage to property), in each case including, without limitation,
the reasonable fees and disbursements of counsel and allocated
costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding. In litigation, or
the preparation therefor, the Lenders shall be entitled to select
their own counsel and, in addition to the foregoing indemnity, the
Borrowers agree to pay promptly the reasonable fees and expenses
of such counsel. If, and to the extent that the obligations of
the Borrowers under this Section 8.20 are unenforceable for any
reason, the Borrowers hereby agree to make the maximum
contribution to the payment in satisfaction of such obligations
which is permissible under applicable law. The covenants
contained in this Section 8.20 shall survive payment or
satisfaction in full of all other obligations of the Borrowers
under the Settlement Documents and the Surviving Documents. The
Borrowers' liability under this Section 8.20 shall be joint and
several.
Section 8.21 Obligations of JFBCC and BCC Unaffected Pending
Bankruptcy Court Approval. Each of the parties hereto
acknowledges and agrees that JFBCC's and BCC's obligations
hereunder and under the other Settlement Documents to which it is
a party are contingent upon its receipt of bankruptcy court
approval of its execution, delivery and performance of its
obligations hereunder and thereunder in form and substance
satisfactory to NationsBank (the "Bankruptcy Court Approval") and
that each of JFBCC and BCC hereby covenants and agrees to promptly
seek to obtain the Bankruptcy Court Approval. Notwithstanding the
foregoing, each of the parties hereto acknowledges and agrees that
unless and until the Bankruptcy Court Approval has been obtained,
the obligations of each of JFBCC and BCC in respect of the
Continuing BG Obligations shall in no way be affected by the
execution, delivery and performance by the other parties of their
respective obligations under the Settlements Documents and each of
the other Borrowers further acknowledges and agrees that the fact
that the Bankruptcy Court Approval has not been obtained shall in
no way affect such Borrower's obligations, duties and liabilities
under this Agreement, the other Settlement Documents and the
Surviving Documents. Each of the parties hereto further
acknowledges and agrees that any amounts that NationsBank may
recover from each of JFBCC's and BCC's bankruptcy estate in
connection with its liability in respect of the Continuing BG
Obligations, net of all reasonable costs and expenses of
NationsBank in recovering same, shall be applied to reduce the
Continuing Obligations in such order as NationsBank in its sole
and absolute discretion shall determine.
ARTICLE VIII
DEFINITIONS AND RULES OF INTERPRETATION
Section 9.01 Definitions. The following terms shall have
the meanings set forth in this Section 9.01 or elsewhere in the
provisions of this Agreement referred to below:
Additional NB Lease Assignment. See Recitals.
Agent. See Preamble.
Agent Affiliates. See Section 7.02.
Agreement. See Preamble.
APCI. See Preamble
Assumption Agreements. See Section 3.01.
Baltimore Deed of Trust. See Recitals.
Baltimore Property. See Recitals.
Bank Group Letter of Credit Facility. See Recitals.
Bank Group Loan Documents. See Recitals.
Bank Group Note and Bank Group Notes. See Recitals.
Bank Group Obligations. See Recitals.
Bankruptcy Court Approval. See Section 8.21.
BCC. See Preamble.
BEC. See Preamble.
Bedford County Deed of Trust. See Recitals.
Bedford County Property. See Recitals.
Bedford Recording Office. See Recitals.
Borrower and Borrowers. See Preamble.
Carve-Out Note. See Section 2.04.
CEI. See Preamble.
CERCLA. See Section 4.11.
CII. See Preamble.
CIT. See Section 3.01.
Closing Date. See Article I.
Closing Documents. See Section 3.01.
Collateral. See Recitals.
Consolidated or consolidated. With reference to any term
used herein, shall mean that term as applied to the accounts of
WII and its subsidiaries, consolidated in accordance with
generally accepted accounting principles.
Continuing BG Obligations. See Article II.
Continuing Obligations. See Article II.
Continuing NB Obligations. See Article II.
Credit Agreement. See Recitals.
CSI. See Preamble.
CTCI. See Preamble.
CUI. See Preamble.
Dallas Parcel 2 Deed of Trust. See Recitals.
Deeds of Trust. See Section 6.01.
Default. See Section 6.01.
DCC. See Preamble.
DCC Deed of Trust. See Recitals.
DCC Loan. See Recitals.
DCC Loan Documents. See Recitals.
DCC Note. See Recitals.
DCC Security Agreement. See Recitals.
Debenture Shares. See Section 4.21.
Debentures. See Section 1.01.
Default. See Section 6.01.
Deeds of Trust. See Section 3.01.
DVEI. See Preamble.
Environmental Laws. See Section 4.11.
EPA. See Section 4.11.
Fairfax Recording Office. See Recitals.
Falls Church Deed of Trust. See Recitals.
Falls Church Property. See Recitals.
FDIC. See Preamble.
FDIC Debenture. See Section 1.02.
FDIC Debenture Guaranty. See Section 1.02.
First Replacement Note. See Section 1.01.
GC. See Preamble.
Generally accepted accounting principles. Means principles
that are (i) consistent with the principles promulgated or adopted
by the Financial Accounting Standards Board and its predecessors,
as in effect from time to time, and (ii) consistently applied with
past financial statements of the Person adopting the same
principles, provided that in each case referred to in this
definition of "generally accepted accounting principles" a
certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an
unqualified opinion (other than a qualification regarding changes
in generally accepted accounting principles) as to financial
statements in which such principles have been properly applied.
Guarantors. See Preamble.
Hazardous Substances. See Section 4.11.
HIWI. See Preamble.
HSEI. See Preamble.
IAFI. See Preamble.
IHHC. See Preamble.
JFBCC. See Preamble.
Lender. See Preamble.
Lender Affiliates. See Section 7.01.
Lenders. See Preamble.
Letter of Credit. See Recitals.
Letter of Credit Notes. See Recitals.
Letter of Credit Obligations. See Recitals.
Letters of Credit. See Recitals.
Manassas Deed of Trust. See Recitals.
Manassas Property. See Recitals.
Material Adverse Effect. See Section 4.06.
NationsBank. See Preamble.
NationsBank/ASB. See Preamble.
NationsBank/ASB Letter of Credit Note. See Recitals.
Nations Bank/ASB Revolving Credit Note. See Recitals.
NationsBank/ASB Term Note. See Recitals.
NationsBank/Virginia. See Preamble.
NationsBank/Virginia Letter of Credit Note. See Recitals.
Nations Bank/Virginia Revolving Credit Note. See Recitals.
NationsBank/Virginia Term Note. See Recitals.
NB Debenture. See Section 1.01.
NB Debenture Guaranty. See Section 1.01.
NB Deed of Trust. See Recitals.
NB Guarantors. See Recitals.
NB Lease Assignment. See Recitals.
NB Loan Documents. See Recitals.
NB Obligations. See Recitals.
NB Obligations Guaranties. See Recitals.
NB Real Estate Note. See Recitals.
NB Restructuring Agreement. See Recitals.
NBW. See Preamble.
Operating Borrowers. Collectively, WII, WEI, WEC, WSECI,
IAFI, PMPI, GC, WESI, WEVI, WIIT, WBC and WRMI.
Parcel 1 Bedford Property. See Recitals.
Parcel 2 Bedford Property. See Recitals.
Person. Any individual, corporation, partnership, trust,
unincorporated association, business, or other legal entity, and
any government or any governmental agency or political subdivision
thereof.
PMPI. See Preamble.
Prince ▇▇▇▇▇▇▇ Recording Office. See Recitals.
Properties. See Recitals.
RCRA. See Section 4.11.
Real Property. See Section 3.01.
Registration Rights Agreement. See Section 1.01.
Released Collateral. See Section 1.01.
Replacement Notes. See Section 1.01.
Revolving Credit Loan. See Recitals.
Revolving Credit Loans. See Recitals.
Revolving Credit Notes. See Recitals.
▇▇▇▇. See Section 4.11.
Second Dallas Property. See Recitals.
Second Replacement Note. See Section 1.01.
Securities Act. See Section 4.21.
Settlement. See Article I, Section 1.03
Settlement Documents. See Section 1.03.
Specified Collateral. See Recitals.
Surviving Documents. Collectively, the Credit Agreement, the
Falls Church Deed of Trust, the Manassas Deed of Trust, the
Baltimore Deed of Trust, the Dallas Parcel 2 Deed of Trust, the
DCC Loan Documents, the NB Deed of Trust, the NB Lease Assignment,
the Additional NB Lease Assignment, the NB Obligations Guaranties
and any related UCC filings, as the foregoing may be amended or
modified by the Settlement Documents or otherwise from time to
time.
Term Notes. See Recitals.
Title Company. See Section 3.01.
Title Policies. See Section 3.01.
TWB. See Preamble.
TWB Revolving Credit Note. See Recitals.
TWB Term Note. See Recitals.
UIWC. See Preamble.
WBC. See Preamble.
Wetlands. See Section 7.21.
WEC. See Preamble.
WEI. See Preamble.
WESI. See Preamble.
WEVI. See Preamble.
WII. See Preamble.
WII Common Stock. See Section 1.01.
WIIT. See Preamble.
WMAHI. See Preamble.
WMECI. See Preamble.
WMMG. See Recitals.
WRMI. See Preamble.
WRMI UCC's. See Section 3.01.
WSECI. See Preamble
Section 9.02 Rules of Interpretation. (a) A reference to
any document or agreement shall include such document or agreement
as amended, modified or supplemented from time to time in
accordance with its terms and the terms of this Agreement.
(b) The singular includes the plural and the plural
includes the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have
the meanings assigned to them by generally accepted accounting
principles applied on a consistent basis by the accounting entity
to which they refer.
(f) The words "include", "includes" and "including" are
not limiting.
(g) All terms not specifically defined herein or by
generally accepted accounting principles, which terms are defined
in the Uniform Commercial Code as in effect in the Commonwealth of
Virginia, have the meanings assigned to them therein.
(h) Reference to a particular "Section" refers to that
section of this Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words
of like import shall refer to this Agreement as a whole and not to
any particular section or subdivision of this Agreement.
IN WITNESS WHEREOF, this Agreement is executed and sealed as
of the date first written above.
WITNESS/ATTEST: ▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Chairman
WITNESS/ATTEST: ▇▇▇▇▇▇▇▇ ENTERPRISES, INC.
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Chairman
WITNESS/ATTEST: ▇▇▇▇▇▇▇▇ EQUIPMENT CORPORATION
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Chairman
WITNESS/ATTEST: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & COMPANY,
INCORPORATED
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Chairman
WITNESS:
______________________ ________________________________(SEAL)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., in his capacity
as trustee for the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
Company, Incorporated
WITNESS:
______________________ ________________________________(SEAL)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, in his capacity
as trustee for the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
Company, Incorporated
WITNESS/ATTEST: ▇▇▇▇▇▇▇▇ STEEL ERECTION
COMPANY, INC.
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Chairman
WITNESS/ATTEST: UNION IRON WORKS COMPANY
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Chairman
WITNESS/ATTEST: IAF TRANSFER CORPORATION
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Chairman
WITNESS/ATTEST: CRANES UNLIMITED, INC.
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Chairman
WITNESS/ATTEST: PIEDMONT METAL PRODUCTS, INC.
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Chairman
WITNESS/ATTEST: ▇▇▇▇▇▇▇▇ MID-ATLANTIC
HOLDINGS, INC.
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Chairman
WITNESS/ATTEST: CAPITOL TOWER CRANES, INC.
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Chairman
WITNESS/ATTEST: GREENWAY CORPORATION
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Chairman
WITNESS/ATTEST: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ CONSTRUCTION
COMPANY, debtor and debtor in
possession
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Chairman
WITNESS/ATTEST: HARBOR STEEL ERECTORS,
INCORPORATED
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Chairman
WITNESS/ATTEST: ▇▇▇▇▇▇▇▇ ENVIRONMENTAL
SERVICES, INC.
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Chairman
WITNESS/ATTEST: ▇▇▇▇▇▇▇▇ ENTERPRISES OF
VIRGINIA, INC.
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Chairman
WITNESS/ATTEST: ▇▇▇▇▇▇▇▇ INDUSTRIES INSURANCE
TRUST
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Trustee & Authorized Agent
WITNESS/ATTEST: ▇▇▇▇▇▇▇▇ BRIDGE COMPANY
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Chairman
WITNESS/ATTEST: INTER-HARBOR HOLDING COMPANY,
INC.
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Chairman
WITNESS/ATTEST: HARBOR IRON WORKS, INC.
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Chairman
WITNESS/ATTEST: CREATIVE IRON, INC.
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Authorized Agent
WITNESS/ATTEST: ▇▇▇▇▇▇▇ ENGINEERING COMPANY
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: President
WITNESS/ATTEST: ▇▇▇▇▇▇▇ CONSTRUCTION COMPANY,
as debtor and debtor in possession
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: President
WITNESS/ATTEST: WII REALTY MANAGEMENT, INC.
______________________ By:________________________(SEAL)
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III
Title: Chairman
WITNESS: NATIONSBANK, N.A.
______________________ By:________________________(SEAL)
Name: ▇▇ ▇▇▇▇▇
Title: Vice President
WITNESS: NATIONSBANK, N.A.
as Agent
______________________ By:________________________(SEAL)
Name: ▇▇ ▇▇▇▇▇
Title: Vice President
WITNESS: FEDERAL DEPOSIT INSURANCE
CORPORATION, in its capacity as
Receiver for the National Bank of
Washington
______________________ By:________________________(SEAL)
Name:
Title:
WITNESS: FEDERAL DEPOSIT INSURANCE
CORPORATION, in its capacity
as Receiver for The Washington
Bank of Virginia
______________________ By:________________________(SEAL)
Name:
Title:
SCHEDULES AND EXHIBITS (OMITTED)
SCHEDULES
Schedule 4.04 Bankruptcy Events
Schedule 4.05 Insolvency Litigation
Schedule 4.06 Litigation
Schedule 4.07 Title Exceptions
Schedule 4.09 Outstanding Items
Schedule 4.10 Mechanics' Liens
Schedule 4.13 Taxes
Schedule 4.16 Defaults
Schedule 4.20 WII's Articles of Incorporation
EXHIBITS
Exhibit A-1 Form of First Replacement Note
Exhibit A-2 Form of Second Replacement Note
Exhibit B Form of Debenture
Exhibit C Form of Guaranty
Exhibit D Form of Registration Rights Agreement
Exhibit E-1 Form of Second Amendment to Commercial Deed
of Trust and Assumption Agreement (Falls
Church)
Exhibit E-2 Form of Second Amendment to Commercial Deed
of Trust and Assumption Agreement (Manassas)
Exhibit E-3 Form of Second Amendment to Commercial Deed
of Trust and Assumption Agreement (Bedford)
Exhibit E-4 Form of Third Modification to Deed of Trust and
Assumption Agreement (NB Deed of Trust)
Exhibit F Form of Mutual Release