EXHIBIT 10.2
LOAN AGREEMENT
THIS LOAN AGREEMENT is made as of the _____ day of September, 2003 by
and between XXXXXXXX TECHNOLOGIES, INC., a Florida corporation, and SECURITY
TECHNOLOGY, INC., a Delaware corporation (collectively, the "Borrowers"), and
BAY VIEW CAPITAL L.L.C., a Rhode Island limited liability company ("Lender").
W I T N E S S E T H:
WHEREAS, Borrowers desire to obtain from Lender and Lender desires to
extend to Borrowers a loan in accordance with the terms set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and promises herein contained, the parties hereto agree as follows:
1. DEFINITIONS
When used herein, the terms set forth below shall be defined as
follows:
1.1 "Advance" shall mean each borrowing by Borrowers or either
of them pursuant to SECTION 3.1 hereof.
1.2 "Authorized Line Signer" individually and "Authorized Line
Signers" collectively shall mean ___________________________ and/or such other
persons as Borrowers shall designate in writing to Lender.
1.3 "Business Day" shall mean any day which is not a Saturday
or a Sunday and on which Lenders in the State of Rhode Island are not authorized
or required to close.
1.4 "Contract" shall mean that certain contract by and between
S&TR and __________________ dated as of ________________, as the same has
been and may hereafter be amended, restated and/or modified form time to time.
1.5 "Environmental Law" individually and "Environmental Laws"
collectively shall mean any and all applicable foreign, federal, state and local
environmental, health or safety statutes, laws, regulations, rules, ordinances,
policies and rules or common law (whether now existing or hereafter enacted or
promulgated), of all governmental agencies, bureaus or departments which may now
or hereafter have jurisdiction over Borrowers and all applicable judicial and
administrative and regulatory decrees, judgments and orders, including common
law rulings and determinations, relating to injury to, or the protection of,
real or personal property or human health or the environment, including, without
limitation, all requirements pertaining to reporting, licensing, permitting,
investigation, remediation and removal of emissions, discharges, releases or
threatened releases of Hazardous Materials (as hereinafter defined), chemical
substances, pollutants or contaminants whether solid, liquid or gaseous in
nature, into the environment or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of such
Hazardous Materials, chemical substances, pollutants or contaminants.
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1.6 "Event of Default" shall mean each and every event
specified in SECTION 8.1 hereof.
1.7 "Hazardous Materials" shall mean any substance (i) the
presence of which requires or may hereafter require notification, investigation
or remediation under any Environmental Law; (ii) which is or becomes defined as
a "hazardous waste", "hazardous material" or "hazardous substance" or
"controlled industrial waste" or "pollutant" or "contaminant" under any present
or future Environmental Law or amendments thereto including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. ss. 9601, ET SEQ.) and any applicable local statutes and the regulations
promulgated thereunder; (iii) which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and is
or becomes regulated by any governmental authority, agency, department,
commission, board, agency or instrumentality of any foreign country, the United
States, any state of the United States, or any political subdivision thereof to
the extent any of the foregoing has or had jurisdiction over Borrowers; or (iv)
without limitation, which contains gasoline, diesel fuel or other petroleum
products, asbestos or polychlorinated biphenyls.
1.8 "Indemnified Parties" shall mean Lender, Lender's parent,
subsidiaries and affiliates, each of their respective shareholders, directors,
officers, employees and agents, and the successors and assigns of any of them.
1.9 "Inventory" shall mean all raw materials used or consumed
in Borrowers' business plus all work in process and finished goods inventory.
1.10 "Loan" shall mean the loan extended to the Borrowers in
the maximum principal amount of One Million Four Hundred Thousand and 00/100
($1,400,000.00) Dollars pursuant to this Loan Agreement.
1.11 "Loan and Security Documents" shall mean those documents
referred to in SECTION 4.1.1 hereof, as each of the same may be amended and/or
restated from time to time, and any and all other documents now or hereafter
executed in connection with the Loan.
1.12 "Maturity Date" shall mean September __, 2005.
1.13 "Note" shall mean the promissory note of even date
herewith in substantially the form attached hereto and made a part hereof as
EXHIBIT A, made payable to the Lender by the Borrowers, jointly and severally,
in the original principal amount of One Million Four Hundred Thousand and 00/100
($1,400,000.00), as the same may be amended and/or restated from time to time.
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1.14 "Obligations" shall mean any and all indebtedness,
obligations and liabilities of Borrowers or either of them to Lender of every
kind and description, direct or indirect, secured or unsecured, joint or
several, absolute or contingent, due or to become due, whether for payment or
performance, now existing or hereafter arising, regardless of how the same arise
or by what instrument, agreement or book account they may be evidenced or
whether evidenced by any agreement, instrument or book account; including,
without limitation, the Loan Loan, all loans and any loan by renewal or
extension, all indebtedness, all undertakings to take or refrain from taking any
action, all indebtedness, liabilities or obligations owing from Borrowers or
either of them to others which Lender may have obtained by purchase,
negotiation, discount, assignment or otherwise, all interest, taxes, fees,
charges, expenses and attorneys' fees chargeable to Borrowers or either of them
or incurred by Lender in connection with any transaction between Borrowers or
either of them and Lender.
1.15 "Receivables" shall mean all accounts, contract rights,
instruments, documents, chattel paper, general intangibles (including, without
limitation, choses in action, tax refunds, insurance proceeds and the name and
any trade names of Borrowers or either of them); any other obligations or
indebtedness owed to Borrowers or either of them from whatever source arising;
all rights of Borrowers or either of them to receive any payments in money or
kind; all guarantees of Receivables and security therefor; all cash or non-cash
proceeds of all of the foregoing; all of the right, title and interest of
Borrowers and each of them in and with respect to the goods, services or other
property which gave rise to or which secure any of the Receivables and insurance
policies and proceeds relating thereto, and all of the rights of Borrowers and
each of them as an unpaid seller of goods or services, including, without
limitation, the rights of stoppage in transit, replevin, reclamation and resale,
and all of the foregoing, whether now existing or hereafter created or acquired.
1.16 "S&TR" shall mean Science & Technology Research, Inc., a
Maryland corporation.
1.17 "STI" shall mean Security Technology, Inc., a Delaware
corporation.
2. REPRESENTATIONS AND WARRANTIES OF BORROWERS
As a material inducement to Lender to enter into this Loan
Agreement, Borrowers and each of them represent and warrant to Lender, and such
representations and warranties shall survive and shall be deemed to be
continuing representations and warranties so long as any Obligations remain
outstanding, as follows:
2.1 Each of Borrowers has been duly incorporated and organized
and has the power and authority to own its properties and assets and to conduct
its business and to enter into and perform this Agreement and the Loan and
Security Documents executed by it and to incur the Obligations; each of
Borrowers is in good standing where incorporated and is qualified and in good
standing as a foreign corporation in those jurisdictions where the conduct of
its business or the ownership of its properties requires qualification; except
where the failure to qualify would not have a material adverse affect on
Borrowers or either of them.
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2.2 Neither of Borrowers is in default in any material respect
under any agreement to which it is a party or by which it is bound. The
execution and performance of this Agreement and those Loan and Security
Documents to be executed and performed by Borrowers and each of them will not
violate any law or the terms of either of the Borrowers' incorporation documents
or bylaws, nor violate or result in a material default or acceleration of either
of the Borrowers' obligations or in the creation or imposition of any lien or
encumbrance upon any material portion of either of the Borrowers' assets
(immediately, with the passage of time, or with the giving of notice and the
passage of time).
2.3 This Agreement, the Loan and Security Documents, and all
other agreements, documents or instruments to be delivered by Borrowers or
either of them in connection with the transactions contemplated hereunder have
each been duly authorized, executed and delivered and the transactions
contemplated hereby or thereby have been duly authorized. This Agreement, the
Loan and Security Documents and such other agreements, documents or instruments
constitute the valid and legally binding joint and several obligations of the
Borrowers and each of them and are enforceable against Borrowers and each of
them in accordance with their respective terms.
2.4 Except as set forth in SCHEDULE 2.4 hereto, there is no
claim, loss contingency, litigation or proceeding pending or, to the best of
Borrowers' knowledge, threatened against or otherwise affecting Borrowers or
either of them which involves the possibility of any judgment or liability not
fully covered by insurance or which may result in a material adverse change in
condition, financial or otherwise, of Borrowers or either of them.
2.5 Each of Borrowers owns or leases all property, tangible
and intangible, including without limitation, customer lists, patents,
trademarks and trade names, necessary to conduct the business in which it is
engaged in the manner in which that business has been conducted, and its
properties are free and clear of all security interests, encumbrances or liens
except as identified on SCHEDULE 2.5 hereto, and it will defend its properties
against all claims and demands of all persons (other than Lender and the parties
named on SCHEDULE 2.5 hereto, with respect to the liens described therein, if
any) at any time claiming an interest therein.
2.6 Each of Borrowers' financial statements furnished to
Lender are complete and accurate presentations of its financial condition as of
the respective dates thereof, and have been prepared in accordance with
generally accepted accounting principles consistently applied; and, since the
respective dates of the financial statements there has been no material adverse
change in either or both of the Borrowers' financial condition and there has
been no transaction affecting either or both of the Borrowers other than in the
ordinary course of business.
2.7 Each of Borrowers has filed all federal, state and local
tax returns and other reports required to be filed and has paid or made adequate
provision for payment of all taxes, assessments and other governmental charges.
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2.8 No representation, warranty or statement by Borrowers or
either of them contained herein or in any certificate or other document
furnished or to be furnished pursuant hereto contains, or at the time of
delivery shall contain, any untrue statement of material fact, or omits, or
shall omit at the time of delivery, to state a material fact necessary to make
it not misleading.
2.9 To the best of knowledge of Borrowers and each of them,
the execution, delivery and performance of this Agreement and the Loan and
Security Documents by Borrowers will not constitute a fraudulent conveyance
under any applicable law.
2.10 Neither of the Borrowers has used, nor will it use or
permit others to use any of the proceeds of the Loan, directly or indirectly,
for the purpose of purchasing or carrying any "margin stock" within the meaning
of Regulation U (12 CFR Part 221), or any "margin security" within the meaning
of Regulation G (12 CFR Part 207), of the Board of Governors of the Federal
Reserve System or to reduce or retire any indebtedness originally incurred to
purchase or carry any such margin stock or margin security within the meaning of
such Regulations or for any other purpose which might constitute the
transactions contemplated hereby a "purpose credit" within the meaning of said
Regulations, or cause this Agreement to violate Regulation U, or any other
regulation of the Board of Governors of the Federal Reserve System, or the
Securities Exchange Act of 1934.
2.11 Each of the Borrowers has complied in all material
respects with all laws, regulations and orders applicable to its business,
including those pertaining to federal securities requirements, zoning,
environment, health and safety, and the present uses of its properties do not
violate in any material respect any such laws, regulations and orders.
2.12 The Borrowers will use the proceeds of the Loan to
refinance existing indebtedness and to fund the acquisition of S&TR by STI.
3. LOAN PROVISIONS
Following the execution and delivery of this Agreement and the Loan and
Security Documents, Lender, subject to the terms and conditions hereinafter set
forth, agrees to extend the Loan to Borrowers as follows:
3.1 LOAN. Provided that no Event of Default shall have
occurred and no condition which, with the giving of notice or the passage of
time or both would constitute an Event of Default shall exist, and subject to
the terms and conditions of this Agreement and the conditions precedent
enumerated in SECTION 4 hereof, Lender agrees to make the Loan available to
Borrowers until the Maturity Date. The Loan will be disbursed in two stages,
with a first disbursement in the amount of Four Hundred Thousand and 00/100
($400,000.00) Dollars, with the first One Hundred Thousand and 00/100
($100,000.00) Dollars to be applied to the Lender's commitment fee and other
fees and expenses of closing, and Three Hundred Thousand and 00/100
($300,000.00) to be applied to pay the indebtedness of Borrowers to
Syqwest/ODEC. The second disbursement, to be made within two business days of
the first disbursement, shall be in the amount of One Million and 00/100
($1,000,000.00) Dollars to be used to finance the acquisition by Borrowers of
ST&R.
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3.1.1 The Loan shall be evidenced by and repayable in
accordance with the terms and provisions of the Note. Lender shall enter as
debits against the indebtedness evidenced by the Note, all Advances, interest
charges, expenses and other items properly chargeable with respect to the Loan,
and shall enter as credits against the indebtedness evidenced by the Note all
payments made by Borrowers on account of such indebtedness. The outstanding
balance of the Loan shall be the amount reflected on Lender's ledger, computer
or other records, such information to be readily transcribable onto any allonge
or other addendum attached to the Note which shall be conclusive evidence of the
amount of the indebtedness, absent manifest error. The Borrowers shall not be
entitled to reborrow any amount of principal advanced under the Loan and then
repaid to Lender.
3.1.2 Upon the earlier to occur of: (a) October __,
2003; or (b) the occurrence of an Event of Default hereunder: (i) Lender shall
be under no further obligation to make any Advances under the Loan; (ii) all
sums owing by Borrowers or either of them under the Note shall be immediately
due and payable; and (iii) Lender shall be authorized to set off any obligations
or indebtedness owing from Lender to Borrowers or either of them for the amount
of the principal, interest, fees, expenses and charges which shall be due and
payable under the Note.
3.2 DAY OF PAYMENT. Whenever any payment to be made in
connection with the Note shall become due and payable on a day which is not a
Business Day, such payment may be made on the next succeeding Business Day and,
in the case of any payment of principal, such extension of time shall in such
case be included in computing interest in such payment.
4. CONDITIONS PRECEDENT TO THE LOAN
4.1 Borrowers shall satisfy the following conditions prior to
the making of any Advance under the Loan: all of the representations and
warranties set forth in SECTION 2 hereof shall be true and correct in all
material respects; there shall have been no material adverse change in the
business, assets, operations, property or condition of Borrowers or either of
them; no Event of Default shall have occurred; no condition which, with the
passage of time or the giving of notice or both would constitute an Event of
Default, shall exist; October __, 2003 shall not have passed; and, Borrowers
shall have delivered to Lender, all in form and substance satisfactory to Lender
in its sole discretion, each of the following:
4.1.1 LOAN AND SECURITY DOCUMENTS:
(a) Note;
(b) Security Agreements by and between
Borrowers and Lender to secure the Obligations;
(c) Original Stock Certificates for Ergo
Systems, Inc., a ________________ corporation
("Ergo"");
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(d) Original Stock Certificates for S&TR;
(e) Stock Powers for Ergo and S&TR; and
(f) Landlord's Agreements from each of
Borrowers' landlords.
4.1.2 CORPORATE AND OTHER DOCUMENTS:
(a) Certificate of the Secretary of each
of the Borrowers containing copies of resolutions of the Board of Directors and
Stockholders of each of the Borrowers authorizing the execution, delivery and
performance of this Agreement, the Loan and Security Documents, any document or
instrument to be delivered pursuant hereto, and the transactions contemplated
herein and therein, and identifying the officer or officers authorized to
execute same and to make requests for Advances hereunder;
(b) Certificates of reasonably recent
dates of the Secretary of the States of Florida and Delaware and the Tax
Administrator of each of those States, certifying that each of the Borrowers is
in good standing in such jurisdiction;
(c) Proof of filing of financing
statements necessary to perfect the security interest of Lender granted pursuant
to the Security Agreement referred to in SECTION 4.1.1 as Lender shall require;
(d) Risk, hazard and fire insurance
endorsements with respect to the interest of Lender as secured party of
Borrowers, naming Lender as loss payee and additional insured, as applicable;
(e) Evidence of comprehensive general
liability insurance (broad form CGL endorsement), naming Lender as loss payee
and additional insured;
(f) Resolutions of the Board of Directors
of Borrowers approving the Agreement and Plan of Merger, approving the Loan, and
expressly acknowledging that Xxxxxx Xxxxxx, a stockholder of Xxxxxxxx and member
of the Board of Directors of Xxxxxxxx, will be the chief executive officer of
ST&R, and that his departure for any reason from the aforesaid position shall be
an Event of Default (as hereinafter defined); and
(g) Such other documents or instruments as
Lender shall reasonably request at any time
or from time to time.
4.1.3 LEGAL OPINION: Opinion of Xxxxxxx, Xxxxx &
Xxxxx, LLP, counsel to Borrowers.
4.2 COMMITMENT FEE: A commitment fee in the amount of Eighty
Thousand and 00/100 ($80,000.00) Dollars, which fee, as consideration for the
substantial services Lender has rendered in preparation of this Agreement, shall
be deemed earned and non-refundable upon receipt.
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4.3 SUBSEQUENT LOANS ETC. All of the representations and
warranties of Borrowers and each of them set forth in SECTION 2 hereof shall be
true and correct in all material respects; no Event of Default shall have
occurred no condition which, with the passage of time or the giving of notice or
both would constitute an Event of Default, shall exist; October __, 2003 shall
not have passed; and, in addition, if requested by Lender, each of Borrowers
agrees to deliver to Lender such other documents and instruments as Lender shall
reasonably require. Borrowers shall not be entitled to reborrow any amount of
principal advanced under the Loan and then repaid to Lender.
5. NEGATIVE COVENANTS OF BORROWERS
Each of Borrowers covenants and agrees that during the term of
this Agreement and so long as any Obligations remain outstanding, it will not,
without the prior written consent of Lender:
5.1 Make any change in its executive management or control
including but not limited to the departure, termination or removal of Xxxxxx
Xxxxxx from any on or more of the following positions or offices for any reason:
chief executive officer of S&TR, or as a member of the board of directors of
S&TR; make or permit to be made any change in the ownership of either or both of
STI or S&TR; cause or permit either or both of STI or S&TR to purchase, redeem
(notwithstanding the terms of any agreements between it and its stockholders to
the contrary unless such redemption is fully funded by the proceeds of a life
insurance policy) or retire any of their respective capital stock; consolidate
or merge with or make any acquisition of any other corporation, partnership,
company or business; reorganize or recapitalize; or give any preferential
treatment to any corporation, partnership, company or person whatsoever,
including without limitation, any of its shareholders; issue any stock other
than that which is presently issued and outstanding, regardless of class, or
make any other change whatsoever in its capital structure; or issue or grant any
subscription rights, options, warrants or any other rights to acquire shares of
its capital stock.
5.2 Sell, lease, transfer or dispose of any of its assets;
provided, however, (i) they may sell finished goods inventory in the ordinary
course of business (excluding, however, any sale made in partial or total
satisfaction of a debt); and (ii) they may dispose of equipment which has become
outdated or is not used by or useful to either of the Borrowers if and so long
as they replace the same with equipment of equal or greater value.
5.3 Guarantee, endorse, or otherwise become liable for or upon
the obligations of any person, corporation, partnership or entity, except: (i)
by endorsement for deposit in the ordinary course of business; or (ii) as
otherwise required or permitted by this Agreement.
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5.4 Become or remain obligated for any indebtedness for
borrowed money or for indebtedness (whether in the form of a debt obligation or
otherwise including, without limitation, lease obligations) except:
a. indebtedness to Lender hereunder;
b. current trade, utility or non-extraordinary
accounts payable arising or incurred in the ordinary course of business; and
c. indebtedness of STI to Xxxxxx Xxxx in the maximum
principal amount of Three Hundred Seventy-five Thousand and 00/100 ($375,000.00)
Dollars.
5.5 Create, incur, assume or permit to exist, any mortgage,
pledge, lien, security interest or other encumbrance on any of its properties or
assets whether now owned or hereafter acquired; provided, however, that the
foregoing restrictions shall not apply to:
a. mortgages, pledges, liens, security interests or
other encumbrances in favor of Lender;
b. liens for taxes, assessments and other
governmental charges and levies not yet delinquent or which are payable without
penalty or interest or (if foreclosure, distraint, sale or other similar
proceeding shall not have been commenced) which are being contested in good
faith by appropriate proceedings diligently conducted, if such reservation or
other appropriate provision, if any, as shall be required by generally accepted
accounting principles shall have been made therefor;
c. liens of carriers, warehousemen, materialmen and
mechanics incurred in the ordinary course of business for sums not yet due;
d. liens, encumbrances, pledges or deposits of
personal property incurred in the ordinary course of business in connection with
workmen's compensation, unemployment insurance and other social security
legislation or to secure performance of statutory obligations, surety and appeal
bonds, performance or return of money bonds and other obligations of a like
nature, exclusive of obligations for the payment of money borrowed; and
e. a pledge of not more than forty (40%) percent of
the common stock of S&TR to Xxxxxx Xxxx to secure the indebtedness permitted by
SECTION 5.5 (C) hereof.
5.6 Purchase or acquire obligations of any third party other
than direct obligations of the United States of America or of Lender.
5.7 Make any substantial change in, or cease in whole or in
part, its present business; or engage in any other material activities apart
from its present business.
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5.8 Cause or permit S&TR to:
a. make any change in its executive management or
control; consolidate or merge with or make any acquisition of any other
corporation, partnership, company or business; reorganize or recapitalize; or
give any preferential treatment to any corporation, partnership, company or
person whatsoever, including without limitation, any of its shareholders; issue
any stock other than that which is presently issued and outstanding, regardless
of class, or make any other change whatsoever in its capital structure; or issue
or grant any subscription rights, options, warrants or any other rights to
acquire shares of its capital stock;
b. sell, lease, transfer or dispose of any of its
assets; provided, however, (i) S&TR may sell finished goods inventory in the
ordinary course of business (excluding, however, any sale made in partial or
total satisfaction of a debt); and (ii) S&TR may dispose of equipment which has
become outdated or is not used by or useful to S&TR if and so long as it
replaces the same with equipment of equal or greater value;
c. guarantee, endorse, or otherwise become liable for
or upon the obligations of any person, corporation, partnership or entity,
except: (i) by endorsement for deposit in the ordinary course of business; or
(ii) as otherwise required or permitted by this Agreement;
d. become or remain obligated for any indebtedness
for borrowed money or for indebtedness (whether in the form of a debt obligation
or otherwise including, without limitation, lease obligations) except current
trade, utility or non-extraordinary accounts payable arising or incurred in the
ordinary course of business;
e. create, incur, assume or permit to exist, any
mortgage, pledge, lien, security interest or other encumbrance on any of its
properties or assets whether now owned or hereafter acquired; provided, however,
that the foregoing restrictions shall not apply to:
(i) mortgages, pledges, liens, security
interests or other encumbrances in favor of Lender;
(ii) liens for taxes, assessments and other
governmental charges and levies not yet delinquent or which are payable without
penalty or interest or (if foreclosure, distraint, sale or other similar
proceeding shall not have been commenced) which are being contested in good
faith by appropriate proceedings diligently conducted, if such reservation or
other appropriate provision, if any, as shall be required by generally accepted
accounting principles shall have been made therefor;
(iii) liens of carriers, warehousemen,
materialmen and mechanics incurred in the ordinary course of business for sums
not yet due; and
(iv) liens, encumbrances, pledges or
deposits of personal property incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance and other social
security legislation or to secure performance of statutory obligations, surety
and appeal bonds, performance or return of money bonds and other obligations of
a like nature, exclusive of obligations for the payment of money borrowed;
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f. purchase or acquire obligations of any third party
other than direct obligations of the United States of America or of Lender;
g. make any substantial change in, or cease in whole
or in part, its present business; or engage in any other material activities
apart from its present business; and
h. terminate or enter into any material amendment or
modification of the Contract.
6. AFFIRMATIVE COVENANTS OF BORROWERS
Each of the Borrowers covenants and agrees that it will during
the term hereof and so long as any Obligations remain outstanding:
6.1 Furnish or cause to be furnished to the Lender the
following, each of which shall be in form and substance satisfactory to the
Lender, and shall be certified by the Borrowers, as applicable, to be true,
correct and complete:
6.1.1 Within ninety (90) days of the end of each
fiscal year of Borrowers, (i) a financial statement of each of the Borrowers,
including a balance sheet, statement of income, retained earnings statement,
statement of cash flows and similar statements, all in form satisfactory to
Lender, prepared on a review basis by an independent certified public accountant
acceptable to Lender, in its discretion, and certified by the chief financial
officer of Borrowers to be true, correct and complete;
6.1.2 Within forty-five (45) days of the end of each
fiscal quarter of Borrowers, a financial statement similar to the financial
statement required by SECTION 6.1.1 indicating comparable year to date financial
results and financial position for the quarter then ended, and the previous
year's comparable financial results and financial position, prepared by
Borrowers' management, and certified by the chief financial officer of Borrowers
to be true, correct and complete;
6.1.3 within ten (10) days of the end of each month,
a statement reporting the gross revenue of S&TR, prepared by the management of
S&TR and certified to be true, correct and complete by the chief financial
officers of S&TR, MTI and STI; and
6.1.4 Promptly and in form satisfactory to Lender,
such other information regarding the operations or financial condition of
Borrowers and S&TR and each of them as Lender may request from time to time.
6.2 Maintain casualty insurance coverage on its physical
assets as required by the Security Agreement referenced in SECTION 4.1.1.
hereof, naming Lender as loss payee, and providing not less than thirty (30)
days notice of cancellation to Lender.
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6.3 Maintain general liability insurance coverage of such
types and in such amounts as shall be satisfactory to Lender in its sole
discretion, and Lender shall be named as additional insured on any and all
policies evidencing such insurance coverage and providing not less than thirty
(30) days notice of cancellation to Lender.
6.4 Permit Lender, through its authorized representatives, to
perform commercial finance examinations and/or appraisals of the business and
assets of Borrowers and each of them and to examine the books, records and
assets of every kind and description of Borrowers and each of them, at
Borrowers' reasonable expense at all reasonable times.
6.5 Promptly notify Lender of any condition or event which
constitutes, or would constitute with the passage of time or giving of notice or
both, a default under this Agreement, or the Loan and Security Documents or any
other document or instrument issued in connection herewith, and promptly notify
Lender of any changes in its financial condition which, individually or
cumulatively, may result in a material adverse change in its financial
condition.
6.6 Maintain in good standing its corporate existence and its
status as a foreign corporation qualified to do business in those jurisdictions
where it is required to be qualified.
6.7 If it shall now or hereafter maintain an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974 (hereinafter
"ERISA"), promptly: (i) notify Lender of the filing of a notice with the Pension
Benefit Guaranty Corporation ("PBGC") pursuant to ERISA that the plan is to be
terminated; and (ii) notify Lender of the notice or institution of any
proceedings by the PBGC under ERISA.
6.8 At any time and from time to time upon request of Lender,
execute and deliver to Lender in form and substance satisfactory to Lender,
negotiable promissory notes for any or all of the Obligations and/or such other
documents in respect of the Obligations as Lender shall request to evidence or
perfect the Obligations or Lender's security interest in its collateral for the
Obligations, or any documents in respect of the Obligations which may be
necessary to comply with the law of the State of Rhode Island or the law of any
other states in which Borrowers or either of them may be conducting business or
to which Borrowers or either of them may be subject.
6.9 Pay or deposit promptly when due all taxes, assessments
and governmental charges upon or relating to its income, or the operation of its
business or otherwise, for which it is or may be liable and upon request submit
to Lender proof satisfactory to Lender that such payments and deposits have been
made.
7. HAZARDOUS MATERIALS
7.1 REPRESENTATIONS AND WARRANTIES. Each of Borrowers
represents and warrants to Lender, and such representations and warranties shall
survive and shall be deemed to be continuing representations and warranties so
long as any Obligations remain outstanding, as follows:
12
7.1.1 Each of the Borrowers has obtained all permits,
licenses and other authorizations which are required under all Environmental
Laws, except to the extent failure to have any such permit, license or
authorization would not have a material adverse effect on the business,
financial condition or operations of Borrowers or either of them. Each of the
Borrowers, and any property or vessel owned, occupied or operated by either or
both of the Borrowers, is in compliance with all Environmental Laws and is in
compliance with the terms and conditions of all such permits, licenses and
authorizations, and is in compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules and
timetables contained in any applicable Environmental Laws or in any regulation,
code, plan, order, decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder, except to the extent failure to
comply would not have a material adverse effect on the business, financial
condition or operations of Borrowers or either of them.
7.1.2 No notice, notification, demand, request for
information, citation, summons or order has been issued, no complaint has been
filed, no penalty has been assessed and no investigation or review is pending or
threatened by any governmental or other entity with respect to any alleged
failure by Borrowers or either of them to have any permit, license or
authorization required in connection with the conduct of its business or with
respect to any Environmental Laws, including, without limitation, Environmental
Laws relating to the generation, treatment, storage, recycling, transportation,
disposal or release of any Hazardous Materials.
7.1.3 No oral or written notification of the
existence of, a release of or a threat of release of any Hazardous Materials has
been filed by or on behalf of Borrowers or either of them and no property now or
previously owned, leased or used by Borrowers or either of them is listed or, to
the best of Borrowers' knowledge, proposed for listing on the National
Priorities List under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, or on any similar state list of sites
requiring investigation or clean-up.
7.1.4 There are no liens or encumbrances arising
under or pursuant to any Environmental Laws on any of the real property or
properties owned, occupied or operated by Borrowers or either of them and no
governmental actions have been taken or are in process which could subject any
of such properties to such liens or encumbrances or, as a result of which
Borrowers or either of them would be required to place any notice or restriction
relating to the presence of Hazardous Materials at any property owned by it in
any deed to such property.
7.1.5 Neither of the Borrowers nor, to the best
knowledge of the Borrowers and each of them, any previous owner, tenant,
occupant or operator of any property or vessel owned, occupied or operated by
Borrowers or either of them has (i) engaged in or permitted any operations or
activities upon or any use or occupancy of such property, or any portion
thereof, for the purpose of or in any way involving the handling, manufacture,
treatment, storage, use, generation, release, discharge, refining, dumping or
disposal (whether legal or illegal, accidental or intentional) of any Hazardous
13
Materials on, under, in or about such property, except to the extent commonly
used in day-to-day operations of such property and in such case only in
compliance with all Environmental Laws, or (ii) transported or arranged for the
transportation of any Hazardous Materials to, from or across such property
except to the extent commonly used in day-to-day operations of such property
and, in such case, in compliance with, all Environmental Laws; nor to the best
knowledge of Borrowers and each of them have any Hazardous Materials migrated
from other properties upon, about or beneath such property, nor, to the best
knowledge of Borrowers and each of them are any Hazardous Materials presently
constructed, deposited, stored or otherwise located on, under, in or about such
property except to the extent commonly used in day-to-day operations of such
property and, in such case, in compliance with, all Environmental Laws and to
the extent that any such Hazardous Materials are constructed, deposited, stored
or otherwise located on, under, in or about such property in any material
amount, Borrowers will list such Hazardous Materials on SCHEDULE 7.1.5 hereto.
7.2 COMPLIANCE WITH LAWS. Each of the Borrowers shall comply
in all material respects with all Environmental Laws. In the event that any
Hazardous Materials are found on or in any property or vessel owned, occupied or
operated by Borrowers or either of them, Borrowers shall immediately contain and
remove the same in compliance with all Environmental Laws.
7.3 NOTICE OF FAILURE. Each of the Borrowers shall immediately
notify Lender in writing of the issuance of any notice, notification, demand,
request for information, citation, summons or order, the filing of any
complaint, the assessment of any penalty, or the pendency or threat of any
investigation or review by any governmental or other entity with respect to the
alleged failure of Borrowers or either of them to have any permit, license or
authorization required in connection with the conduct of its business or
otherwise with respect to any Environmental Laws.
7.4 NOTICE OF RELEASE. Each of the Borrowers shall immediately
notify Lender in writing of: (i) any potential or known release or threat of
release of any Hazardous Materials at, on or from any property or vessel owned,
occupied or operated by Borrowers or either of them; (ii) the filing of any oral
or written notification of the existence of, a release of or a threat of release
of any Hazardous Materials by or on behalf of Borrowers or either of them; (iii)
the threat or institution of any enforcement, cleanup, removal or other action
by any governmental or other entity pursuant to any Environmental Laws, and (iv)
the threat or making of any claims by any third party against Borrowers or
either of them or any property or vessel owned, operated or occupied by
Borrowers or either of them, relating to the existence of, or damage, loss or
injury from, any Hazardous Materials.
7.5 INDEMNIFICATION. Each of the Borrowers hereby indemnifies
and and agrees to defend and hold each of the Indemnified Parties harmless from
and against any claim, cost, damage (including, without limitation,
consequential damages), expense (including, without limitation, attorneys' fees
and expenses), loss, liability, or judgment now or hereafter arising as a result
of any claims for environmental cleanup costs, any resulting damage to the
environment and any other environmental claims against any of the Indemnified
14
Parties with respect to any property owned, operated or occupied by Borrowers or
either of them or involving Borrowers or either of them in any other capacity.
Each of the Borrowers hereby further indemnifies, agrees to defend, and holds
each of the Indemnified Parties harmless from and against all loss, damage,
liability and expense, including, without limitation, attorneys' fees and
expenses, suffered or incurred by any of the Indemnified Parties with respect to
any property owned, operated or occupied by Borrowers or either of them or
involving Borrowers or either of them in any other capacity under or on account
of the administration or enforcement of any Environmental Laws or any legal
action relating to the release, threat of release, transportation, storage,
disposition or removal of any Hazardous Materials, including the assertion of
any lien by reason of the release or threat of release of Hazardous Materials.
THIS COVENANT OF INDEMNIFICATION SHALL SURVIVE TERMINATION OF THE LOAN AND
REPAYMENT, SATISFACTION AND DISCHARGE OF THE OBLIGATIONS.
8. EVENTS OF DEFAULT AND ACCELERATION
8.1 The occurrence of any one or more of the following shall
constitute an Event of Default hereunder:
8.1.1 Failure to make any payment of any principal,
interest or other charges in respect of any of the Obligations as and when the
same shall be due, and the expiration of any applicable grace or cure period
with respect thereto;
8.1.2 Default in the observance or performance of any
covenant or agreement of Borrowers or either of them herein set forth or set
forth in any of the Loan and Security Documents or in any agreement, note or
instrument heretofore, now or hereafter executed by either or both of the
Borrowers in favor of Lender, and the expiration of any applicable grace or cure
period with respect thereto;
8.1.3 If any representation, warranty, certificate,
schedule or other information made or furnished by Borrowers or either of them
herein or pursuant hereto or pursuant to the Loan and Security Documents is or
shall be incorrect, untrue or misleading in any material respect at the time
made or given;
8.1.4 Default in the performance of any material
obligations of any one or more of Borrowers or S&TR to any third party including
but not limited to the indebtedness of either or both of the Borrowers permitted
pursuant to SECTION 5.5(C) hereof;
8.1.5 Any change for any reason whatsoever in the
executive management, majority ownership or control of any one or more of
Borrowers or S&TR other than as expressly permitted hereunder;
8.1.6 Loss, theft, damage or destruction of any
portion of the property of any one or more of Borrowers or S&TR for which there
is either no insurance coverage or for which, in the opinion of Lender, there is
insufficient insurance coverage or the making of any levy, seizure or attachment
upon any portion of the property of anyone or more of Borrowers or S&TR;
15
8.1.7 Insolvency of any one or more of the Borrowers
or S&TR or the failure of any one or more of the Borrowers or S&TR generally to
pay its debts as they come due or if a creditors' committee is appointed for the
business of any one or more of the Borrowers or S&TR; or if any one or more of
the Borrowers or S&TR makes an assignment for the benefit of creditors, or an
Order for Relief is entered with respect to any one or more of the Borrowers or
S&TR under the federal bankruptcy laws as now or hereafter constituted, or if a
case in bankruptcy or a petition for reorganization or to effect a plan or
arrangement with creditors is filed by or against any one or more of the
Borrowers or S&TR; or if any one or more of the Borrowers or S&TR applies for or
permits the appointment of a receiver or trustee for any of its property or
assets, or if any such receiver or trustee is appointed for any of such property
or assets; or if any one of the above actions or proceedings whatsoever are
commenced by or against any one or more of the Borrowers or S&TR and shall not
be dismissed within thirty (30) days;
8.1.8 If a proceeding is filed or commenced by or
against any one or more of the Borrowers or S&TR for its dissolution or
liquidation and in the event of a proceeding commenced against any one or more
of the Borrowers or S&TR, the same remains undismissed or unstayed for a period
of thirty (30) days; or if any one or more of the Borrowers or S&TR voluntarily
or involuntarily dissolves or is dissolved, terminates or is terminated;
8.1.9 If any one or more of the Borrowers or S&TR is
enjoined, restrained or in any way prevented by Court or Administrative order
from conducting all or any material part of its business affairs;
8.1.10 The termination of, or the occurrence of any
default under, or the existence of any event, circumstance or condition that
would, with either notice or the passage of time or both, either constitute a
default under or give to any party the right to terminate, the Contract; or
8.1.11 The occurrence of an Event of Default under
any one or more of the Loan and Security Documents.
8.2 If any Event of Default shall occur, then or at any time
thereafter, Lender may declare the Obligations to be immediately due and
payable, without notice, protest, presentment or demand, all of which are hereby
expressly waived by Borrowers and each of them.
9. GENERAL PROVISIONS
9.1 The failure of Lender at any time or times hereafter to
require strict performance by Borrowers or either of them of any of the
provisions, warranties, terms or conditions contained in this Agreement, in any
of the Loan and Security Documents, or in any other agreement, guaranty, note,
instrument or document now or at any time or times hereafter executed by
Borrowers or either or them and delivered to Lender shall not waive, affect or
diminish any right of Lender at any time or times hereafter to demand strict
performance thereof; and, no rights of Lender hereunder shall be deemed to have
been waived by any act or knowledge of Lender, its agents, officers or
employees, unless such waiver is contained in an instrument in writing signed by
an officer of Lender. No waiver by Lender of any of its rights on any one
occasion shall operate as a waiver of any other of its rights or any of its
rights on a future occasion.
16
9.2 Except as otherwise specifically provided herein, any
demand or notice required or permitted to be given hereunder shall be deemed
effective when deposited in the United States mail, and sent by certified mail,
return receipt requested, postage prepaid, addressed to Lender and to Borrowers,
as appropriate (or to such other address as may be provided by the party to be
notified, on ten (10) days prior written notice to the other parties), as
follows:
If to Borrowers: Xxxxxxxx Technologies, Inc.
_____________________________
_____________________________
Security Technology, Inc.
_____________________________
_____________________________
with a copy to: _____________________________
_____________________________
_____________________________
If to Lender: Bay View Capital L.L.C.
0000 Xxxx Xxxx, Xx. 000-000
Xxxx Xxxxxxxxx, XX 00000
with a copy to: XxxXxxxx & Xxxxx Incorporated
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxxxxx X. Gemma, Esq.
9.3 Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law;
should any portion of this Agreement be declared invalid for any reason in any
jurisdiction, such declaration shall have no effect upon the remaining portions
of this Agreement. Furthermore, the entirety of this Agreement shall continue in
full force and effect in all other jurisdictions and said remaining portions of
this Agreement shall continue in full force and effect in the subject
jurisdiction as if this Agreement had been executed with the invalid portions
thereof deleted.
17
9.4 The provisions of this Agreement shall be binding upon and
shall inure to the benefit of the successors and assigns of Lender and each of
the Borrowers; provided, however, that neither of the Borrowers may assign any
of its or their rights or delegate any of its or their obligations hereunder
without the prior written consent of Lender.
9.5 This Agreement is and shall be deemed to be a contract
entered into and made pursuant to the laws of the State of Rhode Island, without
reference to conflict of laws principles, and shall in all respects be governed,
construed, applied and enforced in accordance with the laws of said State. ANY
CAUSE OF ACTION ARISING BETWEEN OR AMONG THE PARTIES, WHETHER UNDER THIS
AGREEMENT OR OTHERWISE, SHALL BE BROUGHT ONLY IN A COURT HAVING JURISDICTION AND
VENUE AT PROVIDENCE, RHODE ISLAND. EACH OF THE BORROWERS CONSENTS TO AND CONFERS
PERSONAL JURISDICTION OVER IT BY SUCH COURT OR COURTS AND AGREES THAT SERVICE OF
PROCESS MAY BE MADE UPON IT BY MAILING A COPY OF THE SUMMONS TO IT AT THE
ADDRESS FOR NOTICE TO BORROWERS SET FORTH IN SECTION 9.2 ABOVE, AND IN ANY SUCH
ACTION EACH OF BORROWERS AND LENDER KNOWINGLY, VOLUNTARILY AND IRREVOCABLY
WAIVES THE RIGHT TO DEMAND A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON,
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LOAN AGREEMENT OR ANY OTHER
LOAN OR SECURITY DOCUMENTS EXECUTED IN CONNECTION HEREWITH OR RELATED HERETO OR
ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT
FOR LENDER TO ACCEPT THIS LOAN AGREEMENT AND MAKE THE LOAN.
9.6 This Agreement represents the entire Agreement between the
parties with respect to the matters set forth herein and supersedes all prior
written or oral agreements or understandings, if any.
9.7 If at any time or times hereafter, Lender shall employ
counsel in any capacity in connection with the transactions contemplated by this
Agreement or any other agreement, guaranty, notice, instrument or document
heretofore, now or at any time or times hereafter executed by Borrowers or
either of them and delivered to Lender, whether before or after the occurrence
of any Event of Default, or to collect any of the Obligations, then in any of
such events, all of the reasonable attorneys' fees arising from such services,
and any reasonable expenses, costs, and charges relating thereto, shall be part
of the Obligations, payable on demand and bearing interest thereon at the same
rate provided in the Note.
9.8 Lender shall have a right to set-off, at any time from and
after the occurrence of an Event of Default without notice to Borrowers or
either of them, any and all sums at any time or times credited by or due from
Lender to either or both of the Borrowers, or any other obligations or
indebtedness owing from Lender to either or both of the Borrowers, how so ever
evidenced, which sums shall at all times constitute additional security for the
Obligations and may be applied thereto at any time from and after the occurrence
of an Event of Default, without notice.
18
9.9 Lender shall have a lien on and a continuing security
interest in all instruments, documents, securities, cash and property and the
proceeds of any of the foregoing now owned or hereafter acquired by Borrowers or
either of them or in which Borrowers or either of them now has or may hereafter
acquire an interest, which now or hereafter are at any time in possession or
control of Lender or in transit by mail or carrier to or from Lender or in the
possession of any third party acting on behalf of Lender, without regard to
whether Lender received the same in pledge for safekeeping, as agent for
collection or transmission or otherwise or whether Lender had conditionally
released the same, all of which shall at all times constitute additional
security for the Obligations and may be applied thereto at any time from and
after the occurrence of an Event of Default, without notice.
9.10 All agreements between Borrowers and each of them and the
Lender are hereby expressly limited so that in no contingency or event
whatsoever, whether by reason of acceleration of maturity of the indebtedness
evidenced hereby or otherwise, shall the amount paid or agreed to be paid to
Lender for the use or the forbearance of the indebtedness evidenced hereby
exceed the maximum permissible under applicable law. As used herein, the term
"applicable law" shall mean the law in effect as of the date hereof provided,
however, that in the event there is a change in the law which results in a
higher permissible rate of interest, then this Note shall be governed by such
new law as of its effective date. In this regard, it is expressly agreed that it
is the intent of each of the Borrowers and Lender in the execution, delivery and
acceptance of this Note to contract in strict compliance with the laws of the
State of Rhode Island from time to time in effect. If, under or from any
circumstances whatsoever, fulfillment of any provision hereof or of any of the
Loan Documents or the Security Documents at the time of performance of such
provision shall be due, shall involve transcending the limit of such validity
prescribed by applicable law, then the obligation to be fulfilled shall
automatically be reduced to the limits of such validity, and if under or from
circumstances whatsoever Lender should ever receive as interest an amount which
would exceed the highest lawful rate, such amount which would be excessive
interest shall be applied to the reduction of the principal balance evidenced
hereby and not to the payment of interest. This provision shall control every
other provision of all agreements between Borrowers or either of them and
Lender.
9.11 Lender shall have the unrestricted right at any time or
from time to time, and without the consent of or notice to Borrowers or either
of them, to assign all or any portion of its rights and obligations hereunder to
any other persons or entities (each, an "Assignee"), and each of the Borrowers
agrees that it shall execute, or cause to be executed such documents including,
without limitation, amendments to this Agreement and to any other documents,
instruments and agreements executed in connection herewith as Lender shall deem
necessary to effect the foregoing. In addition, at the request of the Lender and
any such Assignee, each of the Borrowers shall issue one or more new promissory
notes, as applicable, to any such Assignee and, if Lender has retained any of
its rights and obligations hereunder following such assignment, to Lender, which
new promissory notes shall be issued in replacement of, but not in discharge of,
the liability evidenced by the promissory note held by Lender prior to such
assignment and shall reflect the amount of the respective commitments and loans
held by such Assignee and Lender after giving effect to such assignment. Upon
the execution and delivery of appropriate assignment documentation, amendments
and any other documentation required by Lender in connection with such
assignment, and the payment by Assignee of the purchase price agreed to by
Lender and such Assignee, such Assignee shall be a party to this Agreement and
shall have all of the rights and obligations of Lender hereunder (and under any
and all other guaranties, documents, instruments and agreements executed in
connection herewith) to the extent that such rights and obligations have been
assigned by Lender pursuant to the assignment documentation between Lender and
such Assignee, and Lender shall be released from its obligations hereunder and
thereunder to a corresponding extent.
19
9.12 Lender shall have the unrestricted right at any time and
from time to time, and without the consent of or notice to Borrowers or either
of them, to grant to any other persons or entities (each a "Participant")
participating interests in Lender's obligations to lend hereunder and/or any or
all of the loans held by Lender hereunder. In the event of any such grant by
Lender of a participating interest to a Participant, whether or not upon notice
to Borrowers or either of them, Lender shall remain responsible for the
performance of its obligations hereunder and each of the Borrowers shall
continue to deal solely and directly with Lender in connection with Lender's
rights and obligations hereunder. Lender may furnish any information concerning
Borrowers and each of them in its possession from time to time to prospective
Assignees and Participants, provided that Lender shall require any such
prospective Assignee or Participant to maintain the confidentiality of such
information.
9.13 Each of the Borrowers hereby grants to Lender a lien,
security interest and right of setoff as security for all liabilities and
obligations to Lender, whether now existing or hereafter arising, upon and
against all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of Lender or any entity under the
control of Lender and its successors and assigns, or in transit to any of them.
At any time from and after the occurrence of an Event of Default, without demand
or notice, Lender may setoff the same or any part thereof and apply the same to
any liability or obligation of Borrowers or either of them even though unmatured
and regardless of the adequacy of any other collateral securing the Loan. ANY
AND ALL RIGHTS TO REQUIRE LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT
TO ANY OTHER COLLATERAL WHICH SECURED THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWERS
OR EITHER OF THEM OR ANY GUARANTOR ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED.
9.14 Upon receipt of an affidavit by an officer of Lender as
to the loss, theft, destruction or mutilation of the Note(s) or any other
security document which is not of public record, Borrowers and each of them will
issue, in lieu thereof, a replacement Note(s) or other security document in the
same principal amount thereof and otherwise of like tenor.
9.14 Each reference to Borrowers shall be construed in the
masculine, feminine, neuter, singular or plural as the context may require, and
shall be deemed to include the legal successors and assigns of Borrowers and
each of them, all of which shall be bound by the provisions hereof. The
obligations of the Borrowers under this Loan Agreement and each of the Loan and
Security Documents shall be joint and several.
20
9.15 The section headings are included for convenience only
and shall not be deemed to be a part of this Agreement.
10. TERM OF AGREEMENT
The term of this Agreement shall commence on the date hereof and shall
continue in full force and effect and be binding upon Borrowers and each of them
until all Obligations shall have been fully paid and satisfied; provided,
however, that the indemnification provisions of SECTION 7.5 hereof shall survive
termination of the Loan and repayment, satisfaction and discharge of the
Obligations.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
WITNESS: XXXXXXXX TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxx, Xx.
-------------------------------- ----------------------------------------
Title: President
WITNESS: SECURITY TECHNOLOGY, INC.
By: /s/ Xxxxxxx Xxxxx, Xx.
-------------------------------- ----------------------------------------
Title: President
WITNESS: BAY VIEW CAPITAL L.L.C.
By: /s/ Xxxxxx Xxxxxx
-------------------------------- ----------------------------------------
Title: President
21
LIST OF EXHIBITS AND SCHEDULES
------------------------------
Exhibit A - Note
Schedule 2.4- Pending or Threatened Claims
Schedule 2.5- Existing Liens
Schedule 7.1.5 - Hazardous Materials
SCHEDULE 7.1.5
--------------
HAZARDOUS MATERIALS
-------------------
None.
