Exhibit 10.38
SUBORDINATED LOAN AGREEMENT
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SUBORDINATED LOAN AGREEMENT, dated as of August 6, 1999, among CALCOMP
TECHNOLOGY, INC., a Delaware corporation (the "Borrower") and LOCKHEED XXXXXX
CORPORATION, a Maryland corporation (the "Lender").
W I T N E S S E T H
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WHEREAS, on the date hereof, the Borrower has filed a Certificate of
Dissolution with the Secretary of State of the State of Delaware pursuant to
which the Borrower will effect its complete liquidation and dissolution;
WHEREAS, the Borrower has requested the Lender to make available to
the Borrower financing in an amount up to $5,000,000 to be used by the Borrower
to fund the Administrative Expenses to be incurred by the Borrower in connection
with the winding-up of its affairs and its dissolution; and
WHEREAS, the Lender has agreed to provide financing for such purposes
in an amount up to the Maximum Available Amount (as defined herein) in effect
from time to time on the terms, and subject to the conditions, set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower and the
Lender agree as follows:
SECTION 1. DEFINITIONS The following terms, as used herein, shall
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have the following respective meanings:
"Administrative Expenses" shall mean general administrative
expenses, employee salaries and benefits and bona fide fees and expenses of
professional advisors to the Borrower (including agreed upon "success fees" of
the Liquidation Specialist and reasonable fees and expenses of the Borrower's
attorneys and accountants) actually incurred by the Borrower in connection with
the transactions contemplated by the Certificate and the Plan.
"Agreement" means this Subordinated Loan Agreement, as amended,
restated, extended or otherwise modified from time to time in accordance with
the terms hereof.
"Authorized Officer" means the Chief Executive Officer of the
Borrower.
"Bankruptcy Event" means the Borrower or any of its Subsidiaries
shall have commenced a voluntary case or other proceeding or an involuntary case
or other proceeding shall
have been commenced against such Person seeking liquidation, reorganization or
other relief with respect to itself or its debts under any federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment by a court of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its Property, or such
Person shall make a general assignment for the benefit of its creditors. The
term "Bankruptcy Event" shall not include a voluntary dissolution proceeding
under applicable law as contemplated by the Certificate in which no trustee or
receiver is appointed.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or directed to
close.
"Certificate" means the Certificate of Dissolution of the Borrower
filed with the Secretary of State of the State of Delaware on the date hereof.
"Dollars" and the sign "$" means lawful money of the United States.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and any corporation or entity whose stock or capital ownership is owned or
controlled by any of the foregoing.
"Lien" means with respect to any property or asset (or any income or
profits therefrom) of any Person (in each case whether the same is consensual or
nonconsensual or arises by contract, operation of law, legal process or
otherwise) (a) any mortgage, lien, pledge, attachment, levy or other security
interest of any kind thereupon or in respect thereof, but not including the
interest of a third party in receivables sold by such Person to such third party
on a non-recourse basis or (b) any other arrangement, express or implied, under
which the same is subordinated, transferred, sequestered or otherwise identified
so as to subject the same to, or make the same available for, the payment or
performance of any liability in priority to the payment of the ordinary,
unsecured liabilities of such Person. For the purposes of this Agreement, a
Person shall be deemed to own subject to a Lien any asset that it has acquired
or holds subject to the interest of a vendor or lessor under any conditional
sale agreement, capital lease or other title retention agreement relating to
such asset.
"Liquidation Specialist" means Brincko Associates, Inc., an
independent third-party liquidation specialist, retained by the Borrower to
review, validate and implement the Plan.
"Loan" means a loan made by the Lender to the Borrower pursuant to
Section 2, or all such Loans, as the context may require.
"Maximum Available Amount" means $5,000,000.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a business trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means the detailed Plan of Dissolution and Liquidation of the
Borrower, as amended from time to time with the written consent of the Lender.
"Prime Rate" means a fluctuating per annum rate of interest as shall
be in effect from time to time, which rate shall at all times be equal to the
per annum rate of interest publicly announced from time to time by Xxxxxx
Guaranty Trust Company of New York in New York as its "prime" rate. Any change
in the Prime Rate due to a corresponding change in Xxxxxx Guaranty Trust Company
of New York's "prime" rate shall take effect on the day specified in the public
announcement of such change.
"Property" means any estate or interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or intangible.
"Revolving Credit Agreement" means the Amended and Restated Revolving
Credit Agreement dated December 20, 1996 between the Borrower and CalComp Inc.
and the Lender, as amended through the date hereof.
"Secured Loan Facility" shall mean the Secured Demand Loan Facility by
and among the Borrower, CalComp Inc., Topaz Technologies, Inc. and the Lender
dated January 14, 1999, as amended, together with the Security Agreement of even
date therewith.
"Subsidiary" means, as to any Person, any corporation, association,
partnership, joint venture or other business entity of which more than 50% of
the voting capital stock or other voting ownership interests is owned or
controlled directly or indirectly by such Person or by one or more of the
Subsidiaries of such Person or by a combination thereof, and, as to the
Borrower, "Subsidiary" shall also mean CalComp.
"Tax" means all taxes, levies, imposts, stamp taxes, sales tax, goods
and services tax, duties, charges to tax, fees, deductions, withholdings and any
restrictions or conditions resulting in a charge to tax, in each case imposed by
or payable to a government or governmental agency, and all penalty, interest and
other payments on or in respect thereof.
"Term of this Agreement" means the period from the date hereof to and
including the Termination Date.
"Termination Date" means the earlier of (i) the third anniversary of
the date hereof and (ii) the date on which the Lender notifies the Borrower of
termination which notice may be delivered by the Lender in its sole and absolute
discretion. The termination of this Agreement for any reason shall in no way
affect the Lender's rights and remedies and ability to collect any amounts
outstanding hereunder.
SECTION 2. THE LOANS
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Section 2.1. Loans. During the Term of this Agreement and subject to
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Section 2.2 below, the Lender agrees, on the terms and conditions contained in
this Agreement, to make Loans to the Borrower at any time prior to the
Termination Date in an aggregate principal amount not exceeding at any one time
outstanding the Maximum Available Amount in effect at the time the Loans are
made; provided, however, that no Loan shall be requested by the Borrower except
to the extent that the funds which are projected by the Borrower to be available
to the Borrower during such period (other than pursuant to this Agreement) are
less than the projected cash requirements during such period. The Borrower
shall repay Loans in accordance with Section 2.3.
Section 2.2. Method of Borrowing.
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(a) Requests for borrowing pursuant to Section 2.2(b) below may
be made by the Borrower no more frequently than monthly and may only be made
with respect to the funding of Administrative Expenses for the period identified
in the statement of projections of costs and cash flows delivered pursuant to
Section 4.1(a) (which period shall in no event exceed one month) in respect of
the request for borrowing made pursuant to Section 2.2(b).
(b) With respect to each Loan made pursuant to Section 2.1
hereof, the Borrower shall have complied with Section 4.1(a) with respect to
such request and shall give the Lender a written notice of borrowing notifying
the Lender of its request to borrow hereunder which notice will specify (i) the
date of the Loan, which date shall be a Business Day, (ii) the principal amount
of the Loan and (iii) a detailed description of the purposes for which the
proceeds of the Loan are to be used. The notice of borrowing shall be written
and shall be accompanied by a certificate of an Authorized Officer certifying
that (i) the proceeds of the Loan are to be used solely for the Administrative
Expenses described in the notice, (ii) such Administrative Expenses are in
accordance with and in furtherance of the Plan, (iii) no Bankruptcy Event has
occurred, and (iv) to the best of such Authorized Officer's knowledge, no breach
of this Agreement (or any representation or warranty made in any notice or
document delivered pursuant hereto or thereto) has occurred.
(c) The Lender shall have the right to accept or reject, in whole
or in part, any request for borrowing based on the Lender's sole and absolute
discretion. Nothing in this Agreement or any other document and no course of
dealing shall be deemed to imply any limitation on the discretionary and demand
nature of the Loans or to require that the Lender give any notice of or reason
for declining from time to time to make any Loan.
(d) If a Borrower gives the notice required by Section 2.2(b) with
respect to any Loan before 1:00 p.m. (Eastern Time), the Lender will accept or
reject that request, in whole or in part, and to the extent accepted, disburse
the proceeds of the Loan to the Borrower in immediately available funds as soon
as practicable thereafter. The Lender will disburse all Loans to the Borrower
by deposit in an account to be maintained by the Borrower.
Section 2.3. Repayment and Prepayment of the Loans
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(a) The Borrower promises and agrees to repay to the Lender all Loans,
together with interest accrued through the date of repayment, at the earlier to
occur of (i) the Business Day following delivery of written demand by the Lender
or (ii) the Termination Date. Without prejudice to any of the rights of the
Lender arising under this Agreement, the Lender shall have the right at any time
and from time to time to demand repayment, in whole or in part, of any Loans,
together with any accrued but unpaid interest thereon.
(b) The Lender may, in its sole discretion, set off any amounts due
and owing to it by the Borrower hereunder (and not otherwise paid by the
Borrower) against amounts owed by the Lender and its Subsidiaries (other than
the Borrower and its Subsidiaries) to the Borrower.
(c) The Borrower may repay or prepay the outstanding principal amount
of Loans in whole or in part on any Business Day. Each such repayment or
prepayment shall be accompanied by payment of all accrued interest thereon and
may be made at any time without cost or penalty of any kind.
Section 2.4. Evidence of the Loans
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(a) The Loans made to the Borrower shall be evidenced by this
Agreement and by a loan account in a Borrower's name to be maintained by the
Lender. All Loans shall be payable by the Borrower to the order of the Lender
on demand and in no event later than the Termination Date.
(b) The Lender's loan account shall reflect appropriate notations
evidencing the date, the amount and the maturity of each Loan and the date and
amount of each payment of principal made by the Borrower with respect thereto.
The loan account shall be conclusive evidence, absent manifest error, of the
amount of the Loans, the interest accrued and payable thereon and all interest
and principal payments made thereon. Any failure to record or any error therein
shall in no way limit or otherwise affect the obligations of the Borrower
hereunder to pay any amount owing with respect to the Loans.
Section 2.5. Interest Rates and Payments. (a) Loans shall bear interest
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on the outstanding principal amount thereof at a rate per annum equal to the
Prime Rate as in effect from time to time. Interest on Loans shall accrue
monthly and be payable on the earlier to occur of (i) the Business Day following
demand by the Lender or (ii) the Termination Date. The Lender will notify the
Borrower
in writing, upon request of a Borrower, of the amount of interest payable
hereunder with respect to Loans which notice will set forth in reasonable detail
the calculation of such amount.
(b) Overdue principal of and, to the extent permitted by law,
overdue interest on the Loans shall bear interest, payable on demand of the
Lender, for each day until paid at a rate per annum equal to the Prime Rate plus
2% (two percent).
Section 2.6. General Provisions as to Payments. The Borrower shall
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make each payment of principal of, and interest on, the Loans hereunder in
Dollars on the date when due in funds immediately available in the account that
the Lender shall designate from time to time. Whenever any payment of principal
of, or interest on, the Loans shall be due on a day that is not a Business Day,
the date for payment thereof shall be extended to the next succeeding Business
Day. If the date for any payment of principal is extended by operation of law
or otherwise, interest shall be payable for such extended time at a rate per
annum equal to the Prime Rate.
Section 2.7. Computation of Interest. Interest on Loans shall be
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computed for each day on the basis of a year of 365 or 366 days, as the case may
be.
Section 2.8. No Deduction. All amounts payable by the Borrower under
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this Agreement are payable without deduction or set-off.
Section 2.9. Use of Proceeds. The proceeds of Loans will be employed
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by the Borrower only for purposes of paying Administrative Expenses incurred in
connection with the Plan, will be used only to pay for the specified purpose and
for no more than the specified amount set forth in the budget referred to in
Section 4.2(a) below and may only be used for the purposes described in the
request for borrowing for such Loan to the extent accepted by the Lender.
Section 2.10. Subordination. Loans outstanding under this Agreement
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shall constitute unsecured obligations of the Borrower and shall be expressly
subordinate and junior in right of payment to all secured indebtedness of the
Borrower and all unsecured and unsubordinated indebtedness of the Borrower
whether now or hereafter existing. Nothing contained herein shall limit the
Lender's rights under the Secured Loan Facility.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
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The Borrower hereby represents and warrants to the Lender that as of
the date hereof:
Section 3.1. Corporate Existence and Power. The Borrower is a
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corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, has full power and authority to carry
on its business as now being conducted and to own its properties and is duly
licensed or qualified and in good standing as a foreign corporation in each
other jurisdiction in which failure to qualify would have a material adverse
effect on the Borrower's ability to perform this Agreement except to the extent
affected by the filing of the
Certificate. The Borrower is in compliance with its charter and bylaws and all
other organizational or governing documents.
Section 3.2. Corporate Authorization. The execution, delivery and
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performance by the Borrower of this Agreement are within the Borrower's
corporate power and have been duly authorized by all necessary corporate action.
The execution, delivery and performance by the Borrower of this Agreement and
the transactions contemplated hereby and thereby have been approved by at least
a majority of the disinterested directors of the Borrower.
Section 3.3. Binding Effect. This Agreement constitutes the valid
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and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms.
Section 3.4. No Contravention. The Borrower's execution and delivery
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of, and performance of its obligations under this Agreement do not, and
consummation of the transactions contemplated hereby will not, result in:
(a) a violation of or a conflict with any provision of the
charter, bylaws or any other organizational or governing document of the
Borrower;
(b) a breach or default under any provision of any contract,
agreement, lease, commitment, license, franchise or permit to which the Borrower
is a party or by which any property of a Borrower is bound;
(c) a violation of any statute, rule, regulation, ordinance,
order, judgment, writ, injunction, decree or award of any judicial,
administrative, governmental or other authority or of any arbitrator; or
(d) an imposition on the business of a Borrower or on any of its
properties of any Lien (other than as contemplated by the Security Agreement).
Section 3.5. Litigation. Except as set forth in Schedule 3.5, there
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is no action, suit, litigation or proceeding at law or in equity or by or before
any Governmental Authority now pending against or, to the knowledge of the
Borrower, threatened against the Borrower or any of its Subsidiaries or any of
their respective Properties other than as described in the Borrower"s periodic
reports filed pursuant to the Securities Exchange Act of 1934.
Section 3.6. Licenses and Authorizations. The Borrower and its
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Subsidiaries have obtained all licenses, permits and certificates and all other
approvals, orders, authorizations and consents and have made all declarations,
filings and registrations which are necessary for the ownership by the Borrower
and its Subsidiaries of their respective Properties and for the conduct by the
Borrower and its Subsidiaries of their respective businesses, except (i) for
those, which, if not obtained or made, could not reasonably be expected to have
a material adverse effect on the Borrower's ability to perform this Agreement
and (ii) to the extent affected by the filing of the
Certificate. No approval of or filing with any Governmental Authority is or will
be necessary for the valid execution, delivery or performance by the Borrower of
this Agreement or for the performance by the Borrower of any of the terms or
conditions hereof or thereof, except for such approvals as have been obtained.
SECTION 4. AFFIRMATIVE COVENANTS
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So long as this Agreement shall be in effect or any amount payable
hereunder remains unpaid, unless the Lender shall have waived compliance in
writing, the Borrower agrees that:
Section 4.1. Notices, Reports and Forecasts. The Borrower will
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promptly furnish to the Lender:
(a) (i) With respect to the initial request for borrowing
pursuant to Section 2.2(b), the Borrower shall have delivered to the Lender,
such detailed information as the Lender shall request in its sole and absolute
discretion and (ii) with respect to any subsequent request for borrowing, at
least 2 Business Days prior to delivery of any request for borrowing pursuant to
Section 2.2(b), a detailed written report of all disbursements and receipts of
the Borrower and its Subsidiaries for the borrowing period preceding the
borrowing period during which such request is made, an accounting of the use of
proceeds of Loans during such period (i.e., a variance report with detailed
explanations) and a statement of projections of costs and cash flow for the
period for which the proceeds of any Loan will be used, as well as any
additional related reports reasonably requested by the Lender; and
(b) Not later than the tenth day of each calendar month (or if
not a Business Day, the next Business Day), a written report of all
disbursements and receipts of the Borrower and its Subsidiaries during the
preceding calendar month and an accounting of the use of proceeds of Loans
during such month certified by the Liquidation Specialist and a written report
of the progress through the end of the preceding calendar month in disposing of
and liquidating the assets of the Borrower and its Subsidiaries and otherwise
effecting the Plan, which report shall contain such information as the Lender
may reasonably request including, but not limited to (i) the status of
disposition of assets and receipt of proceeds therefor (including with respect
to any foreign entities or assets controlled by the Borrower and its
Subsidiaries), (ii) the costs incurred in connection therewith, (iii) an
explanation of any significant variances from the costs and cash flow
projections previously furnished to the Lender, and (iv) a reasonable detailed
update of the Plan, including the legal status of the transactions contemplated
thereby;
(c) Notice of any pending or threatened Bankruptcy Event and of
any pending or threatened litigation or other proceeding before any judicial,
administrative or arbitral body to which the Borrower or any of its Subsidiaries
is a party or any dispute which may exist between the Borrower or any of its
Subsidiaries and any Governmental Authority; and
(d) At the time the Borrower (or an Authorized Officer) furnishes
the
information, reports, lists and computations required by this Agreement, the
Borrower shall be deemed to have represented and warranted to the Lender that
each component of such information, reports, lists and computations materially
complies with the terms and conditions of this Agreement and is true, correct
and complete.
Section 4.2. Plan of Complete Liquidation and Dissolution, etc. The
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Borrower will, and will cause its Subsidiaries to:
(a) do or cause to be done all things necessary to effect the
complete liquidation and dissolution of the Borrower in as expeditious a manner
as practicable; and
(b) comply with all material requirements of all applicable laws,
decrees, regulations and similar enactments and with all applicable judgments,
injunctions and other orders and awards of judicial, administrative,
governmental and other authorities and arbitrators in connection with the
consummation of the transactions contemplated by the Plan.
SECTION 5. MISCELLANEOUS.
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Section 5.1. Notices. Unless otherwise specified herein, all
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notices, requests, demands or other communications to or from the parties hereto
shall be made by personal delivery, mail or telecopy and shall be effective upon
receipt by such party. Any such notice, request, demand or communication shall
be delivered or addressed as follows:
(i) if to the Borrower, to it at:
CalComp Technology, Inc.
0 Xxxxxxxxxxxx Xxxxx
Xxxxx 000
XxXxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopy: (000) 000-0000
(ii) if to the Lender, to it at:
Lockheed Xxxxxx Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Vice President and Treasurer
Telecopy: (000) 000-0000
with a copy to:
Lockheed Xxxxxx Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Block
Vice President and Associate
General Counsel
Telecopy: (000) 000-0000
or at such other address or telex number or telecopy number as any party hereto
may designate by written notice to the other party hereto.
Section 5.2. Amendments and Waivers; Cumulative Remedies.
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(a) None of the terms of this Agreement may be waived, altered or
amended except by an instrument in writing duly executed by the Borrower and the
Lender; and
(b) No failure or delay on the part of the Lender in exercising any
right, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this Agreement preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. No failure or delay on the
part of the Lender in exercising any right, power or privilege under the
Revolving Credit Agreement, the Cash Management Agreement or the Secured Loan
Facility shall operate as a waiver or preclude any exercise of any right, power
or privilege hereunder. Nothing contained herein shall be deemed to negate or
novate the Revolving Credit Agreement, the Cash Management Agreement or the
Secured Loan Facility or any other agreements between the parties hereto or
otherwise release, modify or terminate the Lender's rights thereunder. The
rights and remedies provided and contemplated by this Agreement are cumulative
and not exclusive of any rights or remedies provided by law and shall not be
effected by the termination of this Agreement for any reason.
Section 5.3. Successors and Assigns. This Agreement shall be binding upon
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and shall inure to the benefit of the Borrower and the Lender and their
respective successors and assigns, provided that the Borrower may not assign any
of their rights and obligations hereunder without the prior written consent of
the Lender
Section 5.4. Expenses and Withholding.
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(a) The Borrower shall pay all out-of-pocket expenses of the Lender in
connection with the preparation and administration of this Agreement and all
out-of-pocket expenses incurred by the Lender (including reasonable fees and
disbursements of counsel and reasonable time charges of lawyers who may be
employees of the Lender) in connection with any collection and other enforcement
proceedings resulting herefrom.
(b) All payments to be made by or on behalf of the Borrower under or
in connection with this Agreement are to be made without deduction or
withholding for or on account of any Tax. If any Tax is deducted or withheld
from any payment, the Borrower shall promptly remit to the Lender the equivalent
of the amount so deducted or withheld together with relevant receipts, if
available, addressed to the Lender. If the Borrower is prevented by operation
of law or otherwise from paying, causing to be paid or remitting such Tax, the
interest payable under this Agreement shall be increased to such rates as are
necessary to yield and remit to the Lender the principal sum advanced together
with interest at the rates specified in this Agreement after provision for
payment of such Tax. The Borrower shall from time to time at the request of the
Lender execute and deliver any and all further instruments necessary or
advisable to give full force and effect to such increase in the rates of
interest as are necessary to yield to the Lender interest at the specified
rates. The Borrower shall also indemnify, jointly and severally, the Lender in
respect of any claim or loss which it may suffer as a result of the delay or
failure of the Borrower to make any such payment including penalties relating
thereto or interest thereon.
Section 5.5. Counterparts. This Agreement may be signed in any number of
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counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
Section 5.6. Headings; Table of Contents. The section and subsection
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headings used herein and the Table of Contents have been inserted for
convenience of reference only and do not constitute matters to be considered in
interpreting this Agreement.
Section 5.7. Governing Law; Confessed Judgment.
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(a) This Agreement shall be construed in accordance with and governed
by the laws of the State of Maryland, without reference to the conflict of law
provisions of such laws.
(b) The Borrower (i) hereby irrevocably submits to the jurisdiction of
the courts of the State of Maryland over any suit, action or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby and
(ii) hereby agrees with the Lender that the courts of the State of Maryland will
have exclusive jurisdiction over any such suits, actions or proceedings. Final
judgment in any such suit, action or proceeding in any such court
shall be conclusive and binding upon the Borrower and may be enforced in any
court in which the Borrower is subject to jurisdiction by suit upon such
judgment provided that service of process is effected as permitted by applicable
law.
(c) IN THE EVENT THAT THE BORROWER FAILS TO PAY ANY AMOUNT DUE
HEREUNDER (WHETHER UPON DEMAND OF THE LENDER OR UPON THE TERMINATION DATE) THE
BORROWER HEREBY AUTHORIZES ANY ATTORNEY DESIGNATED BY THE LENDER OR ANY CLERK OF
ANY COURT OF RECORD TO APPEAR FOR THE BORROWER IN ANY COURT OF RECORD AND
CONFESS JUDGMENT AGAINST THE BORROWER IN FAVOR OF THE LENDER, WITHOUT PRIOR
HEARING, FOR AND IN THE AMOUNT OF ANY UNPAID LOANS PLUS INTEREST ACCRUED AND
UNPAID THEREON, TOGETHER WITH REASONABLE ATTORNEY'S FEES (NOT TO EXCEED 15% OF
THE UNPAID PRINCIPAL AMOUNT OF LOANS HEREUNDER). THE BORROWER HEREBY RELEASES
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL ERRORS AND ALL RIGHTS TO
EXEMPTION, APPEAL, STAY OF EXECUTION, INQUISITION, AND OTHER RIGHTS TO WHICH THE
BORROWER MAY OTHERWISE BE ENTITLED UNDER THE LAWS OF THE UNITED STATES OF
AMERICA OR OF ANY STATE OR POSSESSION THEREOF NOW OR HEREAFTER IN EFFECT.
Section 5.8 Waiver of Jury Trial.
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THE BORROWER AND THE LENDER HEREBY JOINTLY AND SEVERALLY WAIVE TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO WHICH THE BORROWER AND THE LENDER MAY BE
PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO THIS AGREEMENT. THIS WAIVER
CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH
ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO
THIS AGREEMENT.
This waiver is knowingly, willingly and voluntarily made by the Borrower
and the Lender, and the Borrower and the Lender hereby represent that no
representations of fact or opinion have been made by any individual to induce
this waiver of trial by jury or to in any way modify or nullify its effect. The
Borrower and the Lender further represent that they have been represented in the
signing of this Agreement and in the making of this waiver by independent legal
counsel, selected of their own free will, and that they have had the opportunity
to discuss this waiver with counsel.
Section 5.9. Waiver of Lender Liability. The Borrower hereby knowingly
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and voluntarily, forever releases, acquits and discharges the Lender or any
past, present or future agent, attorney, legal representative, predecessor in
interest, affiliate, successor, assign, employee, director or officer of the
Lender (collectively, the "Lender Group") from and of any and all existing or
future claims that the Lender or any of Lender Group is in any way responsible
for the past, current or
future condition or deterioration of the business operations and/or financial
condition of the Borrower, and from and of any and all claims that the Lender or
any of the Lender Group breached any agreement to loan money or make other
financial accommodations available to the Borrower or to fund any operations of
the Borrower at any time. The Borrower further hereby knowingly and voluntarily
forever releases, acquits and discharges the Lender and the Lender Group, from
and of any and all other claims, damages, losses, actions, counterclaims, suits,
judgments, obligations, liabilities, defenses, affirmative defenses, setoffs,
and demands of any kind or nature whatsoever, in law or in equity, whether
presently known or unknown, which the Borrower may have had, now have, or which
they can, shall or may have for, upon, or by reason of any matter, course or
thing whatsoever relating to, arising out of, based upon, or in any manner
connected with, any transaction, event, circumstance, action, failure to act, or
occurrence of any sort or type, whether known or unknown, which occurred,
existed, was taken, permitted, begun, or otherwise related or connected to or
with, whether past, existing or hereafter occurring, any or all of the Loans,
this Agreement and/or any direct or indirect action or omission of the Lender
and/or any of the Lender Group, including, without limitation, the failure or
the refusal of the Lender to make any one or more Loans requested by the
Borrower. The Borrower further agrees that from and after the date hereof, it
will not assert to any person or entity that any deterioration of the business
operations or financial condition of the Borrower was caused by any breach or
wrongful act of the Lender or any of the Lender Group.
Section 5.10 No Third Party Beneficiaries. This Agreement is for the sole
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benefit of the parties hereto and nothing herein express or implied shall give
or be construed to give any person, other than the parties hereto, any legal or
equitable rights hereunder.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
LOCKHEED XXXXXX CORPORATION
By:_____________________(SEAL)
Xxxxx X. XxXxxxxx
Vice President and Treasurer
CALCOMP TECHNOLOGY, INC.
By:_____________________(SEAL)
Xxxx X. Xxxxxxx
Chief Executive Officer
