NORTH FORK BANK
FIFTH RESTATED AND AMENDED
REVOLVING CREDIT NOTE
The within is a restatement and amendment and
continuation of that certain Amended and Restated
Revolving Credit and Term Loan Agreement originally made
between Apple Bank for Savings and Logimetrics, Inc.
dated May 19, 1992, previously assigned by Apple Bank for
Savings to North Fork Bank pursuant to an Assignment and
Assumption Agreement dated December 18, 1992; previously
restated and amended pursuant to a Restated and Amended
Revolving Credit Note dated November 18, 1993; previously
restated and amended pursuant to a Second Restated and
Amended Revolving Credit Note dated February 22, 1995;
previously restated and amended pursuant to a Third
Restated and Amended Revolving Credit Note dated June 30,
1995; and previously restated and amended pursuant to a
Fourth Restated and Amended Revolving Credit Note dated
October 16, 1995.
BORROWER: LOGIMETRICS, INC.
PRINCIPAL: $2,200,000 Date: March 7, 1996
PROMISE TO PAY: The undersigned (the "Borrower"), for value
received, does hereby promise to pay to the order of NORTH FORK
BANK (the "Bank") at its offices at 000 Xxxx Xxxx, Xxxxxxxxx, Xxx
Xxxx 00000, or at any of its branches, the sum of TWO MILLION TWO
HUNDRED THOUSAND ($2,200,000) DOLLARS plus interest thereon from
the date hereof as set forth herein.
RATE AND PAYMENT: The Borrower shall pay said sum, or such lesser
amount as may then be the aggregate unpaid principal balance of all
loans made by the Bank to the Borrower hereunder, (each a "Loan"
and collectively the "Loans") on or before October 31, 1997 (the
"Maturity Date").
The Borrower also promises to pay interest (computed on the basis
of a 360 day year for actual days elapsed) at said office on the
unpaid principal amount hereof from time to time outstanding at the
rate of two (2%) percent per annum in excess of that rate stated by
the Bank to be its Prime Rate from time to time in effect, payable
monthly in arrears on the first day of each month. Prime Rate as
referred to herein shall refer to the rate of interest determined
or announced by the Bank from time to time as its Prime Rate and
the Prime Rate is not necessarily the lowest rate of interest
charged by the Bank on loans and other credit relationships. Each
change in the Prime Rate shall effect a simultaneous and
corresponding change in the interest rate hereunder without notice
to the Borrower. Interest shall be payable monthly on the first
day of each month commencing on the first such day to occur after
the date hereof and upon payment in full of the unpaid principal
amount hereof.
Wherever any payment to be made under this Note is required to be
paid on a date that is a Saturday, Sunday or public holiday, or the
equivalent for banks under the laws of the State of New York, such
payment may be made on the next succeeding business day, and such
extension of time shall in such case be included in the computation
of interest due.
All payments due under the Note shall be made by automatic debit
from an account maintained by the Borrower for such purpose at the
Bank in which the Borrower shall maintain balances sufficient to
pay each monthly payment due to the Bank under the Loan. In the
event that the money maintained in such account is insufficient for
any payment due under this Note, the Bank may charge any account of
the Borrower for any payment due to the Bank under this Note.
The Bank may charge any account of the Borrower for any payment due
to the Bank hereunder.
DEFAULT INTEREST RATE: The unpaid principal sum due under this
Note shall bear interest at a rate equal to five (5%) percent above
the Rate set forth above on and after the occurrence of any event
of default and until the entire principal sum hereof has been fully
paid, both before and after the entry of any judgment with respect
to such event, but in no event shall the rate either before or
after the occurrence of any event of default exceed the highest
rate of interest, if any, permitted under applicable New York or
Federal Law. Such rate of interest shall continue until such time
as any event of default that may be cured by the Borrower is cured
to the satisfaction of the Bank, at which time the previously
stated interest rate shall re-commence. In no event shall the rate
either before or after the occurrence of any such default exceed
the highest rate of interest, if any, permitted under applicable
New York or Federal law.
RIGHT OF OFFSET: If any payment is not made on time, or if the
entire balance becomes due and payable and is not paid, all or part
of the amount due may be offset out of any account or other
property which the Borrower has at the Bank or any affiliate of the
Bank without prior notice or demand.
LATE CHARGES: The Borrower will pay a charge of five (5%) percent
of the amount of any payment which is not made within ten (10) days
of its respective due date, or, if applicable, which cannot be
debited from its account due to insufficient balance on the debit
date.
SECURITY: This Note is secured by:
(1) a security interest in and assignment and pledge of all
monies, deposits, or other sums now or hereafter held by the Bank
on deposit, in safekeeping, transit or otherwise, at any time
credited by or due from Bank to the Borrower, or in which the
Borrower shall have an interest; and
(2) a continuing first lien against all assets of the
Borrower as set forth, in part, in that certain Restated and
Amended General Security Agreement dated of even date herewith.
In consideration of the granting of the Loans evidenced by this
Note, the Borrower hereby agrees as follows:
REVOLVING CREDIT COMMITMENT:
(a) The Loans evidenced by this Note are available in
one or more advances during the period which commences on the date
hereof and ends on October 31, 1997 (the "Credit Period") in an
aggregate principal amount up to, but not exceeding at any time the
outstanding principal sum of Two Million Two Hundred Thousand
($2,200,000) Dollars (the "Commitment"). During the Credit Period,
the Borrower may use the Commitment by borrowing, prepaying in
whole or in part and reborrowing, on a revolving basis, all in
accordance with the terms and conditions hereof; provided, however,
that each Loan or prepayment be in a minimum amount of $10,000;
(b) Notwithstanding anything to the contrary set forth
herein, the outstanding principal balance of the Loans shall at no
time exceed the lesser of the Commitment or the aggregate amount
available to the Borrower under the following Borrowing Base (as
such amount shall fluctuate from time to time):
(i) an amount equal to eighty (80%) percent of
the Borrower's "Eligible Accounts Receivable", which
shall be defined as all accounts receivable of the
Borrower less uncollectible accounts and/or accounts
remaining unpaid after a date which is ninety (90) days
after the invoice date of said account receivable; plus
(ii) an amount equal to fifty (50%) percent of
the Borrower's "Eligible Inventory" on hand (said fifty
(50%) percent not to exceed One Million ($1,000,000)
Dollars). Eligible Inventory shall include only raw
materials, unfinished inventory, components and finished
goods;
(c) The Borrower shall submit to the Bank at the time of
each request for a Loan, but not less than one time per month, a
Borrowing Base Certificate confirming the calculation of the
Borrower's Eligible Accounts Receivable and Eligible Inventory and
calculating the amount available to the Borrower hereunder. Said
Borrowing Base Certificate shall be signed by an authorized
representative of the Borrower;
(d) The date and amount of each Loan and of each payment
of principal shall be maintained by the Bank in its books and
records at the time of each Loan or payment. Absent manifest error
on the part of the Bank, all such notations shall be presumed to be
correct and the aggregate net unpaid amount of Loans set forth
therein shall be presumed to be the principal balance hereof;
(e) Each request for a Loan shall be subject to the
satisfaction of the following conditions precedent:
(i) The Borrower shall have given the Bank
notice of such request, setting forth the amount of the
Loan requested and the date thereof. In addition to the
aforementioned, the Borrower shall submit to the Bank at
the time of each request, but in any event not less than
one time per month, a completed Borrowing Base
Certificate in the form annexed hereto as Exhibit "A"
satisfactory in form and substance to the Bank. Such
notice may be written or oral and shall be sufficient if
received by 1 p.m. of the date the Loan is requested. If
the request is oral, it shall be thereafter confirmed in
writing delivered by the Borrower to the Bank;
(ii) No Event of Default, or event which would
be an Event of Default but for the giving of notice or
the passage of time or both, has occurred and is
continuing; and all of the representations and warranties
made by the Borrower herein shall be true and correct in
all material respects on and as of the date of such
request as if made on and as of such date;
(f) The outstanding principal balance of the Loans shall
at no time exceed the amount of the Commitment;
(g) The Borrower acknowledges and represents that the
principal amount of $1,524,988.76 together with interest thereon
is outstanding under the terms hereof on the date hereof without
offset, defense or counterclaim.
CONDITIONS PRECEDENT:
The Borrower shall satisfy the following conditions
precedent including delivery to the Bank of the following:
(a) An executed copy of this Note;
(b) The Bank shall continue to maintain its first
perfected security interest in certain assets of the Borrower (the
"Collateral") pursuant to the general security agreement (the
"Security Agreement") as reaffirmed of even date herewith;
(c) A copy of the resolutions passed by the Borrower's
Board of Directors certified by its Secretary or Assistant
Secretary as being in full force and effect on the date of this
Agreement, authorizing the loan herein provided for, the execution,
delivery and performance of this Note and any other instrument or
agreement required hereunder and containing a certificate of
incumbency as to the person or persons authorized to execute and
deliver the same; and
(d) All other documents reasonably required by the Bank
and/or its counsel in order to evidence and/or secure the Bank's
position as set forth herein.
REPRESENTATIONS AND WARRANTIES: The Borrower hereby represents and
warrants to the Bank that:
(a) The Borrower is duly organized, validly existing and
in good standing under the laws of the State of its formation and
is qualified to do business and in good standing under the laws of
each state where its failure to so qualify would have a material
adverse effect on its business, operations or properties;
(b) This Note, the Security Agreement and all other
documents executed and delivered herewith have been duly
authorized, executed and delivered and constitute the valid and
legally binding obligations of the Borrower, enforceable in
accordance with their respective terms, including the granting to
the Bank of a first perfected security interest in the Collateral;
(c) The execution and delivery of this Note, the
Security Agreement and all other documents executed and delivered
herewith and performance hereunder and thereunder, will not violate
any provision of law;
(d) There are no actions or proceedings pending before
any court or governmental authority, bureau or agency, with respect
to or threatened against or affecting the Borrower, or any
Subsidiary, which if determined adversely would have a material
adverse effect on the business, the assets or the financial
condition of the Borrower or any Subsidiary. As used herein, the
term "Subsidiary" or "Subsidiaries" means any corporation or
corporations of which the Borrower alone, or the Borrower and/or
one or more of its Subsidiaries, owns, directly or indirectly, at
least a majority of the securities having ordinary voting power for
the election of directors;
(e) The Borrower is not in default under, or in
violation of, any term of any agreement, ordinance, resolution,
decree, bond, note, indenture, order or judgment to which it is a
party or by which it is bound, or by which any of the properties or
assets owned by or used in the conduct of its business is affected,
which default or violation may have a material adverse effect on
its business, assets or financial condition. The operations of the
Borrower comply in all material respects with all laws, ordinances
and regulations applicable to it;
(f) The Borrower is not a party to or bound by, nor are
any of the properties or assets owned by it or used in the conduct
of its business affected by any agreement, ordinance, resolution,
decree, bond, note, indenture, order or judgment, or subject to any
charter or other corporate restriction, which materially and
adversely affects its business, assets or financial condition;
(g) All balance sheets, profit and loss statements and
other financial information heretofore furnished to the Bank are
complete and present fairly the financial condition of the Borrower
and its Subsidiaries as at the dates thereof and for the periods
covered thereby, including contingent liabilities of every kind,
which financial conditions have not materially adversely changed
since the date of the most recently dated balance sheet of the
Borrower heretofore furnished to the Bank;
(h) No part of the proceeds of the loan which is
evidenced by this Note will be used directly or indirectly for the
purpose of purchasing or carrying, or for payment in full or in
part of indebtedness which was incurred for the purpose of
purchasing or carrying, any margin stock as such term is defined in
Sec. 221.3 of Regulation U of the Board of Governors of the Federal
Reserve System;
(i) The Borrower and its Subsidiaries are in compliance
in all material respects with the Employees Retirement Income
Security Act of 1974 ("ERISA") and all rules and regulations
thereunder. Neither the Borrower nor any of its Subsidiaries has
any unfunded vested liability under any type of plan described in
Section 4021(a) of ERISA ("Pension Plan") and no reportable event,
as set forth in Section 4043(b) of ERISA, has occurred or is
continuing with respect to any Plan.
FINANCIAL STATEMENTS: The Borrower shall deliver to the Bank:
(a) Annually, as soon as available, but in any event
within one hundred twenty (120) days after the last day of each
fiscal year, audited financial statements, including balance sheets
as of the last day of the fiscal year and statements of income and
retained earnings and changes in financial condition for such
fiscal year each prepared in accordance with generally accepted
accounting principles, consistently applied ("GAAP") for the period
and prior periods by independent Certified Public Accountants
satisfactory to the Bank;
(b) As soon as available, but in any event within forty-
five (45) days after the end of each fiscal quarter, internally
prepared financial statements of the Borrower each prepared in
accordance with GAAP and jobs-in-progress reports for said period
and prior periods;
(c) Within a reasonable time after a written request
therefor, such other financial data or information as the Bank may
reasonably request from time to time;
(d) At the same time as it delivers the financial
statements required under the provisions of subsections (a) and (b)
hereof, a certificate signed by the President or the chief
financial, or accounting, officer of the Borrower, to the effect
that no Event of Default hereunder or material default under any
other agreement to which the Borrower or any Subsidiary is a party
or by which it is bound, or by which any of its properties or
assets may be affected, and no event which, with the giving of
notice or the lapse of time, or both, would constitute such an
Event of Default, has occurred;
(e) On a monthly basis, no later than the tenth (10th)
day after each such month, the Borrowing Base Certificate
referenced herein and backlog reports and accounts receivable
agings of the Borrower.
AFFIRMATIVE COVENANTS: The Borrower will, and with respect to the
agreements set forth in subsections (a) through (f) hereof, will
cause each Subsidiary to:
(a) With respect to its properties, assets and business,
maintain insurance against loss or damage, to the extent that
property, assets and businesses of similar character are usually so
insured by companies similarly situated and operating like
properties, assets or businesses with responsible insurance
companies satisfactory to the Bank, said insurance to indicate the
Bank as an additional insured and loss payee;
(b) Duly pay and discharge all taxes or other claims
which might become a lien upon any of its properties except to the
extent that such items are being in good faith appropriately
contested;
(c) Maintain, preserve and keep its properties in good
repair, working order and condition, and make all reasonable
repairs, replacements, additions, betterments and improvements
thereto;
(d) Conduct its business in substantially the same
manner and in substantially the same fields as such business is now
carried on and conducted;
(e) Comply with all statutes, rules and regulations and
maintain its corporate existence;
(f) Permit the Bank to make or cause to be made,
inspections and audits of any books, records and papers of the
Borrower and of any Subsidiary and each endorser hereof and to make
extracts therefrom at all such reasonable times and as often as the
Bank may reasonably require;
(g) Immediately give notice to the Bank that an Event of
Default has occurred or that an event which, with the giving of
notice or lapse of time, or both, would constitute an Event of
Default, has occurred and specifying the action which the Borrower
has taken and proposes to take with respect thereto;
(h) In addition to the aforementioned, the Borrower
agrees that the following financial covenants are covenants upon
which the Bank relies in the extension of the obligation evidenced
hereby and that any violation or default under same shall
constitute an Event of Default under the terms hereof:
(1) at June 30, 1996, the Borrower shall
maintain a Tangible Net Worth equal to the greater of
(a) $4,500,000, or (b) the sum of $4,500,000 and any net
profit after taxes for the fiscal year ending June 30,
1996 (as calculated in accordance with GAAP) less any
preferred dividends (as such shall have been declared
during such fiscal year). At each fiscal year end
thereafter, the Borrower shall maintain a Tangible Net
Worth equal to the greater of (a) the required Tangible
Net Worth required hereunder for the immediately
preceding fiscal year, or (b) the sum of said required
Tangible Net Worth and any net profit after taxes for the
fiscal year then ending (as calculated in accordance with
GAAP) less any preferred dividends (as such shall have
been declared during such fiscal year). For purposes
hereof "Tangible Net Worth" shall mean, at any date, (i)
the net book value of assets (other than patents, patent
rights, trademarks, trade names, franchises, copyrights,
licenses, permits, goodwill and other intangible assets
classified as such in accordance with GAAP) after all
appropriate adjustments in accordance with GAAP
(including, without limitation, reserves for doubtful
receivables, obsolescence, depreciation and amortization)
plus (ii) subordinated indebtedness, in each case
computed in accordance with GAAP;
(2) As of each June 30 and December 31 of
each fiscal year, commencing with June 30, 1996, the
Borrower shall maintain an excess of Current Assets to
Current Liabilities of not less than 2.75 to 1.0. For
purposes hereof, "Current Assets" shall be defined as the
aggregate amount of all current assets of the Company and
its Subsidiaries including prepaid items such as
insurance, taxes, interest, commissions and rents as may
be properly classified as such in accordance with GAAP,
other than goodwill and such other assets as are properly
classified as "intangible assets" or deferred assets. In
determining the value of assets hereunder, investments in
Persons other than Subsidiaries shall be taken at cost or
fair market value, whichever is less. For purposes
hereof, "Current Liabilities" shall be defined as the
aggregate amount of all current liabilities of the
Company and its Subsidiaries determined in accordance
with GAAP;
(3) As of each June 30 and December 31 of
each fiscal year, commencing June 30, 1996, the Borrower
shall maintain Working Capital of not less than
$5,500,000. For purposes hereof, Working Capital shall
be defined as Current Assets less Current Liabilities;
(4) As of each June 30 and December 31 of
each fiscal year, commencing June 30, 1996, the Borrower
shall maintain a ratio of Total Liabilities (calculated
in accordance with GAAP excluding debt pursuant to the
Debentures as hereinafter defined) to Tangible Net Worth
of not more than 1.25 to 1.0;
(5) the Borrower shall maintain a Debt
Service Coverage ratio of not less than 1.05 : 1 at
fiscal year end June 30, 1996 and 1.20 : 1 at fiscal year
end June 30, 1997. For purposes hereof "Debt Service
Coverage" shall be defined as earnings before interest
taxes, depreciation and amortization for the fiscal year
ending on the date of determination divided by the sum of
current maturities of long term debt plus interest
expense whether paid or accrued plus preferred dividends
declared during such fiscal year (as all of the
aforementioned are calculated in accordance with GAAP).
COMPENSATING BALANCE AND DEFICIENCY FEE AGREEMENT: If at any
time during the term hereof, the aggregate average monthly ledger
balance maintained in the non-interest deposit accounts of the
Borrower at the Bank are less than $175,000, the Borrower shall pay
to the Bank an additional fee equal to (a) the difference between
$175,000 and the aggregate average monthly ledger balance
maintained in the non-interest bearing deposit accounts of the
Borrower at the Bank, multiplied by (b) a fixed rate (the
"Deficiency Rate") equal to four (4%) percent in excess of the
Bank's Prime Rate, based on a 360 day year and actual number of
days elapsed. The $175,000 Compensating Balance requirement set
forth herein is intended as an aggregate requirement for all
obligations of the Borrower to the Bank. The Deficiency Rate shall
be established on the first day of each January and July and shall
be applicable for the immediately ensuing six (6) month period.
The fee defined herein shall be due and payable within fifteen (15)
days following the end of each calendar quarter and shall be
debited by the Bank from any account maintained by the Borrower at
the Bank. The Borrower shall maintain sufficient funds in said
accounts to permit such debit.
Nothing contained herein shall be deemed to require the undersigned
to maintain Demand Deposit Balances at the Bank. The
aforementioned is intended as a fee only and is neither intended,
nor to be construed as, an imposition of interest or other charge.
NEGATIVE COVENANTS: The Borrower will not, and will not permit any
Subsidiary to:
(a) Create, incur, assume or suffer to exist any
liability for borrowed money, except (i) amounts outstanding under
the Borrower's twelve (12%) percent Convertible Senior Subordinated
Debentures, (ii) amounts outstanding under the Borrower's Amended
and Restated twelve (12%) percent Convertible Subordinated
Debentures (the aforementioned are collectively referred to herein
as the "Debentures") (iii) indebtedness to the Bank; (iv) existing
debt as reflected on the most recent balance sheet provided to the
Bank and further incurred through the date of this Agreement, which
further incurred debt has been acknowledged by the Borrower to the
Bank in writing prior to the execution hereof; and (v) other
indebtedness for borrowed money (whether or not constituting a
refinancing of existing indebtedness) so long as such indebtedness
is not secured by collateral securing repayment of this Loan and
the incurrence of which will not cause a default hereunder. The
Borrower agrees to provide the Bank an opportunity to finance any
additional borrowing needs in excess of $100,000 during the term of
this Note;
(b) enter into any merger or consolidation (where the
Borrower is not the surviving entity) or liquidate, wind-up or
dissolve itself or sell, transfer or lease or otherwise dispose of
all or any substantial part of its assets;
(c) lend or advance money, credit or property to or
invest in (by capital contribution, loan, purchase or otherwise)
any firm, corporation, or other person where any event of default
has occurred and is continuing or where such transaction would
cause an event of default hereunder;
(d) create, assume or permit to exist, any mortgage,
pledge, lien or encumbrance of or upon or security interest in, any
of its property or assets now owned or hereafter acquired except
(i) mortgages, liens, pledges and security interests in favor of
the Bank; (ii) subordinate liens incidental to the Debentures;
(iii) other liens, charges and encumbrances incidental to the
conduct of its business or the ownership of its property and assets
which were not incurred in connection with the borrowing of money
or the obtaining of advances or credit and which do not materially
impair the use thereof in the operation of its business; (iv) liens
for taxes or other governmental charges which are not delinquent or
which are being contested in good faith and for which a reserve
shall have been established in accordance with generally accepted
accounting principles; (v) liens granted to secure purchase money
financing of equipment, provided such liens are limited to the
equipment financed; and (vi) liens granted to refinance
unencumbered equipment provided such liens are limited to the
equipment refinanced and the incurrence of which will not cause a
default hereunder or in any other loan agreements or notes with the
Bank;
(e) assume, endorse, be or become liable for or
guarantee the obligations of any other person except by the
endorsement of negotiable instruments for deposit or collection in
the ordinary course of business;
(f) declare or pay any preferred dividends where any
Event of Default has occurred and is continuing;
(g) (i) terminate any Pension Plan so as to result in
any material liability to The Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA (the
"PBCG"), (ii) engage in or permit any person to engage in any
"prohibited transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Internal Revenue Code of 1954, as amended)
involving any Pension Plan which would subject the Borrower to any
material tax, penalty or other liability, (iii) incur or suffer to
exist any material "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, involving any Pension
Plan, or (iv) allow or suffer to exist any event or condition,
which presents a material risk of incurring a material liability to
the PBCG by reason of termination of any Pension Plan.
COLLATERAL SECURITY:
(a) As collateral security for the payment of any and
all sums owing under this Note and all other obligations, direct or
contingent, joint, several or independent, of the Borrower and of
any Subsidiary and each endorser hereof now or hereafter existing,
due or to become due to, or held, or to be held by, the Bank,
whether created directly or acquired by assignment or otherwise
(all of such obligations, including this Note, are hereinafter
called the "Obligations"), the Borrower hereby grants to the Bank
a lien on and security interest in any and all deposits or other
sums at any time credited by or due from the Bank to the Borrower,
whether in regular or special depository accounts or otherwise, and
any and all monies, securities and other property of the Borrower,
and the proceeds thereof, now or hereafter held or received by or
in transit to the Bank from or for the Borrower, whether for
safekeeping, custody, pledge, transmission, collection or
otherwise, and any such deposits, sums, monies, securities and
other property, may at any time after the occurrence of any Event
of Default be set-off, appropriated and applied by the Bank against
any of the Obligations whether or not such Obligations are then due
or are secured by any collateral, or, if they are so secured,
whether or not such collateral held by the Bank is considered to be
adequate and with respect to all collateral security the Bank shall
have all the rights and remedies available to it under the Uniform
Commercial Code of New York and other applicable law;
(b) This Note is also secured by the Collateral.
EVENTS OF DEFAULT: If any one or more of the following events
("Events of Default") shall occur the Borrower shall be in default
hereunder and, at the option of the Bank, the entire unpaid balance
of the principal of and interest on the Obligations shall
immediately become due and payable:
(a) Failure to pay any amount required by this Note
within ten (10) days of its respective due date, or any other
obligation owed to the Bank by Borrower, or, if applicable, failure
to have sufficient funds in its account for loan payments to be
debited on the due date;
(b) Failure to perform or keep or abide by any negative
or financial covenant set forth herein contained in this Note, or
any other document or instrument given to the Bank in connection
with this loan;
(c) Failure to perform or keep or abide by any other
term, covenant, or condition contained in this Note, or any other
document or instrument given to the Bank in connection with this
Loan, said failure continuing for a period of thirty (30) days
after written notice thereof;
(d) Payment Default by the Borrower or any declared
default pursuant to the Debentures;
(e) The Borrower makes an assignment for the benefit of
creditors or admits in writing its inability to pay its debts
generally as they become due; or an order, judgment or decree is
entered adjudicating the Borrower as bankrupt or insolvent; or any
order for relief with respect to the Borrower is entered under the
United States Bankruptcy Code; or the Borrower petitions or applies
to any tribunal for the appointment of a custodian, trustee,
receiver or liquidator of the Borrower or of any substantial part
of the assets of the Borrower, or commences any proceeding relating
to the Borrower under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law of
any jurisdiction; or any such petition or application is filed, or
any such proceeding is commenced, against the Borrower and either
(i) the Borrower by any act indicates its approval thereof,
consents thereto, or acquiesces therein or (ii) such petition,
application or proceeding is not dismissed within sixty (60) days;
(f) The happening of any event which, in the judgment of
the Bank, adversely affects the Borrower's ability to repay or the
value of any collateral;
(g) If any material written representation or material
statement made to the Bank by the Borrower is untrue when made;
(h) The occurrence of a default under any other document
or instrument given to the Bank in connection with this loan;
(i) Failure to provide any financial information on
request or permit an examination of books and records;
(j) In the event that any person or "group" (as defined
in Rule 13d-5 promulgated under the Exchange Act), other than SFM
Group, Ltd. or Xxxxxx, Xxxxx & Company, L.L.C., acquires or
otherwise obtains the right (whether by contract, through the
ownership of securities or pursuant to any proxy or consent
arrangement, voting trust or otherwise) to appoint, elect or cause
the election of a majority of the Board of Directors of the
Company;
(k) if any order is entered by any court or tribunal, at
law or in equity, by or against any of the Obligors for the
appointment of any receiver or any trustee for any of the Obligors
and said Order is not discharged within sixty (60) days from the
entry thereof.
ATTORNEYS FEES: In the event the Bank retains counsel with respect
to enforcement of this Note or any other document or instrument
given to the Bank, the Borrower agrees to pay the Bank's reasonable
attorneys fees (whether or not an action is commenced and whether
or not in the court of original jurisdiction, appellate court,
bankruptcy court, or otherwise).
SUBSEQUENT AGREEMENTS: The Borrower shall be bound by any
agreement extending the time or modifying the above terms of
payment made by the Bank without notice to the Borrower, and the
Borrower shall continue to be liable to pay all amounts due
hereunder, but at an interest rate not exceeding the rate set forth
herein, according to the terms of any such agreement of extension
or modification.
MISCELLANEOUS:
(a) Only those agreements, representations and
warranties made expressly herein shall survive the delivery of this
Note. The Borrower waives trial by jury, set-off and counterclaim
of any nature or description in any litigation in any court with
respect to, in connection with, or arising out of, this Note or any
instrument or document delivered pursuant hereto or the validity,
protection, interpretation, collection or enforcement hereof;
(b) No modification or waiver of or with respect to any
provision of this Note, or consent to any departure by the Borrower
from any of the terms or conditions hereof, shall in any event be
effective unless it shall be in writing and signed by the Bank, and
then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or
demand on the Borrower in any case shall, of itself, entitle it to
any other or further notice or demand in similar or other
circumstances;
(c) Each and every right granted to the Bank hereunder
or under any other document delivered hereunder or in connection
herewith, or allowed it by law or equity, shall be cumulative and
may be exercised from time to time. No failure on the part of the
Bank or the holder of this Note to exercise, and no delay in
exercising, any right shall operate as a waiver thereof, nor shall
any single or partial exercise of any right preclude any other or
future exercise thereof or the exercise of any other right;
(d) In the event that this Note is placed in the hands
of an attorney for collection by reason of any default hereunder,
the Borrower agrees to pay reasonable attorney's fees so incurred.
The Borrower promises to pay all reasonable out-of-pocket expenses
of any nature as soon as incurred whether in or out of court and
whether incurred before or after this Note shall become due at its
maturity date or otherwise and costs which the Bank may deem
necessary or proper in connection with the satisfaction of the
indebtedness or the administration, supervision, preservation,
protection (including but not limited to maintenance of adequate
insurance) of or the realization upon the collateral;
(e) The Borrower hereby waives presentment, demand for
payment, protest, notice of protest, notice of dishonor, and any or
all other notices or demands except as otherwise expressly provided
for herein;
(f) All accounting terms not otherwise defined in this
Note shall have the meanings ascribed thereto under generally
accepted accounting principles;
(g) Delay or failure of the Bank to exercise any of its
rights under this Note shall not be deemed a waiver thereof. No
waiver of any condition or requirement shall operate as a waiver of
any other or subsequent condition or requirement. The Bank or any
other holder of this Note need not present it before requiring
payment. The Borrower waives trial by jury, offset, and
counterclaim with respect to any action arising out of or relating
to this Note. This Note may not be modified or terminated orally.
This Note shall be governed by the laws of the State of New York
without regard to its conflicts of laws rules. The Borrower
irrevocably consents to the jurisdiction and venue of the New York
State Supreme Court, Suffolk County in any action concerning this
Note. This Note is binding upon the Borrower, its heirs,
successors and assigns;
(h) The Borrower expressly warrants and represents that
no statements, agreements or representations, whether oral or
written, have been made by the Bank, or by any employee, agent or
broker of the Bank with respect to the obligation or debt evidenced
by this Note. The Borrower further expressly warrants and
represents that (i) no oral commitment has been made by the Bank to
extend or continue any credit to the Borrower or any party other
than as expressly stated herein or in those certain documents
executed in connection herewith, (ii) no representation or
agreement has been made by or with the Bank, or any employee, agent
or broker of the Bank, to forebear or refrain in any way from
exercising any right or remedy in its favor hereunder or otherwise
unless expressly set forth herein, and (iii) the Borrower has not
and will not rely on any commitment to extend or continue any
credit, nor on any agreement to forebear or refrain from exercising
rights or remedies unless such commitment or agreement shall be in
writing and duly executed by an authorized officer of the Bank.
NOTICES: All notices, requests and other communications pursuant
to this Note shall be in writing, either by letter (delivered by
hand or sent by certified mail, return receipt requested) or
telegram, addressed as follows:
(a) if to the Borrower:
Logimetrics, Inc.
000-00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, President
(b) if to the Bank:
North Fork Bank
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, Vice President
Any notice, request or communication hereunder shall be
deemed to have been given when deposited in the mails, postage
prepaid, or in the case of telegraphic notice, when delivered to
the telegraph company, addressed as aforesaid. Any party may
change the person or address to whom or which the notices are to be
given hereunder, but any such notice shall be effective only when
actually received by the party to whom it is addressed.
IN WITNESS WHEREOF, the Borrower has signed this Note the
7th day of March, 1996.
LOGIMETRICS, INC.
By: _________________________
Xxxxxx X. Xxxxxxxxxx
President
STATE OF NEW YORK)
) ss.:
COUNTY OF SUFFOLK)
On this 7th day of March, 1996, before me personally came
Xxxxxx X. Xxxxxxxxxx, to me known, who, being by me duly sworn, did
depose and say that he has an address at c/o LOGIMETRICS, INC.,
000-00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, that he is the
President of LOGIMETRICS, INC., the corporation described in, and
which executed, the foregoing instrument; and that he signed his
name thereto by order of the Board of Directors of said
corporation.
_________________________
NOTARY PUBLIC
EXHIBIT "A"
BORROWING BASE CERTIFICATE
The undersigned hereby certifies that:
1. The undersigned has performed and complied in all
respects with the agreements, covenants and conditions of those
certain loan agreements dated March 6, 1996 between North Fork Bank
and the undersigned; and
2. On the date hereof, there exists no event of default or
default as defined in the aforementioned agreements, and no
material adverse change has occurred to the financial condition of
the Borrower between March 6, 1996 and the date hereof; and
3. The following information relating to the Borrowing Base
as defined in the agreement is true and accurate and represents
fairly and completely the status of the stated information as of
the date hereof.
Eligible Inventory _____ x 50% ____
Eligible Accounts Receivable _____ x 80% ____
Total Eligible Inventory and Accounts Receivable
Less Outstanding Loan (A) ----------------
Remaining Eligibility (B)
(A + B not to exceed the sum of $2,200,000) ================
LOGIMETRICS, INC.
By: ___________________________
Xxxxxx X. Xxxxxxxxxx
President
