EXHIBIT 10(q)
EAB SECURED COMMERCIAL NOTE
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$1,000,000 February 17, 1995
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FOR VALUE RECEIVED, the undersigned promises to pay to the order of EUROPEAN
AMERICAN BANK ("EAB"), at any of its banking offices, the sum of
One Million
___________________ Dollars, to be paid as follows:
[ ] On_________________, the principal sum of $____________ with interest to be
(Maturity Date; No. of Days After Date)
payable___________________at maturity at the rate indicated below, unless
(Monthly, and, or, Quarterly and)
discounted.
60 monthly $16,666.47
[X] In equal, consecutive ______________ principal installments of ___________
1st March 1, 1995
on the ______ day of the month commencing _______________ and the balance
$16,666.47 February 1, 2000 monthly and
of $___________ on ________________ with interest to be payable ___________
(Monthly, and, or, Quarterly and)
at maturity at the rate indicated below.
[ ] In____________equal, consecutive monthly installments of principal plus
(No. of)
interest in the amount of $________ each, on the ____day of each month
commencing________, 19__ and the balance of $_______on_______, 19__ with
interest to be calculated at the rate indicated below.
INTEREST SHALL BE:
6.85
[X] equal to the rate of______% per annum.*
[ ] discounted at the rate of______% per annum.
[ ] equal to the rate of______% above EAB's Prime Rate (the rate of
interest stated by EAB to be its Prime Rate) as in effect from time to
time.
[ ] equal to the following rate: _____________________________________________
__________________________________________________________________________
* For the period commencing on the date hereof through February 16, 1997 and
shall be adjusted to a fixed rate at 8.85% per annum commencing on February
17, 1997 and at all times thereafter.
Any amount of principal hereof which is not paid when due (whether at stated
maturity, by acceleration or otherwise) shall bear interest until paid in
full at a rate 3% per annum in excess of the discount rate or the interest
rate in effect at maturity. Interest shall be calculated on a basis of a 360
day year for the actual number of days elapsed.
The undersigned hereby grants EAB a lien on and security interest in the
following property (including any and all renewals, replacements and/or
substitutions thereof and any and all procceds and yields thereof) as
collateral security for the payment of any and all obligations of the
undersigned to EAB, under this note, whether now existing or hereafter
incurred (all of such obligations, including this Note, being hereinafter
called the "Obligations"):
Specific equipment, including accessions thereto, and replacements or
substitutions thereof and spare parts now owned or hereafter acquired, more
fully described on attached Schedule "A". See rider attached hereto and made
a part thereof.
The undersigned also hereby grants EAB a security interest in, the right of
setoff against and pledge and assignment of any and all monies, securities
(to the extent permitted by Regulation U of the Federal Reserve Board),
general intangibles and other property of the undersigned and the proceeds
thereof, now or hereafter held or received by EAB from or for the undersigned
in safekeeping, in transit or otherwise, and also upon any and all deposits
(general or special) (all of the
foregoing being hereinafter called the "Collateral"). The undersigned hereby
authorized EAB to execute and file, at any time(s), on behalf of the
undersigned, one or more financing statements with respect to any part or all
of the Collateral, although the same may have been executed only by EAB as
secured party.
Upon the occurrence with respect to the undersigned of any of the following
(each, an "Event of Default"): filing by or against the undersigned of a
petition commencing any proceeding under any bankruptcy, reorganization or
rearrangement, readjustment of debt, dissolution or liquidation law or
statute of any jurisdiction, now or hereafter in effect; making an assignment
for the benefit of creditors; petitioning or applying to any tribunal for the
appointment of a custodian, receiver or trustee for the undersigned or for a
substantial part of its assets; entry of judgment or order of attachment,
injunction or governmental tax lien or levy issued against the undersigned or
against property of the undersigned; in an amount in excess of $300,000.00
consent by the undersigned to assume, suffer or allow to exist, without the
prior written consent of EAB, any lien, mortgage, assignment or other
encumbrance on any of its assets or personal property, listed on Schedule "A"
herein; default in the punctual payment or performance of this or any other
obligation to EAB or to any other lender at any time; the existence or
occurrence at any time of one or more conditions or events, which, in the
sole opinion of EAB, has resulted or may result in a material adverse change
in the business, properties or financial condition of the undersigned, which
shall increase the credit risk or impair the collateral of EAB, then this
Note shall at the sole option of EAB become due and payable without notice or
demand.
Upon the failure to pay any of the Obligations when the same shall become
due, or upon the happening of any of the Events of Default hereinabove set
forth, and at any time thereafter, EAB, without notice (except where any
statute specifically requires reasonable notification of any public or
private sale or other intended disposition, in which event the undersigned
hereby agrees that five days notice by ordinary mail, postage prepaid, to any
address of the undersigned setting forth the place and time of any public
sale or of the place and time after which any private sale or other
disposition may be made shall be deemed reasonable notice of such sale or
other disposition), may (in addition to all other rights and remedies
afforded EAB under the Uniform Commercial Code or under any security
agreement at any time executed and delivered by the undersigned to EAB)
forthwith realize upon the Collateral, with the right of EAB upon any such
sale or sales, public or private, to purchase the whole or any part of the
Collateral, free of any right of redemption, which right or equity is hereby
expressly waived and released by the undersigned. EAB may apply the net
proceeds of any such sale, after deducting all costs and expenses of every
kind incurred in connection therewith, to the payment in whole or in part, in
such order as EAB may elect, to any one or more or all of the Obligations,
whether then due or not due, making proper rebate for interest or discount
not earned, and to account for the surplus, if any, to the undersigned who
shall remain liable to EAB for the payment of any deficiency with interest.
Any securities held by EAB hereunder may, whether or not an Event of Default
has occurred, be registered and held in the name of EAB or its nominee,
without disclosing that EAB is a pledgee thereof, and EAB or said nominee
shall be entitled to receive and retain all distributions therefrom, and to
exercise all rights with respect thereto as if it was the absolute owner
thereof, but shall not be obligated to do so. Should any securities,
distributions or proceeds be received by the undersigned as the registered
owner of any Collateral, then same shall be deemed part of the Collateral and
shall be held in trust and delivered to EAB in kind, duly endorsed in blank
where appropriate.
EAB shall not, by any act, delay, omission or otherwise, be deemed to have
waived any of its rights and/or remedies hereunder. No change, amendment,
modification, termination, waiver, or discharge, in whole or in part, of any
provision of this Note shall be effective unless in writing and signed by the
party against whom such change, amendment, modification, termination, waiver,
or discharge is sought to be enforced. The undersigned, in any litigation
with respect to, in connection with or arising out of this Note, waives the
right to allege that part performance by EAB of an oral agreement satisfies
the requirements of a writing contained in the preceding sentence.
In the event that EAB for any reason whatsoever shall deem it necessary to
refer this Note to an attorney for the enforcement thereof, there shall be
due from the undersigned, in addition to the unpaid principal, interest and
late charges hereunder, reasonable attorney's fees (whether in-house or
outside counsel) together with all costs and expenses of any such action.
This Note shall be governed by and construed in accordance with the laws of
the State of New York. The undersigned in any litigation in which EAB and any
of them shall be adverse parties, waives trial by jury and the right to
interpose any defense, setoff or counterclaim of any nature or description
including without limitation, waiver and estoppel. The undersigned consents
to the jurisdiction of any state or federal court located in the State of New
York in any action brought to enforce any rights of EAB under this Note and
consents to the placing of venue in the County of Nassau or any other
county permitted by law and further expressly waives any claim that any such
action or proceeding has been brought in an inconvenient forum. The
undersigned agrees that service of process may be effected by the mailing of
a summons by first class mail, postage prepaid, and certified mail, return
receipt requested to the address of the undersigned provided to EAB.
The undersigned, if more than one, shall be jointly and severally liable
hereunder. This Note shall bind the respective successors, assigns, heirs and
representatives of the undersigned. This Note is not assignable by the
undersigned without EAB's prior written consent.
Name of Borrower AMERICAN TECHNICAL CERAMICS CORP.
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By: /s/ Xxxxxxxx X. Xxxxx X.X. 2/17/95
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Signature and Title
Xxxxxxxx X. Xxxxx Vice President
By: ------------------------------------------------
Signature and Title
Street Address ONE NORDEN LANE
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City and State HUNTINGTON STATION, NEW YORK 11746
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No. 00067
RIDER TO SECURED COMMERCIAL NOTE
DATED FEBRUARY 17, 1995 IN THE
AMOUNT OF $1,000,000
1. The undersigned covenants and agrees:
(a) To deliver to EAB:
(i) Annually, as soon as available, but in any event within 120 days after
the last day of each of its fiscal years, a copy of the completed Form 10-K
filed or to be filed with the Securities and Exchange Commission (the "SEC")
pursuant to the rules and regulations of the SEC, which shall include
consolidated balance sheets of the undersigned and its subsidiaries as at
such last day of the fiscal year, and consolidated statements of income and
retained earnings and cash flows, for such fiscal year, each prepared in
accordance with generally accepted accounting principles consistently
applied, in reasonable detail, such consolidated statements to be certified
without qualification by the accounting firm of KPMG Peat Marwick LLP (the
"Company") or by such other firm of independent certified public accountants
as may be reasonably satisfactory to EAB.
(ii) As soon as available, but in any event within 60 days after the end
of each of the first three fiscal quarterly periods of each fiscal year, the
completed Form 10-Q filed or to be filed with the SEC pursuant to the rules
and regulations of the SEC, which shall include the consolidated balance
sheets of the undersigned and its subsidiaries, as of the last day of such
quarter, and consolidated statements of income, for such quarterly period and
the portion of the fiscal year through such date, all in reasonable detail,
each such statement to be prepared by the undersigned in accordance with
generally accepted accounting principles consistently applied.
(b) To maintain:
(i) At all times a Maximum Leverage Ratio, the ratio of total
unsubordinated liabilities to tangible net worth of not greater than 0.80 to
1.0.
(ii) As at each fiscal year-end, a Debt Service Coverage Ratio, the ratio
of net profits plus depreciation and amortization to the current portion of
long-term debt, (the principal and interest due in respect of long-term debt
for the ensuing twelve-month period), of not less than 1.2 to 1.0.
2. Prepayment: Upon not less than three (3) days prior written notice to EAB,
the undersigned may prepay this Note in whole or in part of multiples of
$10,000 on the date set for the regular monthly payments of interest and
principal. All prepayments shall be accompanied by the interest accrued on
the amount prepaid through the date of prepayment. Any prepayment made prior
to ninety (90) days before the maturity of this Note shall be subject to an
additional payment as liquidated damages for such prepayment and not as a
penalty equal to the net present value of (A) (i) the difference between the
interest set forth herein and the current yield on U.S. Treasury Notes with
maturities approximately equal to the remaining time between the date of
prepayment and the maturity date (expressed as a percentage), multipled by
(ii) the total amount of principal prepaid, divided by (iii) 360 multiplied
by (B) the actual number of days remaining. In addition, the undersigned
shall reimburse EAB for any and all additional administrative or processing
costs incurred by EAB as a result of such prepayment.
AMERICAN TECHNICAL CERAMICS CORP.
By: /s/ Xxxxxxxx X. Xxxxx 2/17/95
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Xxxxxxxx X. Xxxxx
Vice President
SCHEDULE A
Attached to that certain Secured Commercial Note in the amount of
$1,000,000 dated February 17, 1995.
DESCRIPTION OF EQUIPMENT
Draiswerke, Inc.
Mill
Xxxx Xxxxxx
2 Oil Free Compressors
XX Xxx Group
SEM Analyzer
Ismeca
Custom Laser Marking System
Lumonics
Laser Beam
Palomar Systems and Machines
Rotary Tester
BTU International
Furnace
Palomar Systems and Machines
(2) Lasers
Hewlett Packard
3 Capacitance Meters
Veeco Instruments
Fluorescent Measuring System
Xxxxxx Xxxx Associates
Mask Aligner & Desiccator Boxes
X.X. Enterprises
Laser Resistor Trimming System
Xxxxx Co.
Box Furnace
AMERICAN TECHNICAL CERAMICS CORP.
By: /s/ Xxxxxxxx X. Xxxxx 2/17/95
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Xxxxxxxx X. Xxxxx
Vice President
Page 1 of 2
SCHEDULE A
Attached to that certain Secured Commercial Note in the amount of
$1,000,000 dated February 17, 1995.
DESCRIPTION OF EQUIPMENT
Vision Engineering
Microscope
Xxxxx Radio
RF Current Test System
Palomar Systems & Machines
Palomar 2001 ATM Table/Granite Block
MH International
Vacuum System
Microfluidics Corp.
Microfluidizer with Accessories
Electrosort Automation
Die Sorter
Inter-Continental Microwave
RF Microwave Measuring Fixtures and Assemblies
AMERICAN TECHNICAL CERAMICS CORP.
By: /s/ Xxxxxxxx X. Xxxxx 2/17/95
---------------------------------
Xxxxxxxx X. Xxxxx
Vice President
Page 2 of 2
EAB GENERAL SECURITY AGREEMENT
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Date February 17, 1995
The undersigned (herein, whether one or more in number, referred to as Debtor
and which, if two or more in number, shall be jointly and severally bound)
with an address as it appears with the signature below, hereby agree(s) in
favor of European American Bank, a New York Banking Corporation (herein
referred to as Secured Party), as follows:
1. In consideration of one or more loans, advances, or other financial
accommodations at any time before, at or after date made or extended by
Secured Party to Debtor, directly or indirectly, as principal, guarantor or
otherwise, at the sole discretion of Secured Party relating to the collateral
as herein after defined in each instance, Debtor hereby grants to Secured
Party a security interest in, a continuing lien upon and a right of set-off
against, and Debtor hereby assigns to Secured Party, the Collateral described
in Paragraph 2, to secure the payment, performance and observance of all
indebtedness, obligations, liabilities and agreements of any kind of Debtor
to Secured Party, now existing or hereafter arising, direct or indirect
(including participations or any interest of Secured Party in obligations of
Debtor to others), acquired outright, conditionally, or as collateral
security from another, absolute or contingent, joint or several, secured or
unsecured, due or not, contractual or tortious, liquidated or unliquidated,
arising by operation of law or otherwise, in each instance relating to
collateral and of all loan agreements, documents and instruments evidencing
any of the foregoing obligations that may have been issued, created, assumed
or guaranteed (all of the foregoing being herein referred to as the
"Obligations").
2. The Collateral is described as follows and/or on Schedule A, if any,
annexed hereto as part hereof and on any separate schedule at any time
furnished by Debtor to Secured Party (all of which are hereby deemed part of
this Security Agreement), which Collateral includes all attachments,
accessions and equipment now or hereafter affixed to the Collateral or used
in connection therewith, substitutions and replacements thereof, and (unless
the description of the Collateral expressly excludes after-acquired
Collateral) all items of the Collateral both now owned or existing and
hereafter acquired, created or arising, and any and all products and proceeds
thereof (including, without limitation, any claims of Debtor against third
parties, for loss or damage to or destruction of any or all of the
Collateral):
Specific equipment, including accessions thereto, and replacements or
substitutions thereof and spare parts now owned or hereafter acquired,
more fully described on attached Schedule "A".
together with any and all monies, securities, drafts, notes, items and other
property of the Debtor and the proceeds thereof, now or hereafter held or
received by or in transit to, Secured Party from or for the Debtor, whether
for safekeeping, custody, pledge, transmission, collection or otherwise, and
any and all deposits (general or special), balances, sums, proceeds, and
credits of the Debtor with, and any and all claims of the Debtor against,
Secured Party, at any time existing. In the event that the Collateral
includes inventory, Debtor also grants to Secured Party a security interest
in, and the Collateral shall include, all labels and other devices, names, or
marks affixed or to be affixed to inventory for purposes of selling or of
identifying the same or the seller or manufacturer thereof and all right,
title and interest of Debtor therein and thereto.
3. Debtor warrants, represents and covenants that: (a) the chief and other
places of business of Debtor, the books and records relating to the
Collateral and the Collateral are located at the addresses set forth below
and Debtor will not change any of the same without prior written notice to
and consent of Secured Party; (b) the Collateral is and will be used in
Debtor's business and not for personal, family, household or farming use; (c)
the Collateral is now, and at all times will be, owned by Debtor free and
clear of all liens, security interests, claims and encumbrances, except as
set forth on Schedule B, if any, annexed hereto as part hereof; (d) Debtor
will not assign, sell, mortgage, lease, transfer, pledge, grant a security
interest in or lien upon, encumber, or otherwise dispose of or abandon, nor
will Debtor suffer or permit any of the same to occur with respect to, any
part or all of the Collateral, without prior written consent of Secured
Party, except for the sale from time to time in the ordinary course of
business of Debtor of such items of Collateral as may constitute part of the
business inventory of Debtor, and the inclusion of "proceeds" of the
Collateral under the security interest granted herein, shall not be deemed a
consent by Secured Party to any sale or other disposition of any part or all
of the Collateral except as expressly permitted herein; (e) Debtor has made,
and will continue to make payment or deposit or otherwise provide for the
payment, when due, of all taxes, assessments or contributions required by law
which have been or may be levied or assessed against the Debtor, whether with
respect to any of the Collateral, to any wages or salaries paid by
Debtor, or otherwise, and will deliver to Secured Party, on demand,
certificates or other evidence satisfactory to Secured Party attesting
thereto; (f) Debtor will use the Collateral for lawful purposes only, with
the reasonable care and caution and in conformity with all applicable laws,
ordinances and regulations; (g) Debtor will keep the Collateral in good
order, repair, running and marketable condition, at Debtor's own cost and
expense; (h) Secured Party shall at all times have free access to and right
of inspection of the Collateral and any records pertaining thereto (and the
right to make extracts from and to receive from Debtor originals or true
copies of such records and any papers and instruments relating to any or all
of the Collateral upon request therefor) and Debtor hereby grants to Secured
Party a security interest in all such records, papers and instruments to
secure the payment, performance and observance of the Obligations; (i) the
Collateral is now and shall remain personal property, and Debtor will not
permit any of the Collateral to become a part of or affixed to real property
without prior written notice to Secured Party and without first making all
arrangements, and delivering, or causing to be delivered, to Secured Party
all instruments and documents, including, without limitation, waivers and
subordination agreements by any landlords or mortgages, requested by and
satisfactory to Secured Party to preserve and protect the primary security
interest granted herein against all persons; (j) Debtor, at its own expense,
will insure the Collateral in the name of and with loss or damage payable to
Secured Party, as its interest may appear, against loss or damage by fire and
other hazards, and extended coverage, theft, burglary, bodily injury and such
other risks, with such companies and in such amounts, as is reasonably
required by Secured Party at any time (all such policies providing 10 days
minimum written notice of cancellation to Secured Party) and Debtor shall
deliver to Secured Party the original or certified duplicate policies, or
certificates or other evidence satisfactory to Secured Party of compliance
with the foregoing insurance provisions and Debtor will promptly notify
Secured Party of any loss or damage to any of the Collateral or arising from
its use; (k) at its option, Secured Party may apply any insurance monies
received at any time to the cost of repairs to or replacements for the
Collateral and/or to payment of any of the Obligations, whether or not due,
in any order Secured Party may determine, any surplus (after payment of all
costs, reasonable attorney's fees and disbursements) to be remitted to Debtor
who shall remain liable for any deficiency; (l) Debtor will, at its expense,
perform all acts and execute all documents requested by Secured Party at any
time to evidence, perfect, maintain and enforce Secured Party's primary
security interest in the Collateral or otherwise in furtherance of the
provisions of this Security Agreement; (m) Debtor assumes all responsibility
and liability arising from the use of the Collateral; (n) upon request of
Secured Party, at any time and from time to time, Debtor shall, at its sole
cost and expense, execute and deliver to Secured Party one or more financing
statements pursuant to the Uniform Commercial Code ("UCC") and one or more
applications for certificate of title and any other papers, documents or
instruments requested by Secured Party in connection with this Security
Agreement, and Debtor hereby authorizes Secured Party to execute and file at
any time or times, one or more financing statements with respect to all or
any part of the Collateral, signed only by the Secured Party; (o) in its
discretion, Secured Party may, whether or not a Default (as hereinafter
defined) has occurred or any of the Obligations be due, in its name or
Debtor's or otherwise, notify any account debtor or obligor of any account,
contract, instrument, chattel paper or general intangible included in the
Collateral to make payment to Secured Party; (p) Secured Party may, in its
sole discretion and at any time, demand, sue for, collect or receive any
money or property at any time payable or receivable on account of or in
exchange for, or make any compromise or settlement deemed desirable by
Secured Party with respect to, any of the Collateral, and/or extend the time
of payment, arrange for payment in installments, or otherwise modify the
terms of, or release, any of the Collateral or the Obligations, all without
notice to or consent by Debtor and without otherwise discharging or affecting
the Obligations, the Collateral or the security interest granted herein; (q)
Secured Party may, in its discretion, for the account and expense of Debtor,
pay any amount or do any act required of Debtor hereunder or requested by
Secured Party to preserve, protect, maintain or enforce the Obligations, the
Collateral or the primary security interest granted herein, and which Debtor
fails to do or pay, and any such payment shall be deemed an advance by
Secured Party to Debtor and shall be payable on demand together with interest
at the highest rate then payable on any of the Obligations; (r) Debtor will
promptly pay Secured Party for any and all sums, costs, and expenses which
Secured Party may pay or incur pursuant to the provisions of this Security
Agreement or in defending, protecting or enforcing the security interest
granted herein or in enforcing payment of the Obligations or otherwise in
connection with the provisions hereof, including but not limited to all court
costs, collection charges, travel, and reasonable attorney's fees, all of
which, together with interest at a rate equal to the highest rate then
payable on any of the Obligations, shall be part of the Obligations and be
payable on demand; (s) whether or not a Default has occurred, Secured Party,
in its discretion, may transfer to or register in the name of Secured Party
or its nominee all or any of the Collateral consisting of securities, and
whether or not so transferred or registered, Secured Party shall be entitled
to receive and retain all income, dividends (including stock dividends and
rights to subscribe) and other distributions thereon as part of the
Collateral and to exchange any or all such Collateral upon the
reorganization, recapitalization, or readjustment of any entity issuing such
securities, and to exercise all rights with respect thereto as if it was the
absolute owner thereof, provided that until the occurrence
of a Default and whether or not the Collateral is transferred to or
registered in the name of Secured Party or its nominee, Debtor alone shall be
entitled to exercise the right to vote such Collateral, and if the Collateral
has been so transferred or registered, Secured Party shall take such action
as Debtor may reasonably request to enable Debtor to exercise the right to
vote such Collateral or any part thereof for any purpose which is not
inconsistent with the terms of this Security Agreement or the Obligations or
which would not have an adverse effect on the value of the Collateral or any
part thereof; (t) any of the proceeds of the Collateral received by Debtor
shall not be commingled with other property of Debtor, but shall be
segregated, held by the Debtor in trust as the exclusive property of Secured
Party, and Debtor will immediately deliver to Secured Party the identical
checks, monies, or other proceeds of Collateral received, duly endorsed in
blank where appropriate to effectuate the provisions hereof, the same to be
held by Secured Party as additional Collateral hereunder or, at Secured
Party's option to be applied to payment of any of the Obligations, whether or
not due and in any order; and (u) at any time Secured Party may assign,
transfer and deliver to any transferee of any of the Obligations, any or all
of the Collateral, whereupon Secured Party shall be fully discharged from all
responsibility and the transferee shall be vested with all powers and rights
of Secured Party hereunder with respect thereto, but Secured Party shall
retain all rights and powers with respect to any Collateral not assigned,
transferred or delivered.
4. The occurrence of any one or more of the following events shall constitute
an event of default ("Default") by Debtor under this Security Agreement: (a)
if at any time Secured Party shall, in its sole discretion, consider the
Obligations insecure; (b) if Debtor or any obligor, maker, endorser,
acceptor, surety or guarantor of, or any party to, any of the Obligations or
the Collateral (the same, including Debtor, being collectively referred to
herein as "Obligors") shall default in the punctual payment of any sum
payable with respect to, or in the observance or performance of any of the
terms and conditions of, any Obligations or of this Security Agreement or the
Collateral or any other agreement between any Obligor and Secured Party; (c)
if any warranty, representation or statement of fact made to Secured Party at
any time by or on behalf of Debtor is false or misleading in any material
respect when made; (d) in the event of loss, theft, substantial damage to or
destruction of any of the Collateral, or the making or filing of any lien,
levy, or execution on, or seizure, attachment or garnishment of, any of the
Collateral; (e) if any of the Obligors being a natural person or any general
partner of an Obligor which is a partnership, shall die or (being a
partnership or corporation) shall be dissolved, or if any of the Obligors (if
a corporation) shall fail to maintain its corporate existence in good
standing; (f) or if any of the Obligors shall become insolvent (however
defined or evidenced) or make an assignment for the benefit of creditors, or
make or send notice of an intended bulk transfer, or if there shall be
convened a meeting of the creditors or principal creditors of any of the
Obligors or if a committee of creditors is appointed for any of them; (g) or
if there shall be filed by or against any of the Obligors any petition for
any relief under the bankruptcy laws of the United States now or hereafter in
effect or under any insolvency, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction now or hereafter in effect
(whether at law or in equity); (h) if the usual business of any of the
Obligors shall be terminated or suspended; (i) if any proceeding, procedure
or remedy supplementary to or in enforcement of judgment shall be commenced
against, or with respect to any property of, any of the Obligors, or (j) if
any petition or application to any court or tribunal, at law or in equity, be
filed by or against any of the Obligors for the appointment of any receiver
or trustee for any of the Obligors or any material part of the property of
any of them.
5. Upon the occurrence of any Default and at any time thereafter, Secured
Party may, without notice to or demand upon Debtor, declare any or all
Obligations of Debtor immediately due and payable and Secured Party shall
have the following rights and remedies (to the extent permitted by applicable
law) in addition to all rights and remedies of a secured party under the UCC,
or of Secured Party under the Obligations, all such rights and remedies being
cumulative, not exclusive and enforceable alternatively, successively or
concurrently: (a) Secured Party may at any time and from time to time, with
or without judicial process or the aid and assistance of others, enter upon
any premises in which any of the Collateral may be located and, without
resistance or interference by Debtor, take possession of the Collateral;
and/or dispose of any part or all of the Collateral on any premises of
Debtor; and/or require Debtor to assemble and make available to Secured Party
at the expense of Debtor any part or all of the Collateral at any place and
time designated by Secured Party which is reasonably convenient to both
parties; and/or remove any part or all of the Collateral from any premises on
which any part may be located for the purpose of effecting sale or other
disposition thereof (and if any of the Collateral consists of motor vehicles,
Secured Party may use Debtor's license plates); and/or sell, resell, lease,
assign and deliver, grant options for or otherwise dispose of any or all of
the Collateral in its then condition or following any commercially reasonable
preparation or processing, at public or private sale or proceedings or
otherwise, by one or more contracts, in one or more parcels, at the same or
different times, with or without having the Collateral at the place of sale
or other disposition, for cash and/or credit, and upon any terms, at such
place(s) and time(s) and to such persons, firms or corporations as Secured
Party deems best, all without demand for performance or any notice or
advertisement whatsoever except that where an applicable
statute requires reasonable notice of sale or other disposition Debtor hereby
agrees that the sending of five days notice by ordinary mail, postage
prepaid, to any address of Debtor set forth in this Security Agreement of the
place and time of any public sale or of the time after which any private sale
or other intended disposition is to be made, shall be deemed reasonable
notice thereof. If any of the Collateral is sold by Secured Party upon credit
for future delivery, Secured Party shall not be liable for the failure of the
purchaser to pay for same and in such event Secured Party may resell such
Collateral. Secured Party may buy any part or all of the Collateral at any
public sale and if any part or all of the Collateral is of a type customarily
sold in a recognized market or is of the type which is the subject of widely
distributed standard price quotations Secured Party may buy at private sale
and may make payment therefor by any means. Secured Party may apply the cash
proceeds actually received from any sale or other disposition to the
reasonable expenses of retaking, holding, preparing for sale, selling,
leasing and the like, to reasonable attorney's fees (not exceeding 15% of the
outstanding Obligations) and to all travel and other expenses which may be
incurred by Secured Party in attempting to collect the Obligations or enforce
this Security Agreement or in the prosecution or defense of any action or
proceeding related to the subject matter of this Security Agreement; and then
to the Obligations in such order and as to principal or interest as Secured
Party may desire; and Debtor shall remain liable and will pay Secured Party
on demand any deficiency remaining, together with interest thereon at a rate
equal to the highest rate then payable on the Obligations and the balance of
any expenses unpaid, with any surplus to be paid to Debtor, subject to any
duty of Secured Party imposed by law to the holder of any subordinate
security interest in the Collateral known to Secured Party. Debtor recognizes
that the Secured Party may be unable to effect a public sale of all or a part
of the Collateral consisting of securities by reason of certain prohibitions
contained in the Securities Act of 1933, but may be compelled to resort to
one or more private sales to a restricted group of purchasers who will be
obliged to agree, among other things, to acquire such securities for their
own account, for investment and not with a view to the distribution or resale
thereof. Debtor agrees that any such private sales may be at prices and other
terms less favorable to the seller than if sold at public sales and that such
private sales shall be deemed to have been made in a commercially reasonable
manner. Secured Party has no obligation to delay sale of any such securities
for the period of time necessary to permit the issuer of such securities,
even if such issuer would agree, to register such securities for public sale
under the Securities Act of 1993; (b) Secured Party may appropriate, set off
and apply to the payment of any or all of the Obligations, any and all
Collateral in or coming into the possession of Secured Party or its agents
and belonging or owing to Debtor, without notice to Debtor, and in such
manner as Secured Party may in its discretion determine; (c) Secured Party
may exercise all voting rights with respect to all or any of the Collateral
consisting of securities and may exercise all powers with respect thereto as
if an absolute owner thereof, none of which shall adversely affect the
security interests granted herein or the Obligations.
6. To effectuate the terms and provisions hereof, Debtor hereby designates
and appoints Secured Party and its designees or agents as attorney-in-fact of
Debtor, irrevocably and with power of substitution, with authority; to
endorse the name of Debtor on any notes, acceptances, checks, drafts, money
orders, instruments or other evidences of payment or proceeds of the
Collateral that may come into Secured Party's possession; to sign the name of
Debtor on any invoices, documents, drafts against and notices to account
debtors or obligors of Debtor, assignments and requests for verification of
accounts to execute proofs of claim and loss; to execute any endorsements,
assignments, or other instruments of conveyance or transfer to adjust and
compromise any claims under insurance policies; to execute releases; and to
do all other acts and things necessary and advisable in the sole discretion
of Secured Party to carry out and enforce this Security Agreement. All acts
of said attorney or designee are hereby ratified and approved and said
attorney or designee shall not be liable for any acts of commission or
omission, nor for any error of judgment or mistake of fact or law. This power
of attorney being coupled with an interest is irrevocable while any of the
Obligations shall remain unpaid.
7. Secured Party shall have the duty to exercise reasonable care in the
custody and preservation of any securities in its possession included in the
Collateral, which duty shall be fully satisfied if Secured Party maintains
safe custody of any such securities, and, with respect to any maturities,
calls, conversions, exchanges, redemption, offers, tenders or similar matters
relating to any of such securities (herein called "events"), if in the
exercise of its sole discretion (a) Secured Party endeavors to take such
action with respect to any of the events as Debtor may reasonably and
specifically request in writing in sufficient time for such action to be
evaluated and taken or (b) Secured Party determines that the action requested
might adversely affect the value of the securities as collateral, the
collection of the Obligations secured, or otherwise prejudice the interests
of Secured Party, Secured Party gives reasonable notice to Debtor that any
such requested action will not be taken and if Secured Party makes such
determination or if Debtor fails to make such timely request, Secured Party
takes such other action as it deems advisable in the circumstances. Secured
Party shall have no further obligation to ascertain the occurrence of, or to
notify Debtor with respect to, any events and shall not be deemed to assume
any such obligation as a result of the establishment by Secured Party of any
internal procedures with respect to any securities in its possession,
nor shall Secured Party be deemed to assume any responsibility for, or
obligation or duty with respect to, any part or all of the Collateral, of any
nature or kind, or any matter or proceedings arising out of or relating
thereto, including, without limitation, any obligation or duty to take any
action to collect, preserve or protect its or Debtor's rights in the
Collateral or against any prior parties thereto, but the same shall be at
Debtor's sole risk at all times. If the Collateral hereunder includes "stock"
as defined in Regulation U of the Federal Reserve Board, it is hereby agreed
such "stock" shall not secure Obligations which are "purpose credits", as
that term is used in Regulation U, and (i) are secured solely by collateral
other than "stock" or (ii) are unsecured. Secured Party's prior recourse to
any part or all of the Collateral shall not constitute a condition of any
demand, suit or proceeding for payment or collection of the Obligations. Not
act, failure or delay by Secured Party shall constitute a waiver of its
rights and remedies hereunder or otherwise. No single or partial waiver by
the Secured Party of any Default or right or remedy which it may have shall
operate as a waiver of any other Default, right or remedy or of the same
Default, right or remedy on a future occasion. Debtor hereby waives
presentment, notice of dishonor and protest of all instruments included in or
evidencing any of the Obligations or the Collateral, and any and all other
notices and demands whatsoever (except as expressly provided herein). Xxxxxx
agrees to pay, on demand, all out-of-pocket expenses incurred by Secured
Party in connection with the negotiation, execution, perfection, consummation
and enforcement of this Security Agreement, the Obligations, and the
transactions contemplated hereunder and thereunder, including but not limited
to the fees and expenses of counsel to Secured Party. In the event of any
litigation, with respect to any matter connected with this Security
Agreement, the Obligations or the Collateral, Debtor and Secured Party waive
all rights to a trial by jury. Debtor also waives all defenses, including any
defense based on any Statute of Limitations or any claims of laches, rights
of setoff and the right to interpose counterclaims of any nature. Debtor
hereby irrevocably consents to the jurisdiction of the courts of the State of
New York and of any Federal Court located in such State in connection with
any action or proceeding arising out of or relating to the Obligations, this
Security Agreement or the Collateral, or any document or instrument delivered
with respect to any of the Obligations. Debtor hereby waives personal service
of any summons, complaint or other process in connection with any such action
or proceeding and agrees that the service thereof may be made by certified or
registered mail directed to Debtor at any place of business set forth below,
or at such other address as Debtor may designate by written notification by
certified or registered mail directed to and received by Secured Party at its
office set forth in the financing statements filed hereunder (or if no such
financing statements have been filed, at the office of Secured Party at which
is located the officer in direct supervision of the within security
interest). The Debtor so served shall appear or answer to such summons,
complaint or other process within thirty days after the mailing thereof.
Should the Debtor so served fail to appear or answer within said thirty-day
period, such Debtor shall be deemed in default and judgment may be entered by
Secured Party against such Debtor for the amount or such other relief as may
be demanded in any summons, complaint or other process so served. In the
alternative, in its discretion Secured Party may effect service upon Debtor
in any other form or manner permitted by law. All terms used herein shall
have the meanings as defined in the UCC, unless the context otherwise
requires. No provision hereof shall be modified, altered or limited except by
a written instrument expressly referring to this Security Agreement and to
such provision, and executed by the party to be charged. The execution and
delivery of this Security Agreement has been authorized by the Board(s) of
Directors of Debtor and by any necessary vote or consent of stockholders of
Debtor (if a corporation). This Security Agreement and all Obligations shall
be binding upon the heirs, executors, administrators, successors, or assigns
of Debtor, and shall, together with the rights and remedies of Secured Party
hereunder, inure to the benefit of Secured Party, its successors, endorsees
and assigns. This Security Agreement and the Obligations shall be governed in
all respects by the laws of the State of New York. If any term of this
Security Agreement shall be held to be invalid, illegal or unenforceable, the
validity of all other terms hereof shall in no way be affected thereby.
Secured Party is authorized to annex hereto any schedules referred to herein.
Debtor acknowledges receipt of a copy of this Security Agreement. See
Modification attached hereto and made a part thereof.
IN WITNESS WHEREOF, the undersigned has executed or caused this Security
Agreement to be executed in the State of New York, the date first above set
forth.
Witness: Xxxxxx X. Xxxx
(CORPORATE SEAL)
AMERICAN TECHNICAL CERAMICS CORP.
----------------------------------------------
(Debtor)
By /s/ Xxxxxxxx X. Xxxxx 2/17/95
Xxxxxxxx X. Xxxxx Vice President
--------------------------------------
Trade Name (if any).
N/A
----------------------------------------------
Chief Place of Business:
ALL LOCATION(S) OF COLLATERAL: (ALSO SET FORTH THE
One Norden Lane SECTION, BLOCK AND LOT IN THE CITY OF NEW YORK, COUNTY
Huntington Station, NY 11746 OF NASSAU OR COUNTY OF ONONDAGA WHERE THERE IS LOCATED
OTHER PLACES OF BUSINESS: ANY OF THE COLLATERAL WHICH IS OR MAY BE AFFIXED TO
REALTY.)
Xxx Xxxxxx Xxxx, Xxxxxxxxxx Xxxxxxx, XX 00000
XXXX 00 Xxxxxx Xxxxx, Xxxxxxxxxx Xxxxxxx, XX 00000
00 Xxxxxx Xxxxx, Xxxxxxxxxx Xxxxxxx, XX 00000
LOCATION OF BOOKS AND RECORDS 00 Xxxxxx Xxxxx, Xxxxxxxxxx Xxxxxxx, XX 00000
RELATING TO THE COLLATERAL:
NAME OF RECORD OWNER OF REAL ESTATE WHERE ANY OF
One Norden Lane THE COLLATERAL IS OR MAY BE AFFIXED TO REALTY:
Huntington Station, NY 11746 N/A
MODIFICATIONS TO GENERAL SECURITY AGREEMENT
DATED FEBRUARY 17, 1995
1. with reasonable wear and tear expected
2. during normal business hours upon reasonable advance notice
3. involving in excess of $300,000.00
4. relating to collateral
AMERICAN TECHNICAL CERAMICS CORP.
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------
Xxxxxxxx X. Xxxxx
Vice President
