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Note and Security Agreement [LOGO OF MELLON BANK APPEARS HERE]
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$ 4,000,000.00 May 24th, 1996
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For value received, and intending to be legally bound, Undersigned, as defined
below, promises to pay to Mellon Bank, N.A.
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("Bank") or its order at 0000 Xxxxxx Xxxxxx,
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Xxxxxxxxxxxx, XX
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the sum of Four Million and --------------------------------------------
----------------------------------------------------- 00/100 Dollars
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($ 4,000,000.00 ), or such lesser or greater
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principal amounts as may be outstanding from time to time under Revolving Line
of Credit Agreement dated May 24th, 1996 (as amended and supplemented from
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time to time, the "Credit Agreement"), between Bank and Undersigned, with
interest on the outstanding balance from the date of this Note and Security
Agreement ("Note") at the rate(s) ("Contractual Rate(s)") specified herein.
See Supplement to Note and Security Agreement.
After maturity, whether by acceleration or otherwise, interest shall accrue at
a rate 2 percent per annum above the Contractual Rate(s) specified until all
sums due hereunder are paid. Interest shall continue to accrue after the entry
of judgment by confession or otherwise at a rate of 2 percent (2%) per annum
above the Contractual Rate(s) until all sums due hereunder and/or under the
judgment are paid, unless the Contractual Rate(s) is (are) altered by
subsequent maturity. Undersigned agrees to pay to Bank, as consideration for
Bank's commitment under the Credit Agreement, (i) a commitment fee equal to
0.125 % per annum on the unborrowed Commitment Amount
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(as defined in the Credit Agreement), from time to time, for each day of the
Commitment Period (as defined in the Credit Agreement), and (ii) a facility
fee equal to N/A % per annum on the Commitment Amount (whether borrowed or
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unborrowed) for each day of the Commitment Period, in each case payable for
the preceding period for which such fee has not been paid, (a) on the last day
of each ______________________, __________________________, and
_______________ after the date hereof, (b) on the date of each reduction of
the Commitment Amount on the amount so reduced, and (c) on the last day of the
Commitment Period.
If any law, regulation, order, decree or guideline or interpretation or
application thereof by any governmental authority charged with the
interpretation or administration thereof or compliance by Bank with any
request or directive of any governmental authority (whether or not having the
force of law) shall either impose, modify or deem applicable any capital
adequacy or similar requirement against assets (funded or contingent) of, or
credits or commitments to extend credit extended by Bank and the result of any
of the foregoing is to increase the cost to, reduce the income receivable by,
or impose any expense (including loss of margin) upon Bank with respect to the
Credit Agreement, this Note, or the making, maintenance or funding of any part
of the Loans (or, in the case of capital adequacy or similar requirement, to
have the effect of reducing the rate of return on Bank's capital, taking into
account Bank's policies with regard to capital adequacy) by an amount which
Bank deems to be material, Bank shall from time to time notify Undersigned of
the amount determined in good faith by Bank (which determination shall be
conclusive absent manifest error) to be necessary to compensate Bank for such
increase, reduction or imposition. Such amount shall be due and payable by
Undersigned to Bank ten (10) business days after such notice is given.
So long as Bank is the holder hereof, Bank's books and records shall be
presumed, except in the case of manifest error, to accurately evidence at all
times all amounts outstanding under this Note and the date and amount of each
advance and payment made pursuant hereto.
The prompt and faithful performance of all of Undersigned's obligations
hereunder, including without limitation time of payment, is of the essence of
this Note.
Certain terms used in this Note are defined in Section 9 below.
1. Security Interest. Undersigned hereby grants to Bank a security interest in
the following property now owned or hereafter acquired by Undersigned:
[XX]_________________ (a) all equipment, wherever located, including
machinery, motor vehicles, furniture and fixtures;
[XX]_________________ (b) all inventory (whether held for sale or lease or to
be furnished under contracts of service), raw materials, work in process, and
materials used or consumed in the conduct of Undersigned's business, and all
books, records, invoices and other documents which describe or evidence the
same;
[__]_________________ (c) all farm products;
[XX]_________________ (d) all accounts, contract rights, general intangibles,
choses in action, instrument, chattel paper, documents (including all
documents of title and warehouse receipts) and all rights to the payment of
money, however evidenced or arising;
[__]_________________ (e) the securities described below, together with all
cash, stock or other dividends or distributions paid upon or made in respect
of such securities in any form; all securities received in addition to or in
exchange for such securities; and all subscription rights incident to such
securities; and
[__]_________________ (f) Other;
(g) In addition to the foregoing, Undersigned (1) grants to Bank a security
interest in all accessions, parts, accessories, attachments and appurtenances in
any way used with, attached or related to, or installed in, any equipment or
inventory constituting "Collateral" hereunder; (2) grants to Bank a security
interest in all substitutions for, renewals of, improvements, replacements and
additions to, and the products and proceeds (cash and non-cash) of all property
constituting "Collateral" hereunder and any insurance policies relating thereto;
(3) grants to Bank a security interest in, lien upon, and right of setoff
against, all deposit accounts, credits, securities, moneys or other property of
Undersigned which may at any time be in the possession of, delivered to, or owed
by Bank, including any proceeds or returned or unearned premiums of insurance,
and the proceeds (cash and non-cash) of all the foregoing property; and (4)
assigns to Bank all moneys which may become payable on any policy of insurance
required to be maintained under this Note, including any returned or unearned
premiums.
All such property subject to Bank's security interests described in this Section
1 is referred to herein collectively as the "Collateral". With respect to
Section 4 hereunder, the term "Collateral" shall not include the property
described in subsections (g)(3) and (g)(4) of this Section 1.
All security interests in Collateral shall be deemed to arise and be perfected
under and governed by the Uniform Commercial Code, except to the extent that
such law does not apply to certain types of transactions or Collateral, in which
case applicable law shall govern.
2. Obligations Secured. The Collateral shall secure the following obligations
("Obligations") of Undersigned to Bank: (a) all amounts at any time owing or
payable under this Note; (b) all costs and expenses incurred by Bank in the
collection or enforcement of this Note or the protection of the Collateral; (c)
all future advances made by Bank for taxes, levies, insurance, and repairs to or
maintenance of the Collateral; and (d) any other indebtedness, liability or
obligation of Undersigned to Bank, past, present, or future, direct or indirect,
absolute or contingent, individual, joint or several, now due or to become due,
whether as drawer, maker, endorser, guarantor, surety or otherwise, except that
none of the security interests created herein shall secure any obligation
incurred by Undersigned which is defined as "consumer credit" by Federal Reserve
Board Regulation Z, 12 C.F.R. (S)226.1 et seq., and is not exempted from the
application of that Regulation.
3. Representations. Undersigned hereby makes the following representations and
warranties which shall be true and correct on the date of this Note and shall
continue to be true and correct at the time of the creation of any Obligation
secured hereby and until the Obligations secured hereby shall have been paid in
full: (a) Undersigned's residence and/or Chief Executive Office, as the case may
be, is as stated below or as otherwise stated in a subsequent written notice
delivered to Bank pursuant to the terms hereof; (b) Undersigned has good and
marketable title to the Collateral subject to no security interest, lien or
encumbrance, except as indicated to the contrary to Bank in writing prior to the
execution of this Note; and (c) if any of the Undersigned is an individual, each
such individual is at least 18 years of age and under no legal disability or
incapacity.
4. Covenants. Undersigned covenants and agrees that until the Obligations
secured hereunder have been paid in full, Undersigned shall: (a) use the
proceeds of the Loans evidenced hereby only for the purpose(s) specified to the
Bank at or prior to the execution hereof; (b) not permit use of the Collateral
for any illegal purposes; (c) promptly notify Bank in writing of any change in
its or their residence or Chief Executive Office; (d) not permit removal of any
of the Collateral from county to county or state to state unless Bank has given
written consent in advance and except for inventory shipped to customer
locations for evaluation purposes in the ordinary course of business; (e)
maintain at all times good and marketable title to all Collateral, free and
clear of any security interest, lien or encumbrance (except as to which Bank may
grant its prior written consent pursuant to section 4(f) below), and defend such
title against the claims and demands of all persons; (f) not (1) affix the
Collateral or permit the Collateral to be affixed to real estate or to any other
goods, (2) lease, mortgage, pledge or encumber the Collateral, (3) permit the
Collateral's identity to be lost, (4) permit the Collateral to be levied upon or
attached under any legal process, (5) permit or cause any security interest or
lien to arise with respect to the Collateral (other than those created in this
Note), or (6) except Collateral customarily sold by Undersigned in the ordinary
course of business and so sold in such manner for full value, sell, consign,
part with possession of, or otherwise dispose of the Collateral or any rights
therein, except as Bank may grant its prior specific written consent with
respect to acts or events specified in subsections (1), (2), (5) or (6) hereof;
(g) maintain the Collateral in good condition and repair, excepting only
reasonable wear and tear; pay and discharge all taxes and other levies on the
Collateral, as well as the costs of repair and maintenance thereof; and furnish
to Bank upon request documentary proof of payment of such taxes, levies and
costs; (h); (i) purchase and maintain policies of insurance (including flood
insurance) to protect the Collateral or other property against such risks and
casualties, and in such amounts, as shall be required by Bank and/or applicable
law, which policies shall (1) be in form and substance satisfactory to Bank, (2)
designate Bank as loss payee and, at Bank's option, as additional insured, and
(3) be (or certificates evidencing same shall be) deposited with Bank; (j)
provide, upon request, financial or other information, documentation or
certifications to Bank (including balance sheets and income statements), all in
form and content satisfactory to Bank; (k) execute, upon demand by Bank, any
financing statements or other documents which Bank may deem necessary to perfect
or maintain perfection of the security interest(s) created in this Note and pay
all costs and fees pertaining to the filing of any financing, continuation or
termination statements with regard to such security interests; (l) procure, and
cause a statement of Bank's security interest to be noted on, any certificate of
title issued or required by law to be issued with respect to any motor vehicle
constituting part of the Collateral, and cause any such certificate to be
delivered to Bank within 10 days from the later of the date of this Note or the
date of the issuance of such certificate; (m) pay, upon demand, all amounts
incurred by Bank in connection with any action or proceeding taken or commenced
by Bank to enforce or collect this Note or protect, insure or realize upon the
Collateral, including attorney's fees equal to the lesser of (a) 20% of the
above sum and interest then due hereunder, or $500.00, whichever is greater, or
(b) the maximum amount permitted by law, and attorney's costs and all costs of
legal proceedings; and (n) immediately notify Bank if any of Undersigned's
accounts arise out of contracts with the United States or any department, agency
or instrumentality thereof, and execute any instruments and take any steps
required by Bank in order that all moneys due and to become due under any such
contracts shall be assigned to Bank and notice thereof given to the United
States under the Federal Assignment of Claims Act.
5. Events of Default. The occurrence of any of the following shall constitute
an "Event of Default" hereunder: (a) default in payment or performance of any of
the Obligations evidenced or secured by this Note or any other evidence of
liability of Undersigned to Bank which remains uncured for longer than 10 days;
(b) the breach by any Obligor (defined as Undersigned and each surety or
guarantor of any of Undersigned's liabilities to Bank, as well as any person or
entity granting Bank a security interest in property to secure the Obligations
evidenced hereby) of any covenant contained in the Credit Agreement, this Note,
or in any separate security, guarantee or suretyship agreement between Bank and
any Obligor, the occurrence of any default hereunder or under the terms of any
such agreement, or the discovery by Bank of any false or misleading
representation made by any Obligor herein or in any such agreement or in any
other information submitted to Bank by any Obligor; (c) with respect to any
Obligor: (1) death or incapacity of any individual or general partner; or (2)
dissolution of any partnership or corporation; (d) any assignment for the
benefit of creditors by any Obligor; (e) insolvency of any Obligor; (f) the
filing or commencement of any petition, action, case or proceeding, voluntary or
involuntary, under any state or federal law regarding dissolution, including the
Bankruptcy Reform Act of 1978, as amended, by or against any Obligor; (g)
default under the terms of any lease of or mortgage on the premises where any
Collateral is located which remains uncured for longer than 10 days; (h)
garnishment, attachment or taking by governmental authority of any Collateral or
other property of the Undersigned which is in Bank's possession;
or (j) the maturity of any life insurance policy held as collateral under this
Note by reason of the death of the insured or otherwise.
6. Acceleration; Remedies. Upon the occurrence of any Event of Default: (a) all
amounts due under this Note, including the unpaid balance of principal and
interest hereof, shall become immediately due and payable at the option of Bank,
without any demand or notice whatsoever; (b) Undersigned shall, upon demand by
Bank, assemble the Collateral and promptly make it available to Bank at any
place designated by Bank which is reasonably convenient to both parties; (c)
Bank may immediately and without demand exercise any of its rights and remedies
granted herein, under applicable law or which it may otherwise have, against the
Undersigned, the Collateral, or otherwise; and (d) Bank may, without notice or
process of any sort, peaceably enter any premises where any vehicle constituting
a part of the Collateral is located and take possession, retain and dispose of
such vehicle and all property located in or upon it. Bank shall have no
obligation to return any property not constituting Collateral found in any such
vehicle unless Bank actually receives Undersigned's written request
therefor specifically describing such property within 72 hours after
repossession thereof. Notwithstanding any provision to the contrary contained
herein, upon the occurrence of an Event of Default as described in Section 5(f)
hereof, all amounts due under this Note shall become immediately due and
payable, without any demand, notice, or further action by Bank whatsoever, and
demand, notice, or further action by Bank whatsoever, and an action therefor
shall immediately accrue.
7. Bank's Rights. Undersigned hereby authorizes Bank, and Bank shall have the
continuing right, at its sole option and discretion, to: (a) do anything which
Undersigned is required but fails to do hereunder, and in particular Bank may,
if Undersigned fails to do so, (1) insure or take any reasonable steps to
protect the Collateral, (2) pay all taxes, levies, expenses and costs arising
with respect to the Collateral, or (3) pay any premiums payable on any policy of
insurance required to be obtained or maintained hereunder, and add any amounts
paid under this Section 7(a) to the principal amount of the indebtedness secured
by this Note; (b) direct any insurer to make payment of any insurance proceeds,
including any returned or unearned premiums, directly to Bank, and apply such
moneys to any Obligations or other amounts evidenced or secured hereby in such
order or fashion as Bank may elect; (c) inspect the Collateral at any reasonable
time; (d) pay any amounts Bank elects to pay or advance hereunder on account of
insurance, taxes, or other costs, fees or charges arising in connection with the
Collateral, either directly to the payee of such cost, fee or charge, directly
to Undersigned, or to such payee(s) and Undersigned jointly; and (e) pay the
proceeds of the Loans evidenced by this Note to any or all of the Undersigned
individually or jointly, or to such other persons as any of the Undersigned may
direct.
In addition to all rights given to Bank by this Note, Bank shall have all the
rights and remedies of a secured party under any applicable law, including
without limitation, the Uniform Commercial Code.
8. Miscellaneous Provisions. (a) Undersigned waives protest of all commercial
paper at any time held by Bank on which Undersigned is in any way liable, notice
of nonpayment at maturity of any and all accounts, and (except where requested
hereby) notice of action taken by Bank; and hereby ratifies and confirms
whatever Bank may do. Bank shall be entitled to exercise any right
notwithstanding any prior exercise, failure to exercise or delay in exercising
any such right. (b) Bank shall retain the lien of any judgment entered on
account of the indebtedness evidenced hereby, as well as any security interest
previously granted to secure repayment of the indebtedness evidenced hereby, and
Undersigned warrants that Undersigned has no defense whatsoever to any action or
proceeding that may be brought to enforce or realize on such judgment or
security interest. (c) If any provision hereof shall for any reason be held
invalid or unenforceable, no other provision shall be affected thereby, and this
Note shall be construed as if the invalid or unenforceable provision had never
been a part of it. The descriptive headings of this Note are for convenience
only and shall not in any way affect the meaning or construction of any
provision hereof. (d) The rights and privileges of Bank contained in this Note
shall inure to the benefit of its successors and assigns, and the duties of
Undersigned shall bind all heirs, personal representatives, successors and
assigns. (e) This Note shall in all respects be governed by the laws of the
state in which this Note is payable (except to the extent that federal law
governs), and all references to the Uniform Commercial Code shall be deemed to
refer to the Uniform Commercial Code as enacted in such state. (f) Undersigned
hereby irrevocably appoints Bank and each holder hereof as Undersigned's
attorney-in-fact to: (1) endorse Undersigned's name to any draft or check which
may be payable to Undersigned in order to collect the proceeds of any insurance
or any returned or unearned premiums in respect of any policies of insurance
required to be maintained hereunder; and (2) take any action Bank deems
necessary to perfect or maintain perfection of any security interest granted to
Bank herein, including executing any document on Undersigned's behalf. (g)
Undersigned shall bear the risk of loss of, damage to, or destruction of the
Collateral, and Undersigned hereby releases Bank from all claims for loss or
damage to the Collateral caused by any act or omission on the part of Bank,
except for willful misconduct. (h) Copies or reproductions of this document or
of any financing statement may be filed as a financing statement.
9. Definitions. As used herein: (a) "account", "chattel paper", "contract
right", "document", "instrument", and "inventory" have the same respective
meanings given to those terms in the Uniform Commercial Code; (b) "general
intangibles" has the meaning given to that term in the Uniform Commercial Code,
including without limitation, customer lists, books and records (including
without limitation, all correspondence, files, tapes, cards, book entries,
computer runs, computer programs and other paper and documents, whether in the
possession or control of Undersigned or any computer service bureau), rights in
franchises and sales contracts, patents, copyrights, trademarks, logos,
goodwill, trade names, label designs, royalties, brand names, plans, blueprints,
inventions, patterns, trade secrets, licenses, jigs, dies, molds, and formulas;
(c) "Chief Executive Office" means the place from which the main part of the
business operations of an entity is managed; and (d) "Undersigned" refers
individually and collectively to all makers of this Note, including, in the case
of any partnership, all general partners of such partnership, individually and
collectively, whether or not such partners sign below. Undersigned shall each be
jointly and severally bound by the terms hereof, and, with respect to any
partnership executing this Note, each general partner shall be bound hereby both
in such general partner's individual and partnership capacities.
Capitalized terms not defined in this Note shall have the same meanings set
forth in the Credit Agreement.
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Signatures
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Witness the due execution hereof.
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Witness: Individual:
x x (Seal)
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Witness: Address
x
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Individual:
x (Seal)
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Address
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Corporation or Other Entity
RF POWER PRODUCTS, INC.
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Attest/Witness: By: (Signature and Title) Xxxxxxx Xxxxxx, CFO
X /s/ [SIGNATURE APPEARS HERE] /s/ Xxxxxxx Xxxxxx - VP & CFO (Seal)
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(Corporate Seal) By: (Signature and Title)
x (Seal)
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Business Address
000 Xxxxxxxxx-Xxxxxxx Xxxx
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Xxxxxxxx, XX 00000
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Supplement to Security Agreement [LOGO OF MELLON PSFS APPEARS HERE]
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Accounts Receivable and Inventory
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This Supplement to Security Agreement supplements a Note and Security
Agreement or Security Agreement, dated May 24, 1996 ("Agreement"), executed by
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Undersigned to and for the benefit of Mellon Bank, N.A. ("Bank"). Undersigned,
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intending to be legally bound, hereby agrees as follows:
1. Reaffirmation. Undersigned hereby reaffirms all security interests granted
heretofore or simultaneously herewith by the Undersigned's inventory and rights
to the payment of money, including, but not limited to, accounts, contract
rights, chattel paper and general intangibles as set forth in the Agreement,
together with the proceeds of the foregoing. All terms used herein shall have
the same respective meanings given to such terms in the Agreement. Any reference
in this Supplement to any "account" shall be deemed to refer to any right to the
payment of money, including any contract right or general intangible.
2. Additional Representations. In addition to the representations and warranties
set forth in the Agreement, Undersigned hereby makes the following
representations and warranties which shall be true and correct on the date of
this Supplement and shall continue to be true and correct at the time of any
borrowing under any line of credit with Bank and until the Obligations secured
by the Agreement shall have been paid in full: (a) each account: (1) represents
an amount actually owing to the Undersigned by the account debtor (less
discounts allowed for prompt payment), (2) is valid and enforceable according to
its terms without further performance of any kind; (3) is not evidenced by any
instrument or chattel paper unless the original of such instrument or chattel
paper has been deposited with Bank; and (4) is not evidenced by any judgment
unless such judgement has been assigned of record to Bank; and (b) the locations
of all of Undersigned's places of business are as stated below, and the
inventory and records of the accounts are kept at the places indicated below.
3. Additional Covenants. In addition to the covenants set forth in the
Agreement, Undersigned covenants and agrees that until the Obligations secured
by the Agreement have been paid in full Undersigned shall: (a) immediately
notify the Bank in writing in the event that any of the following occurs: (1)
except in the ordinary course of business any account is or becomes entitled or
eligible for discount for prompt payment except in the ordinary course of
business; (2) any account debtor has or may have any defense to payment of, or
right of setoff, counterclaim, or recoupment against any account; (3) any
account represents an amount which is disputed by the account debtor or the
payment of which is in any way contingent or conditional; or (4) the
desirability, usefulness, or marketability of any of the inventory has been in
any way materially reduced or materially impaired by reason of physical
deterioration, technical, obsolescence, or otherwise; (b) keep accurate and
complete books and records in accordance with generally accepted accounting
principles and, at Undersigned's expense, promptly furnish Bank such information
and documents relating to the Collateral at such times and in such form and
detail as Bank may request, including without limitation: (1) copies of invoices
or other evidence of Undersigned's accounts and schedules showing the aging,
identification, reconciliation, and collection thereof; (2) evidence of shipment
and receipt of goods and the performance of services or obligations covered by
accounts; and (3) reports as to Undersigned's inventory and purchases, sales,
damage, or loss thereof; all of the foregoing to be certified by authorized
officers or other employees or Undersigned; (c) not change any location listed
below regarding places of business, inventory and records of accounts without
Bank's prior written consent; (d) at Undersigned's expense, diligently collect
the accounts on behalf of Bank until such time as Bank exercises its right to
directly collect the accounts, and upon notice from Bank, deliver all proceeds
of accounts to Bank forthwith upon receipt, in the original form in which
received; (e) immediately upon Bank's request, open a cash collateral account
("Cash Collateral Account") at Bank and deposit therein all cash proceeds of
collections on the accounts; (f) immediately upon Bank's request, give the Bank
assignments, in form acceptable to Bank, of specific accounts or groups of
accounts and specific general intangibles, and immediately repay the amount
loaned against any account so assigned to the Bank if the contract with the
account debtor is breached, cancelled or terminated; (g) immediately upon Bank's
request, furnish Bank with all information received by Undersigned regarding the
financial condition of any account debtor, except to the extent prohibited by
law; (h) immediately deliver to Bank all instruments, documents or chattel paper
representing any of the Collateral and immediately assign of record to Bank any
judgement representing any account constituting Collateral; and (i) immediately
upon Bank's request, xxxx its records evidencing its accounts in a manner
satisfactory to Bank so as to show which accounts have been assigned to Bank.
4. Additional Rights of Bank. In addition to Bank's rights set forth in the
Agreement, Undersigned hereby authorizes Bank, and Bank shall have the
continuing rights at any time, whether or not any default has occurred under the
Agreement, and at its sole option and discretion, without notice, to: (a) take
over and collect any or all of the accounts and to take any other action
pursuant to its power of attorney granted herein; (b) exercise absolute and
exclusive dominion and control over all funds deposited in the Cash Collateral
account; apply any funds therein against any Obligations; any charge to any
deposit account of Undersigned any item of payment credited to the Cash
Collateral account which is subsequently dishonored; (c) at any reasonable time,
through its authorized agents and employees, inspect, audit, and verify the
accounts and the inventory, review Undersigned's books and records, and copy or
make excerpts from any document; and (d) verify accounts with debtors in the
name of Undersigned, Bank, or Bank's designee.
5. Additional Power of Attorney. In addition to the powers of attorney granted
to Bank by Undersigned in the Agreement, Undersigned hereby appoints Bank and
its officers, employees and agents as its irrevocable, true and lawful attorneys
in fact with all necessary power and authority to: (a) endorse Undersigned's
name on all media of payment delivered to Bank or deposited in the Cash
Collateral account; (b) notify Undersigned's account debtors of the assignment
of their debts and direct them to make all payments thereon to Bank; (c) in
Bank's name or in the name of Undersigned demand, xxx for, collect, compromise,
settle, and give releases from any account; and (d) take such other action as
Bank may deem appropriate for any such purpose.
In exercising its rights under this section, Bank shall have no liability to
Undersigned except for willful misconduct.
Page 1 of 2
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6. Integration. The provision of this Supplement shall, as of the date
hereof, be deemed to be fully incorporated by reference in, constitute a part
of, and supplement the provisions of, the Agreement, which, except as
supplemented hereby, shall continue in full force and effect in accordance
with its terms and conditions.
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Signatures
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Witness the due execution hereof this 24th day of May, 1996
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Witness: Individual:
X X (Seal)
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Address
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Witness: Individual:
X X (Seal)
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Address
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Corporation or Other Entity
RF POWER PRODUCTS, INC.
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Attest/Witness By: (Signature and Title)
Xxxxxxx Xxxxxx, CFO
X [SIGNATURE APPEARS HERE] X /s/ Xxxxxxx Xxxxxx VP & CFO (Seal)
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By: (Signature and Title)
X (Seal)
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(Corporate Seal) Business Address
000 Xxxxxxxxx-Xxxxxxx Xxxx
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Xxxxxxxx, XX 00000
Location of Inventory: Location of records concerning the
accounts:
Voorhees, NJ Voorhees, NJ
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Austin, TX Austin, TX
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San Jose, CA San Jose, CA
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Page 2 of 2
SUPPLEMENT TO NOTE AND SECURITY AGREEMENT
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This Supplement to Note and Security Agreement ("Supplement") is annexed
to and is part of the Note and Security Agreement dated as of May 24th, 1996 of
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Undersigned, payable to Mellon Bank, N.A, ("Bank"), in the stated principal
amount of $4,000,000.00 ("Facility"). Such Note and Security Agreement as
supplemented by this Supplement shall be referred to as the Note. Capitalized
terms used without further definition herein shall have the meaning set forth in
the Note.
1. Use of Borrowings. Advances of principal under this Note shall be
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used by Undersigned to repay existing loans, fund working capital and purchase
equipment.
2. Payment. Interest shall be payable at each of the following times:
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(a) if at the Prime-Based Rate, on the first day of each month beginning June
1, 1996; (b) if at the LIBOR Rate at the end of each LIBOR Rate Period specified
in each Notification; and (c) upon the Maturity Date. Undersigned understands
and agrees that any payments of principal, interest or other sums required under
this Note may be deducted on the due date, without notice by Bank, from any
deposit account maintained by Undersigned with Bank.
3. Alternative Principal Amortization. So long as no default or Event
----------------------------------
of Default shall be in existence under the Note, Undersigned shall have the
option of reducing the principal amount of Borrowings used for the purchase of
equipment by electing to amortize such Borrowings, provided however that,
---------------------
(i) the principal amount to be amortized (the "Term Loan(s)") shall not exceed
$2,000,000 and (ii) the aggregate principal amount of the Term Loan(s) plus any
other principal amounts outstanding under this Note shall not exceed the
Commitment Amount stated in the Credit Agreement. The Term Loans(s) shall be
subject to the same terms provided for in that certain Note and Security
Agreement dated May 24th, 1996 from the Borrower to Bank in the principal amount
----
of $1,400,000, including without limitation, the following payment terms:
Payment-Principal. Principal shall be payable in
-----------------
forty-eight (48) equal consecutive monthly installments
of an amount as would be obtained by dividing the
principal outstanding as of the date the Borrower elects
to create the Term Loan (s) (the "Election Date") by the
forty-eight (48) required principal installments. The
initial principal installment will be due and payable
on the first day of the first month after the election
date and thereafter on the first day of each month through
the Term Loan(s) maturity date, the date four (4) years after
the Election Date.
[LOGO]
4. Interest Rate Options. (a) The outstanding principal balance of
---------------------
this Note shall earn interest at the Prime-Based Rate, provided however that,
--------------------
subject to the terms of paragraph 4(b) below, by giving Notification,
Undersigned may request to have all or such portion of the outstanding principal
of this Note as hereinafter permitted earn interest, instead, or at the LIBOR
Rate as follows: (i) with respect to the principal amount outstanding under the
Facility, from the date of a Notification until the end of the LIBOR Rate Period
specified in the Notification; and/or (ii) with respect to the principal amount
of any portion of the Facility outstanding and earning interest at the LIBOR
Rate at the time of the Notification related to such principal amount, from the
expiration of the then current LIBOR Rate Period related to such principal
amount until the end of the or LIBOR Rate Period specified in the Notification;
and/or (iii) with respect to all or any portion of the principal amount of the
Facility outstanding and earning interest at the Prime-Based Rate at the time of
Notification, from the date set forth in the Notification until the end of the
LIBOR Rate Period specified in the Notification. All advances of principal
amounts accruing interest at the LIBOR Rate or the shall be made in minimum
increments of $100,000.00 provided however that, there shall be no more
---------------------
than five (5) advances of principal accruing interest at the LIBOR Rate at any
one time.
(b) Undersigned understands and agrees: (i) that Bank, in its sole
discretion from time to time and without notice, may refuse any request of
Undersigned to select, convert to or renew the LIBOR Rate, if Bank determines in
good faith (which determination shall be conclusive) that the Undersigned is in
default under the Note or that such interest rate is impractical or unlawful due
to any law, regulation, rule, guideline or interpretation or administration to
which Bank may be subject, (ii) that subject to the provisions of this Note, the
Prime-Based Rate and the LIBOR Rate may apply simultaneously to the different
parts of the outstanding principal of this Note, (iii) that the LIBOR Rate may
apply simultaneously to various portions of the outstanding principal for
various LIBOR Rate periods, (iv) that the LIBOR Rate applicable to any portion
of outstanding principal may be different from the LIBOR Rate applicable to any
other portion of outstanding principal and (v) that the Bank shall have the
right to terminate any LIBOR Rate Periods, and the interest rate applicable
thereto, prior to maturity of such Rate Period, if Bank determines in good faith
(which determination shall be conclusive) that continuance of such interest rate
has been made impractical or unlawful by any law, regulation, rule, guideline or
interpretation or administration to which Bank may be subject, in which event
the principal to which such terminated Rate Period relates thereafter shall earn
interest at the Prime-Based Rate.
5. Interest Rate Spread. The Undersigned's shall pay a basis point
--------------------
spread under this Note on the LIBOR Rate option based on the Undersigned's
financial performance based on its Cash Flow
-2-
Ratio (as defined in the Credit Agreement) and effective on the first day
following receipt of the Undersigned's quarterly financial statements until
receipt of the Undersigned's quarterly financial statements for the following
fiscal quarter:
LIBOR Rate Plus
Cash Flow Ratio Basis Point Spread
--------------- ------------------
Less than 2.50 to 1.00 LIBOR + 125 b.p.
Greater than or equal to 2.50 to
1.00, but less than 3.50 to 1.00 LIBOR + 100 b.p.
Greater than or equal to 3.50 to 1.00 LIBOR + 75 b.p.
6. Prime-Based Rate Fallback. After expiration of any LIBOR Rate
-------------------------
Period, any principal portion corresponding to such Rate Period which has not
been converted or renewed in accordance with paragraph 4(a) hereof shall earn
interest automatically at the Prime-Based Rate from the date of expiration of
such Rate Period until paid in full, unless and until Undersigned requests and
Bank approves a conversion to the LIBOR Rate in accordance with paragraph 4(a).
With respect to any principal amount, if Undersigned fails to request the LIBOR
Rate option by giving Bank a Notification, or if Bank fails to approve such
request when made, such principal amount shall be deemed to earn interest at the
Prime-Based Rate.
7. Voluntary Repayment. Prior to the occurrence of an Event of Default
-------------------
hereunder, (a) Undersigned shall have the right at its option from time to time
to prepay that portion of the outstanding principal balance hereof which is
earning interest at such time at the Prime-Based Rate in whole or in part
without any Repayment Premium; and (b) Undersigned shall have the right to
prepay all or any portion of the outstanding principal balance hereof which is
earning interest at the LIBOR Rate, provided however that, any prepayments of
---------------------
principal earning interest at the LIBOR Rate shall be accompanied by the
Repayment Premium applicable thereto.
8. Indemnity. Undersigned shall indemnify Bank against any loss or
---------
expense (including loss of margin) which Bank has sustained or incurred as a
consequence of: (a) any payment, prepayment or conversion of any principal
amount earning interest at the LIBOR Rate, on a day other than the last day of
the corresponding Rate Period (whether or not any such payment is made pursuant
to demand by Bank under this Note and whether or not any such payment consented
to by Bank, unless Bank shall have expressly waived such indemnity in writing);
(b) any attempt by Undersigned to revoke in whole or part any Notification given
pursuant to this Note; (c) any attempt by Undersigned to convert or renew any
principal amount earning interest at the LIBOR Rate, on a day other than the
last day of the corresponding applicable Rate Period (whether or not such
conversion or renewal is
-3-
consented to by Bank, unless Bank shall have expressly waived such indemnity in
writing); or (d) any Event of Default.
If Bank sustains any such loss or expense it shall from time to time
notify Undersigned of the amount determined in good faith by Bank (which
determination shall be conclusive) to be necessary to indemnify Bank for such
loss or expense. Such amount shall be due and payable by Undersigned on demand.
9. Events of Default. In addition to the Events of Default described in
-----------------
Section 5 of the Note, the occurrence of the following shall constitute an
Event of Default: (i) any failure by Undersigned to pay when due and payable
the principal of or interest on any debt in respect of which it is obligated to
make payment, or the maturity of such debt shall have been accelerated in
accordance with the provisions of any contract providing for the creation of or
concerning such debt, or any event shall have occurred or failed to occur and
be continuing that, with the giving of notice or the passage of time or both,
would permit any holder or holders of such debt, any trustee or agent acting on
behalf of such holder or holders or any other person so to accelerate such
maturity; (ii) entry of judgment in an amount in excess of $100,000 against any
Obligor in any court of record; and (iii) the assessment against any Obligor by
the Internal Revenue Service or any other federal, state or local taxing
authority of unpaid taxes, or the issuance of a levy or the entering of a lien
in connection therewith.
10. Records. The unpaid principal amount of this Note, the unpaid
-------
interest accrued thereon, the interest rate or rates applicable to such unpaid
principal amount, the duration of such applicability and the date and amount of
each payment or demand shall at all times be ascertained from the books and
records created by Bank, which shall be conclusive absent manifest error.
All notices (including any Notification) under this Note shall be in
writing or by telephone promptly confirmed in writing, and all such writings
shall be sent by first-class, first-class express or certified mail or by hand
delivery, in all cases with charges prepaid, provided that Bank may act in
reliance on any telephonic notice prior to receipt of written confirmation. All
notices shall be sent to Undersigned at the address stated on the signature page
hereof or in accordance with the last unrevoked written direction from
Undersigned to Bank. All notices by Undersigned shall be effective when
received by Bank at its address at Mellon Bank, N.A., Plymouth Meeting
Executive Campus, 000 X. Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxxxxx, XX
00000, Attention: Middle Market Banking, and all notices by Bank shall be
effective when telephoned, deposited in the mail or hand delivered. Written
notices or confirmations by Undersigned shall not be deemed records of Bank
within the meaning of this paragraph whether or not received by Bank and, in
the event that any written notice sent by Undersigned in confirmation of
telephonic notice
-4-
differs from Bank's records of such telephonic notice, Bank may act in
reliance upon such telephonic notice as if written notice were not
received, provided that Bank has acted in good faith. Bank may
conclusively rely without inquiry on any notice or confirmation
purporting to be from or authorized by Undersigned and such reliance
shall be presumed to be correct.
11. Time of Essence. The prompt and faithful performance of all
---------------
of Undersigned's obligations hereunder, including without limitation time
of payment, is of the essence of this Note.
12. Definitions. As used in this Supplement: "LIBOR Rate" means
----------- ----------
for any day during each LIBOR Rate Period the per annum rate of interest
(computed on a basis of a year of 360 days and actual days elapsed)
determined by Bank by adding (a) the per annum rate of interest (rounded
upward to the nearest 1/100 of 1%) obtained by dividing (i) the rate of
interest estimated in good faith by Bank in accordance with its usual procedures
(which determination shall be conclusive) to be the average of the rate per
annum for deposits, in an amount of U.S. Dollars comparable to the amount of
principal relating to such LIBOR Rate Period and having maturities comparable
to such LIBOR Rate Period, offered to major money center banks in the London
interbank market at or about 11:00 am., London time, two London Business Days
prior to such LIBOR Rate Period, (ii) a number equal to 1.00 minus the LIBOR
-----
Rate Reserve Percentage for such day; plus (b) the applicable basis point
----
spread. "LIBOR Rate Period" means for any portion of principal for which
-----------------
Undersigned elects the LIBOR Rate the period of time for which such rate shall
apply to such principal portion. LIBOR Rate Periods shall be for periods of
30, 60 or 90 days and for no other length of time; provided that no LIBOR Rate
Period may extend beyond the Maturity Date. "LIBOR Rate Reserve Percentage"
-----------------------------
for any day means the percentage (rounded upward to the nearest 1/100 of 1%),
as determined in good faith by Bank (which determination shall be conclusive)
as representing for such day the maximum effective percentage as prescribed by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirements (including, without limitation,
supplemental, marginal and emergency reserve requirements) for Bank with
respect to eurocurrency funding. "Maturity Date" means May 29,1998.
-------------
"Notification" means telephonic notice (which shall be irrevocable) by
-------------
Undersigned to Bank that Undersigned has requested that the LIBOR Rate shall
apply to some portion of the principal amount of this Note in accordance with
the provisions of paragraph 4 hereof, which notice shall be given no later than
1:00 p.m., local time at the place where this Note is payable, on the day which
is at least three (3) business days prior to the day (which shall be a day on
which Bank is opened for business) on which such election is to become
effective, which notice shall specify (i) that the LIBOR Rate option is
being selected; (ii) the principal amount to be subject to the LIBOR Rate;
(iii) whether such amount is a renewal of a previous request of the LIBOR Rate,
a conversion from the Prime Based Rate to the LIBOR Rate, or a combination
-5-
thereof; (iv) the Rate Period selected; and (v) the date on which such request
is to become effective (which date shall be a date selected in accordance with
paragraph 4(a) hereof. "Prime-Based Rate" means a per annum rate of interest,
----------------
calculated on an 360 day basis but charged on the actual number of days elapsed,
equal to the rate of interest announced from time to time by Bank as its Prime
Rate which rate is not necessarily the lowest interest rate charged by the Bank
for loans, such Prime-Based Rate to change from time to time as of the effective
date of each change in Prime Rate. "Repayment Premium" means the amount which
-----------------
Undersigned shall pay to Bank as a premium in connection with a repayment of
outstanding principal earning interest at the LIBOR Rate at the time of
repayment, which amount shall be the amount determined by Bank to be the
difference between (a) the present value of the interest payments that would
have been paid in the future to Bank by Undersigned on such repaid portion of
principal accruing at the LIBOR Rate but for such repayment, and (b) the present
value of the interest payments that would be paid in the future to Bank at the
United States Treasury Rate if on or about the date of repayment Bank made a
hypothetical investment of the repaid portion of principal accruing at a fixed
rate of interest in United States Treasury securities maturing on or about the
date that the repaid portion of principal would have matured but for such
repayment and bearing interest accruing from the date of repayment, payable on
each date on which Undersigned, but for such repayment, payable on each date on
which Undersigned, but for such repayment, would have paid interest on the
repaid portion of principal. "Undersigned" means, individually and collectively,
-----------
all makers of this Note. "United States Treasury Rate" means a rate of interest
---------------------------
per annum, equal to (rounded downward to the nearest 1/100 of one percent) the
annual yield Bank could obtain by purchasing on the date of repayment United
States Treasury Securities with semi-annual interest payments, maturing on or
about the date on which the repaid portion of principal would have matured.
WITNESS the due execution and delivery hereof, intending to be
legally bound.
ATTEST: RF POWER PRODUCTS, INC.
/s/ Xxxx X. Xxxx BY: /s/ Xxxxxxx X. Xxxxxx
-------------------------------- ---------------------------------
By: Xxxx X. Xxxx Xxxxxxx X. Xxxxxx
Title: Director Cost Acctg. Chief Financial Officer
MELLON BANK, N.A.
Accepted by:
/s/ Xxxxxxx X. XxXxxxx
------------------------------------
Xxxxxxx X. XxXxxxx
Vice President
-6-
LATE PAYMENT CHARGE ADDENDUM
SPECIFIED PERCENTAGE CHARGE
---------------------------
THIS ADDENDUM dated May 24th, 1996, to the Note and Security Agreement dated of
even date herewith (the "Note") RF Power Products, Inc. ("Undersigned") to
Mellon Bank, N.A. ("Bank"),
WHEREAS, Undersigned and Bank desire to incorporate the following provisions
into the Note.
NOW, THEREFORE, Undersigned, intending to be legally bound hereby, covenants and
agrees that the following shall be added to the Note and made a part thereof.
1. If any payment (including without limitation any regularly scheduled
payment, balloon payment and final payment) is not paid within 10 days
after it is due, Undersigned will pay a late charge equal to 4.0% of the
unpaid portion of the payment due. Such late charge shall be in addition to
any increase made to the interest rate(s) applicable to the outstanding
balance hereof as a result of maturity of this Note or otherwise, as well
as in addition to any other applicable fees, charges and costs. Also, Bank
reserves the right to modify, in its sole discretion and upon thirty (30)
days prior written notice to Undersigned, the late charge set forth herein.
2. Except as stated in this LATE PAYMENT CHARGE ADDENDUM, the terms,
covenants, conditions and provisions of the Note will remain in full force
and effect.
Witness the due execution hereof.
ATTEST: RF POWER PRODUCTS, INC.
/s/ APPEARS HERE By: /s/ Xxxxxxx X. Xxxxxx
------------------------------- --------------------------
By: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
Business Address:
000 Xxxxxxxxx-Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
MELLON BANK, N.A.
ENVIRONMENTAL RIDER
-------------------
THIS ENVIRONMENTAL RIDER dated May 24th, 1996, is a rider to a Note and
Security Agreement ($4,000,000.00) dated of even date herewith from RF POWER
PRODUCTS, INC. ("Undersigned") to MELLON BANK, N.A. ("Mellon");
WHEREAS, Undersigned and Bank desire to incorporate the following
provisions into the Agreement.
NOW, THEREFORE, Undersigned, intending to be legally bound hereby,
covenants and agrees that the following shall be added to the Agreement and made
a part thereof.
1. Additional Representations, Warranties and Convenants.
-----------------------------------------------------
In addition to the representations, warranties, and covenants set forth in
the Agreement, Undersigned hereby represents, warrants, covenants, and agrees,
on behalf of itself and each of its subsidiaries and affiliates, if any, that:
(a) Each of them now has and will continue to have all Environmental
Permits (as hereinafter defined) necessary for the conduct of each of their
businesses and operations;
(b) Each of them conducts and will continue to conduct each of their
businesses and operations in material compliance with all applicable
Environmental laws (as hereinafter defined) and Environmental Permits;
(c) There does not exist, nor will any of them permit to exist, any event
or condition that requires or is likely to require any of them under any
Environmental Law to pay or expend funds by way of fines, judgments, damages,
cleanup, remediation or the like in an aggregate amount, the payment of which
could reasonably be expected to interfere substantially with normal operations
of Undersigned or materially adversely affect the financial condition of
Undersigned;
(d) Undersigned shall notify the Bank, in writing within five (5) business
days, upon becoming aware of any pending or threatened proceeding, suit,
investigation, allegation or inquiry regarding any alleged event or condition
that, if resolved unfavorably to Undersigned or any of Undersigned's
subsidiaries or affiliates, is likely to cause Undersigned or any of its
subsidiaries or affiliates under any Environmental Law to pay or expend funds by
way of fines, penalties, administrative actions, judgments, damages, cleaning,
remediation or the like, or cause Undersigned or any of its subsidiaries or
affiliates to pay or expend funds for any third party claims, proceedings,
actions or judgments for personal injury or property damage resulting from an
event or condition relating to Hazardous Substances (as hereinafter defined) or
from a release or threatened release of Hazardous Substance; and
(e) Undersigned shall provide at Undersigned's costs, upon request by
Bank, certifications, documentation, copies of pleadings and other information
regarding the above, all in form and content satisfactory to Bank.
2. Definitions.
-----------
As used in this Rider:
(a) "Environmental Law" means any federal, state or local environmental
law, statute, regulation, rule, ordinance, court or administrative order or
decree, or private agreement or interpretation, now or hereafter in existence,
relating to the manufacture, distribution, labeling, use, handling, collection,
storage, treatment, disposal or otherwise of Hazardous Substances, or in any way
relating to pollution or protection of the environment or public health.
(b) "Environmental Permit" means any federal, state or local permit,
license or authorization issued under or in connection with any Environmental
Law.
(c) "Hazardous Substances" means petroleum and petroleum products,
radioactive materials, asbestos, radon, lead containing materials, sewage or any
materials or substances defined as or included in the definition of "hazardous
wastes," "hazardous substances," "hazardous materials," "toxic substances,"
"hazardous air pollutants," and "toxic pollutants," or "pollution" as those
terms are used in any Environmental Law.
Witness the due execution hereof.
Attest: RF POWER PRODUCTS, INC.
[SIGNATURE APPEARS HERE] By: /s/ Xxxxxxx Xxxxxx
------------------------------- -----------------------------------
Name: Xxxxxxx Xxxxxx
Chief Financial Officer
[CORPORATE SEAL APPEARS HERE]
Business Address:
000 Xxxxxxxxx-Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
-2-
FIRST AMENDMENT TO NOTE AND SECURITY AGREEMENT
----------------------------------------------
THIS FIRST AMENDMENT TO NOTE AND SECURITY AGREEMENT (this "Agreement")
made as of this 17th day of January, 1997 between RF POWER PRODUCTS, INC. a New
Jersey corporation (the "Borrower"), and MELLON BANK, N.A., a national banking
association (the "Bank").
W I T N E S S E T H:
WHEREAS, the Borrower is the maker of a certain Note and Security
Agreement to the Bank in the original principal amount of Four Million Dollars
($4,000,000.00) dated May 24th, 1996 (the "Note") (capitalized terms used herein
but not defined in this Agreement shall have the meaning ascribed to them in the
Note);
WHEREAS, the Borrower has requested that the Bank amend certain
provisions of the Note in order to, among other things, gain permission to
obtain equipment financing in the amount of $500,000; and
WHEREAS, the Bank is willing to grant such request, subject to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and in the Credit Amendment referred to below, and intending to be
legally bound, the Borrower and the Bank hereby covenant and agree as follows:
1. Amendments. Upon the satisfaction of any condition precedent
----------
contained in the First Amendment to Revolving Line of Credit Agreement dated as
of even date herewith (the "Credit Amendment") and the execution and delivery
of this Agreement by the Borrower and the Bank, the Note shall be amended as
follows:
(a) Section 3 of the Supplement to Note and Security Agreement (the
"Supplement"), Alternative Principal Amortization, shall be amended by adding
----------------------------------
the following sentence to the end of such Section:
The Borrower's option set forth in this Section 3 shall expire as
of May 31, 1997.
(b) The Note shall be amended to reflect that references in the Note to
the "Credit Agreement" shall be references to the Revolving Line of Credit
Agreement as amended by the Credit Amendment and as may be still further
amended, modified or supplemented from time to time.
2. Representations and Warranties. The Borrower hereby represents and
------------------------------
warrants to the Bank that the Borrower is not in default under the Note, the
Credit Agreement or any other document executed in connection therewith.
3. Other Terms Confirmed. All other terms and conditions of the
---------------------
Note, including, without limitation, the supplements annexed thereto and made a
part thereof, are hereby confirmed and shall remain in full force and effect
without modification. From and after the effectiveness of the amendments set
forth in Section 1 hereof, all references in any document or instrument to the
Note shall mean the Note as amended by this Agreement.
4. No New Indebtedness. The Borrower specifically acknowledges and
-------------------
agrees that this Agreement shall not represent in any way the extension of any
new credit by the Bank to the Borrower, or the satisfaction of any indebtedness
evidenced by the Credit Agreement or the Notes as amended hereby.
5. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
6. Headings. The descriptive headings which are used in this
--------
Agreement are for convenience only and shall not affect the meaning of any
provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first written above.
Attest: RF POWER PRODUCTS, INC.
/s/ [SIGNATURE APPEARS HERE] /s/ Xxxxxxx X. Xxxxxx
----------------------------- ---------------------------
Name: By: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
[Corporate Seal]
MELLON BANK, N.A.
By: /s/ Xxxxxxx X. XxXxxxx
------------------------
Xxxxxxx X. XxXxxxx
Vice President
-2-
