EXHIBIT 10.15
MELF (MACHINERY AND EQUIPMENT LOAN FUND) TO XXXXXX CORPORATION #96-9-250
$500,000.00 LOAN
DATED AS OF NOVEMBER 3, 1998
BETWEEN XXXXXX CORPORATION AND THE COMMONWEALTH OF PENNSYLVANIA,
acting by and through the DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT
LOAN AGREEMENT
THIS LOAN AGREEMENT, MADE this 2nd day of November, 1998, effective as of
November 3, 1998, BY AND BETWEEN XXXXXX CORPORATION, a Delaware corporation ,
with offices at 000 Xxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, (the
"Borrower") and the COMMONWEALTH OF PENNSYLVANIA, acting by and through the
DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT, having its principal place of
business at Room 000 Xxxxx Xxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 (the
"Department").
WITNESSETH THAT:
WHEREAS, the Borrower has established an industrial development project on
a tract of land in Luzerne County, Pennsylvania (the "Project"); and
WHEREAS, in concert with the establishment of the Project, the Borrower
has purchased or intends to purchase certain machinery and equipment for use at
the Project as more fully described at Exhibit A and which is incorporated
herein by reference and made a part hereof (the "Equipment"); and
WHEREAS, pursuant to the authority granted the Department by virtue of the
Machinery and Equipment Loan Fund ("MELF') Act, Act 120 of 1988, P.L 1050 (the
"Act"), the Department has approved the Borrower's application (the
"Application") for a loan not to exceed the principal amount of $500,000 (the
"Loan") to be used exclusively to defray a part of the cost of purchasing the
Equipment (the "Cost"); and
WHEREAS, the Department is willing to make the Loan upon the terms and
subject to the conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto, in consideration of the mutual
promises herein contained and intending to be legally bound hereby, covenant and
agree as follows:
Section 1. The Loan. Subject to the conditions set forth herein, the
Department agrees to make the Loan to the Borrower for the purpose of defraying
a portion the Cost of purchasing the equipment described in Exhibit A.
Section 2. The Note. The Loan shall be evidenced by a note (the "Note") of
even date herewith given by the Borrower to the Department, the terms and
provisions of which are incorporated herein by reference thereto and made a part
hereof.
Section 3. The Security Documents.
a. The Security Agreement. Payment of the Note and satisfaction of all
obligations of the Borrower hereunder and under the Note shall be secured by a
perfected security interest in the equipment given by the Borrower to the
Department under a security agreement of even date
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herewith (the "Security Agreement"), the terms and provisions of which are
incorporated herein by reference thereto and made a part hereof. The Security
Agreement shall be dated the date of the Note and shall create a perfected first
lien upon the Equipment.
b. The Note, Security Agreement and this Agreement shall be referred to
herein collectively as the Loan Documents.
Section 4. Prepayments. Prepayments of the outstanding principal amount of
the Loan shall be as set forth in and governed by the terms of the Note.
Section 5. Representations and Warranties of the Borrower. To induce the
Department to enter into this Agreement and to make the Loan, the Borrower
represents and warrants that:
(a) the Borrower is a corporation, duly organized and validly existing and
in good standing under the laws of the State of Delaware and is qualified to do
business in the Commonwealth of Pennsylvania;
(b) the Borrower has all necessary corporate power and authority to
purchase, own, encumber and sell Borrower's property and to carry on Borrower's
business as now being conducted, and to carry out the transactions contemplated
by this Agreement;
(c) the execution and delivery of this Agreement, consummation of the
transactions herein contemplated and compliance with the terms and provisions
hereof and of the Note and Security Agreement will not conflict with, or result
in a breach of any of the terms, conditions or provisions of the Articles of
Incorporation or By-Laws of the Borrower or of any agreement, indenture or other
instrument to which the Borrower is a party or by which Borrower is bound or to
which Borrower or Borrower's property is subject, or constitute a default
thereunder, and will not result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever (except those created pursuant
hereto) upon any of the property of the Borrower pursuant to the terms of any
such agreement, indenture or other instrument;
(d) the execution, delivery and performance of this Agreement, the
performance of the transactions contemplated by the provisions hereof, and the
execution, issuance and delivery of the Note and the Security Agreement in
accordance with the provisions hereof have each been duly authorized by all
necessary corporate action on the part of the Borrower;
(e) this Agreement has been duly and validly executed and delivered by the
Borrower and constitutes a valid and legally binding obligation of the Borrower,
enforceable in accordance with the terms of this Agreement and the Note and
Security Agreement, when executed and delivered in accordance with the terms
thereof, will be valid and legally binding obligations of the Borrower,
enforceable in accordance with the respective terms of each;
(f) there is no material litigation or governmental proceeding pending or,
to the knowledge of the Borrower or Borrower's officers, threatened against the
Borrower other than
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that which has been previously disclosed to the Department in writing. If such
litigation or proceeding exists, Borrower shall set forth in an exhibit
information regarding the amount of the claim, the forum in which the claim was
filed, the date for the same, all of which shall be attached hereto and made a
part hereof;
(g) the Borrower has filed all required federal, state and local tax
returns and has paid all taxes shown on such returns as such taxes have become
due; and
(h) no consent or approval to the execution and performance of this
Agreement and the transactions contemplated hereby not already obtained is
required to be obtained by the Borrower from any governmental body, authority,
agency, court or other person or entity, public or private, other than the
Department.
All of the representations and warranties of the Borrower set forth herein
shall survive and continue until the Loan is paid in full and all of the
Borrower's obligations hereunder have been satisfied.
Section 6. General Conditions of Lending. The obligation of the Department
to make the Loan hereunder is subject to the fulfillment of the following
conditions by the Borrower to the satisfaction of the Department:
(a) concurrently with, or prior to, the disbursement of the Loan and dated
the date of such disbursement, the Borrower shall have furnished to the
Department in form and substance satisfactory to the Department's counsel a
favorable written opinion of Borrower's counsel;
(b) there shall have been delivered to the Department a certificate
executed by the Secretary of the Borrower, dated the date of the initial
disbursement under the Loan, setting forth the corporate action taken by the
Borrower in connection with the Loan and the authorization of the Borrower, or
authorized representatives of the Borrower to execute, deliver and perform
pursuant to the terms and conditions of this Agreement, and the execution by the
Borrower of the Note, the Security Agreement and all related documentation,
their By-Laws and Articles of Incorporation as the Department's counsel shall
deem appropriate;
(c) all legal matters incident or related to the Loan shall be in form and
substance satisfactory to counsel for the Department;
(d) the Note and the Security Agreement and related financing statements
shall have been duly executed and delivered to the Department or delivered for
recording, where appropriate; and
(e) compliance with such other conditions as shall be required by the
Department.
Section 7. Covenants of the Borrower. Until the Loan has been entirely
repaid and all of Borrower's obligations to the Department in connection
therewith and herewith have been satisfied, the Borrower hereby covenants that:
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(a) the Borrower shall use the proceeds of the Loan solely for the purpose
of defraying a portion of the Cost;
(b) the Borrower shall preserve Borrower's corporate existence, rights,
privileges and franchises, and maintain Borrower's good standing as a
corporation under the laws of Delaware;
(c) the Borrower shall comply with all laws, regulations and orders of any
court or governmental body having jurisdiction over the Project;
(d) the Borrower shall, upon request by the Department, provide financial
information and other information concerning Borrower in form reasonably
satisfactory to the Department, including at least the following:
(i) a certificate of an authorized officer of the Borrower setting
forth the number of employees and their respective job classifications (skilled,
semiskilled and unskilled) employed during the previous year at the Project; and
(ii) financial statements of the Borrower for its most recent fiscal year,
including its balance sheet and income statement;
(e) the Borrower shall comply with all of the terms and conditions of this
Agreement, the Note, and the Security Agreement;
(f) the Borrower shall not create any additional debt secured by the
Equipment;
(g) the Borrower shall not discriminate against any employee or against
any applicant for employment because of race, color, religious creed, national
origin, ancestry, sex or age (including, but not limited to, employment
upgrading, demotion or transfer, recruitment or recruitment advertising, layoff
or termination, rates of pay or other forms of compensation, and selection for
training, including apprenticeship). The Borrower hereby accepts and agrees to
be bound by the nondiscrimination provisions as set forth in Exhibit "B"
attached hereto;
(h) the Borrower shall comply with the contractor integrity provisions as
set forth in Exhibit "C" attached hereto;
(i) the Borrower shall comply with the contractor responsibility
provisions as set forth in Exhibit "1)" attached hereto;
(j) the Borrower shall pay all the costs of filing financing statements
and any other costs that may be incurred pursuant to the closing and
administration of the Loan;
(k) the Borrower shall provide proper facilities at all times for
inspection of the Equipment by the Department and its authorized
representatives, and shall afford full and free access to the Project to such
persons as may from time to time be designated by the Department;
(l) without the Prior written consent of the Department, the Borrower
shall not (i) change its name, merge, consolidate or divide, or (ii) sell,
transfer, assign, lease or otherwise
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convey or dispose of all or any material part of its assets, except in the
ordinary course of business;
(m) the Borrower shall comply with the Americans With Disabilities Act
Provisions as set forth in Exhibit "E" attached hereto; and
(n) the Borrower shall provide the Department yearly with the Borrower's
current 10K filing with Securities and Exchange Commission.
(o) the Borrower shall create 31 new full-time equivalent jobs (one
full-time equivalent job is 1,950 hours of employment per year), as specified in
Borrower's Application within three years from the date of this Agreement over
and above the existing 901.3 full-time equivalent jobs that existed at the time
Borrower submitted its Application to the Department.
Section 8. Events of Default. The following shall each constitute an event
of default hereunder (an "Event of Default"):
(a) The Borrower shall fail to pay when due any amount payable under any
of the Loan Documents (including, without limitation, any installment of
principal or interest under the Note), and such failure shall continue for a
period of thirty (30) days;
(b) any representation or warranty made herein, in the application to the
Department made by the Borrower in connection with the Loan, or in any
certificate or financial or other statement furnished pursuant to the provisions
hereof or as a part of such application, shall have been false or misleading in
any material respect as of the time made or furnished;
(c) the Borrower shall (i) become insolvent, (ii) admit Borrower's
inability to pay Borrower's debts as they come due, (iii) make an assignment to
the benefit of Borrower's creditors, (iv) be adjudicated bankrupt or insolvent,
(v) voluntarily initiate proceedings under any bankruptcy or reorganization law
either now or hereafter in effect, (vi) become the subject of any involuntary
proceedings under any bankruptcy or reorganization law either now or hereafter
in effect that shall not have been discharged within sixty (60) days of the
initiation thereof, or (vii) seek to take advantage of any moratorium law either
now or hereafter in effect;
(d) a receiver, liquidator or trustee shall be appointed for the Borrower
and shall not have been discharged within sixty (60) days;
(e) a default or an event of default under the Security Agreement or the
Note, or, any other instrument relating to the Loan shall occur or be continuing
and such default shall not be remedied for a period of thirty (30) days after
the giving of written notice thereof to the Borrower by the Department; or
(f) the Borrower shall fail to perform any other covenant, condition or
provision hereof or of any of the Loan Documents and such failure shall not be
remedied for a period of thirty (30) days after the giving of written notice
thereof to the Borrower by the Department.
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Immediately and without prior notice to the Borrower, upon the occurrence of an
Event of Default hereunder, the Department, or any subsequent holder of the
Note, may declare the Note and interest accrued thereon and all liabilities of
the Borrower thereunder, to be immediately due and payable, and the same shall
thereupon become and be due and payable, without presentment, demand, protest or
notice of any kind to the Borrower, all of which are hereby expressly and
knowingly waived. In addition, upon the occurrence of an Event of Default
hereunder, the Department shall have the right to raise the rate of interest on
the Loan up to twelve and one-half percent (12 1/2%) per annum, applied
retroactively to the date of the first occurrence of the default until such time
as the default is cured.
Section 9. Failure to Create Jobs. Upon the occurrence of an Event of
Default based solely on the Borrower's failure to create the number of
employment opportunities or jobs specified in Borrower's application, the
Department shall have the right to increase the interest rate to the greater of
12-1/2% per annum or two percentage points greater than the prime interest rate
(as defined in the Note), unless such an increase is waived by the Department
because the failure to meet the job projections is deemed to be the result of
circumstances beyond the control of the Borrower.
Section 10. Miscellaneous. The terms of the Loan Documents shall be
construed liberally in favor of the Department to effectuate the purposes
hereof. No delay or failure on the part of the Department in exercising any
right, power or privilege hereunder shall affect such right, power or privilege;
nor shall any single or partial exercise thereof or any abandonment, waiver, or
discontinuance of steps to enforce such a right, power or privilege preclude any
other or further exercise thereof, or the exercise of any other right, power or
privilege. The rights and remedies of the Department hereunder are cumulative
and concurrent and not exclusive of any rights or remedies which the Department
might otherwise have. The Department shall have the right at all times to
enforce the provisions of this Agreement, the Note, the Security Agreement, and
all related documentation in strict accordance with the terms hereof and
thereof, notwithstanding any conduct or custom on the part of the Department in
refraining from so doing at any time or times. The failure of the Department at
any time or times to enforce the Department's rights under such provisions,
strictly in accordance with the same, shall not be construed as having created a
custom in any way or manner contrary to specific provisions of this Agreement or
any such documentation or as having in any way or manner modified or waived the
same.
Section 11. Writing Required. Any permit, consent or approval of any kind
or character on the part of the Department under this Agreement, and any waiver
of any provision or condition of this Agreement, must be in writing and executed
by the Department and shall be effective only to the extent specifically set
forth in such writing.
Section 12. Duration of Covenants. All covenants and agreements of the
Borrower contained herein or made in writing in connection herewith shall
survive and continue until the Loan is entirely paid and all of the Borrower's
obligations hereunder have been entirely satisfied.
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Section 13. Pennsylvania Law to Govern. This Agreement, the Commitment
Letter dated June 5, 1997, the Note, and the Security Agreement and all other
agreements delivered pursuant hereto shall be deemed to be contracts made under
the laws of the Commonwealth of Pennsylvania and, for all purposes, shall be
construed in accordance with the laws of such Commonwealth.
Section 14. Counterparts. This Agreement may be executed in as many
counterparts as may be deemed necessary and convenient and each of which, when
so executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
Section 15. Complete Agreement. This Agreement, the Note, and the Security
Agreement constitute the entire agreement between the Department and the
Borrower. The Loan Documents supersede and replace all prior agreements related
to the subject matter thereof. Such instruments may be modified or amended only
by a written instrument duly executed by the Department and the Borrower.
Section 16. Notices. Notices required hereunder, or any correspondence
concerning this Agreement shall be directed to the following addresses and shall
be deemed properly given (a) if delivered by hand, (b) if sent by certified
mail, return receipt requested, postage prepaid, or by recognized overnight
courier service (including, without limitation, Federal Express or United Parcel
Service overnight service), charges Prepaid; or (c) if sent by facsimile, with a
copy sent by first class U.S. Mail, postage prepaid.
To the Department:
PENNSYLVANIA DEPARTMENT OF COMMUNITY
AND ECONOMIC DEVELOPMENT
000 Xxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
FAX: (000) 000-0000
Attention: Machinery and Equipment Loan Fund
To Borrower:
XXXXXX CORPORATION, SEMICONDUCTOR SECTOR
000 Xxxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Plant Manager
And simultaneously to:
XXXXXX CORPORATION, SEMICONDUCTOR SECTOR
0000 Xxxx Xxx Xx., X.X.
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Xxxx Xxx, Xxxxxxx 00000
Attention: Vice President-Counsel
Notices and communications hereunder shall be deemed sufficiently given when
dispatched pursuant to the foregoing provisions. Notices and communications
delivered by hand shall be effective upon receipt; notices and communications
sent by fax, with a copy by first class U.S. Mail, shall be effective upon
dispatch; notices and communications sent by recognized overnight courier
service shall be effective on the business day following dispatch; and notices
sent by certified mail shall be effective on the third business day following
dispatch. The parties hereto may, by a notice given hereunder, designate any
further or different addresses to which any subsequent notice or communication
hereunder shall be sent.
Section 17. Severability. The terms and provisions of this Agreement are
severable. The unenforceability or invalidity of any one or more of the terms,
covenants, conditions or provisions of this Agreement under federal, state or
other applicable law shall not render any other term, covenant, condition or
provision hereof unenforceable or invalid.
Section 18. Under Seal. This Agreement shall take effect as an instrument
under seal.
Section 19. Further Assurances. The Borrower, from time to time, shall
execute such further instruments as the Department may reasonably request to
further confirm and assure the interests and rights created or intended to be
created in favor of the Department hereunder or under the Security Agreement or
the Note.
Section 20. Successors and Assigns. This Agreement and each of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower, the
Department and their respective successors and assigns, except that the Borrower
may not assign or transfer its rights hereunder or thereunder without the prior
written consent of the Department. The parties do not intend the benefits of
this Agreement to inure to any third party. No portion of the Department's
commitment to make the Loan will, at any time, be subject to attachment or levy
by any creditor of the Borrower or by any contractor, subcontractor, materialman
or supplier or any creditor of any such contractor, subcontractor, materialman
or supplier. Notwithstanding anything contained herein or in the Note, the
Security Agreement, or any other document executed in connection with this
transaction, or any conduct or course of conduct by any of the parties hereto,
before or after signing this Agreement or any of the other aforesaid documents,
this Agreement shall not be construed as creating any rights, claims, or causes
of action against the Department, in favor of any contractor, subcontractor,
supplier of labor or materials, or any of their respective creditors, or any
other person or entity other than the Borrower.
Section 21. Setoff. The Borrower agrees that the Commonwealth of
Pennsylvania may set off the amount of any state tax liability or other debt of
the Borrower or its respective subsidiaries that is owed to the Commonwealth and
not being contested on appeal against any payments due the Borrower under this
or any other contract with the Commonwealth.
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Section 22. Consent to Jurisdiction. Borrower hereby irrevocably (a)
agrees that any suit, action or other legal proceeding arising out of or
relating to this Agreement or the Loan Documents may be brought in any federal
or state court located in or whose district includes Harrisburg, Pennsylvania or
the county wherein the Project is located and consents to the jurisdiction of
such court in any such suit, action or proceeding, and (b) waives any objection
which it may have to the laying of venue of any such suit, action or proceeding
in any such court and any claim that any such suit, action or proceeding has
been brought in an inconvenient forum. The Borrower hereby irrevocably consents
to the service of any and all process in any such suit, action or proceeding by
mailing of copies of such process to the Borrower at its address provided under
or pursuant to Section 15. The Borrower agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided bylaw. All
mailings under this section shall be by certified or registered mail, return
receipt requested. Nothing in this section shall affect the right of the
Department to serve legal process in any other manner permitted by law or affect
the right of the Department to bring any suit, action or proceeding against the
Borrower or Borrower's property in the courts of any other jurisdiction.
Section 23. Incorporation by Reference. All exhibits to this Agreement and
the terms of all Loan Documents shall be incorporated herein by reference as
though expressly set forth herein.
Section 24. Descriptive Headings. Descriptive headings of the several
Sections of each of the Loan Documents are intended for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
WITNESS: COMMONWEALTH OF PENNSYLVANIA,
acting by and through the DEPARTMENT OF
COMMUNITY AND ECONOMIC DEVELOPMENT
/s/ Xxxx Xxxxxxx By [illegible]
-------------------------- ---------------------------------
Deputy Secretary
(OFFICIAL SEAL)
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ATTEST: XXXXXX CORPORATION SEMICONDUCTOR SECTOR
/s/ Xxxxxxx X. Xxxxxxxxx By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------- ---------------------------------
Secretary Sector President
(CORPORATE SEAL)
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EXHIBIT "A"
EQUIPMENT
Debtor's "Equipment" - The machinery, equipment and other tangible
personal property listed below, and all parts, replacements, additions and
accessions thereto, any proceeds of sale or disposition thereof and any proceeds
of insurance thereon or condemnation thereof.
THE EQUIPMENT SCHEDULE
TYPE OF EQUIPMENT VENDOR/MANUFACTURER MODEL NO/SERIAL NO.
----------------- ------------------- -------------------
Chemical vapor deposition Novellus Systems, Inc. Concept One-200 Maxus 96-
system 24-2151
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EXHIBIT "B"
NONDISCRIMINATION CLAUSE
During the term of this contract, the Borrower agree as follows:
1. the Borrower shall not discriminate against any employee, applicant for
employment, independent contractor or any other person because of race, color,
religious creed, ancestry, national origin, age or sex. The Borrower shall take
affirmative action to insure that applicants are employed, and that employes or
agents are treated during employment, without regard to their race, color,
religious creed, ancestry, national origin, age or sex. Such affirmative action
shall include, but is not limited to: employment, upgrading, demotion or
transfer, recruitment or recruitment advertising; layoff or termination; rates
of pay or other forms of compensation; and selection for training. The Borrower
shall post in conspicuous places, available to employes, agents, applicants for
employment and other persons, a notice to be provided by the contracting agency
setting forth the provisions of this nondiscrimination clause.
2. the Borrower shall in advertisements or requests for employment placed
by it or on its behalf state that all qualified applicants will receive
consideration for employment without regard to race, color, religious creed,
ancestry, national origin, age, or sex.
3. the Borrower shall send each labor union or workers' representative
with which they have a collective bargaining agreement or other contract or
understanding, a notice advising said labor union or workers' representative of
their commitment to this nondiscrimination clause. Similar notice shall be sent
to every other source of recruitment regularly utilized by the Borrower.
4. it shall be no defense to a finding of noncompliance with this
nondiscrimination clause that the Borrower had delegated some of its employment
practices to any union, training program or other source of recruitment which
prevents it from meeting its obligations. However, if the evidence indicates
that the Borrower was not on notice of the third-party discrimination or made a
good faith effort to correct it, such factor shall be considered in mitigation
in determining appropriate sanctions.
5. where the practices of a union or of any training program or other
source of recruitment will result in the exclusion of minority group persons, so
that the Borrower will be unable to meet its obligations under this
nondiscrimination clause, the Borrower shall then employ and fill vacancies
through other nondiscriminatory employment procedures.
6. the Borrower shall comply with all state and federal laws prohibiting
discrimination in hiring or employment opportunities. In the event of the
Borrower's noncompliance with the nondiscrimination clause of this contract or
with any such laws, this contract may be terminated or suspended, in whole or in
part, and the Borrower may be declared temporarily ineligible for further
Commonwealth contracts, and other sanctions may be imposed and remedies invoked.
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7. the Borrower shall furnish all necessary employment documents and
records to, and permit access to its books, records and accounts by, the
contracting agency and the Office of Administration, Bureau of Affirmative
Action, for purposes of investigation to ascertain compliance with the
provisions of this clause. If the Borrower does not possess documents or records
reflecting the necessary information requested, it shall furnish such
information on reporting forms supplied by the contracting agency or the Bureau
of Affirmative Action.
8. the Borrower shall actively recruit minority subcontractors or
subcontractors with substantial minority representation among its employes.
9. the Borrower shall include the provisions of this nondiscrimination
clause in every subcontract, so that such provisions will be binding upon each
subcontractor.
10. the Borrower obligations under this clause are limited to the
Borrower's facilities within Pennsylvania or, where the contract is for purchase
of goods manufactured outside of Pennsylvania, the facilities at which such
goods are actually produced.
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EXHIBIT "C"
CONTRACTOR INTEGRITY PROVISIONS
1. Definitions.
a. Confidential information means information that is not public
knowledge, or available to the public on request, disclosure of which would give
an unfair, unethical, or illegal advantage to another desiring to contract with
the Commonwealth.
b. Consent means written permission signed by a duly authorized officer or
employee of the Commonwealth, provided that where the material facts have been
disclosed, in writing, by prequalification, bid, proposal, or contractual terms,
the Commonwealth shall be deemed to have consented by virtue of execution of
this Agreement.
c. Commonwealth means the Commonwealth of Pennsylvania Acting by and
Through its Department of Community and Economic Development and any agencies
and instrumentalities of the Commonwealth of Pennsylvania for which the
Department of Community and Economic Development provides staff services
(including without limitation the Pennsylvania Industrial Development Authority,
Pennsylvania Economic Development Financing Authority, Pennsylvania Energy
Development Authority, and Pennsylvania Minority Business Development
Authority).
d. Contractor means the individual or entity that has entered into an
agreement with the Commonwealth, assumed the obligations of another to repay
moneys to the Commonwealth, or is the intended beneficiary of, and has knowingly
received benefits under, an agreement between the Commonwealth and a financial
intermediary or educational institution, including directors, officers,
partners, managers, key employees, and owners of more than a 5% interest.
e. Financial Interest means:
(1) ownership of more than a 5% interest in any business; or
(2) holding a position as an officer, director, trustee, partner,
employee, or the like, or holding any position of management.
f. Gratuity means any payment of more than nominal monetary value in the
form of cash, travel, entertainment, gifts, meals, lodging, loans,
subscriptions, advances, deposits of money, services, employment, or contracts
of any kind.
2. The Contractor shall take no action in violation of state or federal
laws, regulations, or other requirements that govern contracting with the
Commonwealth.
3. The Contractor shall not, in connection with this or any other
agreement with the Commonwealth, directly or indirectly offer, confer, or agree
to confer any pecuniary benefit on
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anyone as consideration for the decision, opinion, recommendation, vote, other
exercise of discretion, or violation of a known legal duty by any officer or
employee of the Commonwealth.
4. The Contractor shall not, in connection with this or any other
agreement with the Commonwealth, directly or indirectly offer, give, or agree or
promise to give to anyone any gratuity for the benefit of or at the direction or
request of any officer or employee of the Commonwealth.
5. Except with the consent of the Commonwealth, the Contractor shall not
have a financial interest in any other contractor, subcontractor, or supplier
providing services, labor, or material on this project.
6. The Contractor, upon being informed that any violation of these
provisions has occurred or may occur, shall immediately notify the Commonwealth
in writing.
7. The Contractor, by execution of this Agreement and by the submission of
any bills or invoices for payment pursuant thereto, certifies and represents
that he has not violated any of these provisions.
8. The Contractor, upon the inquiry or request of the Inspector General of
the Commonwealth or any of that official's agents or representatives, shall
provide, or if appropriate, make promptly available for inspection or copying,
any information of any type or form relevant to the Contractor's compliance with
this Agreement (including without limitation these provisions relating to
Contractor integrity). Such information shall be retained by the Contractor for
a period of three years beyond the termination of the contract unless provided
bylaw.
9. For violation of any of the above provisions, the Commonwealth may
declare an event of default hereunder, subject to applicable notice and cure
provisions, and debar and suspend the Contractor from doing business with the
Commonwealth, including without limitation participation in its financial
assistance programs. These rights and remedies are cumulative, and the use or
nonuse of any one shall not preclude the use of all or any other. These rights
and remedies are in addition to those the Commonwealth may have under law,
statute, regulation, or otherwise.
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EXHIBIT "D"
CONTRACTOR RESPONSIBILITY PROVISIONS
1. The Contractor certifies that it is not currently under suspension or
debarment by the Commonwealth, any other state, or the federal government, and
if the Contractor cannot so certify, then it agrees to submit along with the
bid/proposal a written explanation of why such certification cannot be made.
2. If the Contractor enters into any subcontracts or employs under this
contract any subcontractors/individuals who are currently suspended or debarred
by the Commonwealth or the federal government or who become suspended or
debarred by the Commonwealth or federal government during the term of this
contract or any extensions or renewals thereof, the Commonwealth shall have the
right to require the Contractor to terminate such subcontracts or employment.
3. The Contractor agrees to reimburse the Commonwealth for the reasonable
costs of investigation incurred by the Office of Inspector General for
investigations of the Contractor's compliance with terms of this or any other
agreement between the Contractor and the Commonwealth which result in the
suspension or debarment of the Contractor. Such costs shall include, but not be
limited to, salaries of investigators, including overtime; travel and lodging
expenses; and expert witness and documentary fees. The Contractor shall not be
responsible for investigative costs for investigations which do not result in
the Contractor's suspension or debarment.
4. The Contractor may obtain the current list of suspended and debarred
contractors by contacting the:
Department of General Services
Office of Chief Counsel
000 Xxxxx Xxxxxx Xxxxxxxx
Xxxxxxxxxx, XX 00000
Telephone No. (000) 000-0000
Fax No. (000) 000-0000
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EXHIBIT "E"
AMERICANS WITH DISABILITIES ACT PROVISIONS
During the term of this contract, the Contractor agrees as follows:
1. Pursuant to federal regulations promulgated under the authority of The
Americans With Disabilities Act, 28 C.F.R. ss.35.101 et seq., the Contractor
understands and agrees that no individual with a disability shall, on the basis
of the disability, be excluded from participation in this contract or from
activities provided for under this contract. As a condition of accepting and
executing this contract, the Contractor agrees to comply with the "General
Prohibitions Against Discrimination," 28 C.F.R. ss.35.130, and all other
regulations promulgated under Title II of The Americans With Disabilities Act
which are applicable to the benefits, services, programs, and activities
provided by the Commonwealth of Pennsylvania through contracts with outside
contractors.
2. The Contractor shall be responsible for and agrees to indemnify and
hold harmless the Commonwealth of Pennsylvania from all losses, damages,
expenses, claims, demands, suits, and actions brought by any party against the
Commonwealth of Pennsylvania as a result of the Contractor's failure to comply
with the provisions of paragraph 1 above.
3. "Contractor" means the individual or entity that has entered into this
Agreement with the Commonwealth.
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NOTE
Dated: November 3, 1998
At Luzerne County, Pennsylvania
$500,000
FOR VALUE RECEIVED, the undersigned XXXXXX CORPORATION, a corporation
organized and existing under and by virtue of the laws of the State of Delaware
with an address at 000 Xxxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 (the
"Maker"), does hereby irrevocably promise to pay, without defalcation, to the
order of the COMMONWEALTH OF PENNSYLVANIA acting through the Department of
Community and Economic Development (the "Department'), at the latter's principal
office in Harrisburg, Pennsylvania or at such other places as the Department may
designate, the principal sum of Five Hundred Thousand Dollars ($500,000), or so
much thereof as shall be disbursed to the Maker hereunder (the "Loan'), together
with interest as provided below, in lawful money of the United States of
America, payable as directed by the Department in monthly installments, a
portion of which will be interest at the rate of three and three quarter percent
(3.75%) per annum on the outstanding principal balance calculated on the basis
of a 360 day year, and a portion of which will be a payment of principal. The
monthly payments will commence on January 1, 1999, and the entire unpaid balance
due will be paid on or before December 1, 2005. Failure to draw down the full
amount of the Loan or prepayment of the Loan may cause a change in the
amortization of the Loan either by a reduction in the amount of each monthly
installment or by a reduction in the term over which the Loan shall be repaid.
All payments made hereunder shall be paid into the Machinery and Equipment Loan
Fund.
Interest on the outstanding principal balance will accrue from and
including the date of this Note and such interest as accrues through November
30, 1998 shall be due and payable on the first day of December, 1998, in
addition to the first monthly installment of principal and interest. The monthly
installments shall be applied first to interest on the unpaid principal, and the
balance of said monthly installments shall be applied to principal. In addition,
in the event any monthly installment provided for herein shall not be paid when
due, the Maker agrees to pay a late charge of twelve and one half percent
(12-1/2%) per annum of any such overdue monthly installment to compensate the
Department for damages suffered because of Maker's failure to make prompt
payments.
This Note is executed and delivered pursuant to the Loan Agreement between
the Maker and the Department, dated of even date herewith, (the "Loan
Agreement'), and is subject to all the terms and conditions thereof, including
provisions for prepayment and the acceleration of the maturity hereof under
certain circumstances.
THE MAKER HEREBY COVENANTS AND AGREES AS FOLLOWS:
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1. All the terms, covenants, conditions and provisions of the Loan
Agreement are incorporated herein by reference and are made a part hereof, and
any breach or violation thereof shall constitute a breach or violation of this
Note.
2. Each of the following shall constitute an event of default hereunder
(an "Event of Default'): (a) Maker shall fail to pay any sum required to be paid
by the Maker under this Note, the Loan Agreement or the Security Agreement
within thirty (30) days after the same becomes due and payable; or (b) there is
an Event of Default as defined in the Loan Agreement. Upon the occurrence of an
Event of Default, at the discretion of the Department, the whole unpaid balance
of the principal indebtedness, together with all interest thereon and all other
sums due hereunder, shall become due and payable immediately without notice to
the Maker.
3. Upon declaring an Event of Default hereunder, the Department, in its
discretion, may increase the rate of interest under this Note to a rate not to
exceed the greater of twelve and one-half percent (12 1/2%) per annum or the
prime interest rate plus 2% per annum. If the Department increases the rate of
interest under this Note by reason of any Event of Default, the increased rate
of interest shall apply retroactively from the first date of the conduct giving
rise to the declaration of the Event of Default and continuing prospectively
until such Event of Default is cured. For purposes of this paragraph, the prime
interest rate shall be the highest rate known or declared to be prime as of the
first date of the conduct giving rise to the declaration of the Event of Default
or the date as of which job creation is measured by those banking institutions
then located within the Commonwealth of Pennsylvania with assets in excess of
Three Billion Dollars ($3,000,000,000), as the case may be. If the Department
increases the rate of interest under this Note pursuant to this paragraph
hereof, the unpaid additional interest accruing from the date or dates of
disbursement of the proceeds hereunder or from the date of the event giving rise
to the declaration of the Event of Default, as the case may be, to the date the
Department takes action to raise the rate of interest shall be payable
immediately upon the Department's taking action to raise the rate of interest
unless the Department shall otherwise permit.
Failure to create the number of jobs specified in Maker's Loan Application
which is incorporated herein by reference thereto and made a part hereof, shall
give the Department the right to increase the interest rate on the Loan to a
fixed interest rate equal to the greater of 121/2% per annum or two percentage
points greater than the prime interest rate, unless such an increase is waived
by the Department because the failure to meet the job projections is deemed to
be the result of circumstances beyond the control of the Maker.
4. THE FOLLOWING PARAGRAPH SETS FORTH A WARRANT OF AUTHORITY FOR AN
ATTORNEY TO CONFESS JUDGMENT AGAINST THE MAKER. IN GRANTING THIS WARRANT OF
ATTORNEY TO CONFESS JUDGMENT AGAINST THE MAKER. THE MAKER HEREBY KNOWINGLY,
INTENTIONALLY AND VOLUNTARILY, AND, ON THE ADVICE OF THE SEPARATE COUNSEL OF THE
MAKER UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE MAKER HAS OR MAY HAVE TO
PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE
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RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF
PENNSYLVANIA.
IF THE MAKER IS IN DEFAULT UNDER THE TERMS OF THIS NOTE AT THE EXPIRATION
OF THIRTY (30) DAYS AFTER WRITTEN NOTICE THEREOF TO THE MAKER THEN THE MAKER
HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF AN COURT OF RECORD IN
THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR FOR AND TO ENTER AND
CONFESS JUDGMENT AGAINST THE MAKER, AT ANY TIME OR TIMES AND AS OF ANY TERM, FOR
THE PRINCIPAL SUM ABOVE MENTIONED, WITH OR WITHOUT DECLARATION, WITH INTEREST
AND COSTS OF SUIT, WITHOUT STAY OF EXECUTION, AND WITH REASONABLE ATTORNEY'S
FEES. THE MAKER AGREES THAT ANY OF ITS PROPERTY MAY BE LEVIED UPON TO COLLECT
SAID) JUDGMENT AND MAY BE SOLD UPON A WRIT OF EXECUTION, AND HEREBY WAIVES AND
RELEASES ALL LAWS, NOW OR HEREAFTER IN FORCE RELATING TO EXEMPTION, APPRAISEMENT
OR STAY OF EXECUTION. THE AUTHORITY HEREBY GRANTED TO CONFESS JUDGMENT SHALL NOT
BE EXHAUSTED BY ANY EXERCISE THEREOF, BUT SHALL CONTINUE FROM TIME TO TIME AND
AT ALL TIMES UNTIL THE MAKER HAS PAID ALL SUMS REQUIRED TO BE PAID BY THE MAKER
UNDER THIS NOTE, THE LOAN AGREEMENT AND THE MORTGAGE AND HAS PERFORMED ALL OF
THE OTHER PROVISIONS HEREOF OR THEREOF TO BE PERFORMED BY THE MAKER.
IF MAKER WISHED TO CHALLENGE ANY JUDGMENT CONFESSED PURSUANT TO THIS
PARAGRAPH, IT SHALL DO SO ONLY BE FILING A PETITION TO OPEN THE JUDGMENT
PURSUANT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE RULE 2959. AS IN EFFECT FROM
TIME TO TIME, ("RULE 2959") AND SHALL NOT OTHERWISE INTERFERE (BY FILING ANY
CIVIL ACTION, XXXX IN EQUITY, OR OTHERWISE) WITH THE OPERATION OF THE JUDGMENT
GRANTED PURSUANT TO THIS SECTION. MAKER EXPRESSLY ACKNOWLEDGES THAT THE
PROCEDURE AVAILABLE TO IT THROUGH RULE 2959 WILL PROVIDE IT WITH A FULL AND FAIR
OPPORTUNITY TO BE HEARD AS TO ANY REASON WHY JUDGMENT SHOULD NOT BE ENTERED
AGAINST IT.
THE MAKER ACKNOWLEDGES THAT IT UNDERSTANDS THE MEANING AND EFFECT OF THE
CONFESSION CONTAINED IN THE FOREGOING PARAGRAPH. SPECIFICALLY, THE MAKER
UNDERSTANDS AMONG OTHER THINGS THAT (1) IT IS RELINQUISHING THE RIGHT TO HAVE
NOTICE EXCEPT AS PROVIDED HEREIN, AN OPPORTUNITY TO BE HEARD AND THE RIGHT TO
HAVE THE BURDEN OF PROOF OF DEFAULT REST ON THE DEPARTMENT PRIOR TO THE ENTRY OF
JUDGMENT. (2) THE ENTRY OF JUDGMENT MAY RESULT IN A LIEN ON ITS PROPERTY. (3) IT
WILL BEAR THE BURDEN AND EXPENSE OF ATTACKING THE JUDGMENT AND CHALLENGING
EXECUTION ON THE LIEN AND SALE OF PROPERTY COVERED THEREBY, AND (4) ENOUGH OF
ITS PROPERTY MAY BE
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TAKEN TO PAY THE PRINCIPAL AMOUNT, INTEREST COSTS AND ATTORNEY'S FEES.
5. Prepayments of the principal indebtedness may be made at any time,
without premium.
6. All of the covenants herein contained shall accrue to the benefit of
the successors and assigns, voluntary or involuntary, of the Department.
7. Demand, grace, presentment for payment, protest, notice of dishonor or
nonpayment and notice of the exercise of any option hereunder are hereby waived
by the Maker and all guarantors and endorsers hereof.
8. The remedies provided in this Note, the Loan Agreement and the Security
Agreement or otherwise available to the Department for the enforcement of the
payment of the principal sum together with interest and performance of the
covenants, conditions, and agreements, matters and things herein and therein
contained are cumulative and concurrent and may be pursued singly or
successively or together at the sole discretion of the Department, and may be
exercised from time to tune as often as occasion therefor shall occur until the
Department has been paid all sums due in full.
9. The terms and provisions of this Note are severable. The
unenforceability or invalidity of any one or more of the terms, covenants,
conditions or provisions of this Note under federal, state or other applicable
law shall not render any other term, covenant condition or provision hereunder
unenforceable or invalid. In the event any waiver by the Maker hereunder is
prohibited by law, including but not limited to the waiver of exemption from
execution, such waiver shall be and be deemed to be deleted herefrom.
10. Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Loan Agreement.
IN WITNESS WHEREOF, intending to be legally bound hereby, the Maker has
caused this Note to be duly executed, the day and year first above written.
ATTEST: XXXXXX CORPORATION
SEMICONDUCTOR SECTOR
/s/ Xxxxxxx X. Xxxxxxxxx By /s/ Xxxxxxx X. Xxxxxxxx
------------------------ -----------------------
Secretary Sector President
(CORPORATE SEAL)
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SECURITY AGREEMENT
GRANTING CLAUSE
XXXXXX CORPORATION, a Delaware corporation with offices at 000 Xxxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000, (hereinafter referred to as
`Debtor") grants to the COMMONWEALTH OF PENNSYLVANIA, acting through the
DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT (hereinafter referred as
"Department") a security interest in the machinery and equipment listed on
Exhibit "A" hereto and all parts, replacements, accessions and any proceeds of
insurance thereon (the "Collateral").
This Security Agreement secures payment to the Department of $500,000 as
provided in a Note executed by Debtor as Maker, the performance of Debtor's
obligations stated herein, and all other obligations (direct, indirect, primary,
secondary) of Debtor to the Department now or hereafter existing.
LOCATION AND USE OF COLLATERAL
Debtor represents and warrants that the Collateral will be used Primarily
for Debtor's business. Debtor is a corporation with offices at 000 Xxxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000. The Collateral is or will be located
at 000 Xxxxxxxxx Xxxx, Xxxxxxxxxxx xx Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000-0000.
Debtor will not permit any of the Collateral to be removed from Luzerne County
without the prior written consent of the Department.
The Collateral may be attached to real estate commonly known as 000
Xxxxxxxxx Xxxx, Xxxxxxxxxxx in Luzerne County, Pennsylvania, and the
manufacturing plant located or to be located there in such a manner as to become
a fixture and in that case the security interest created hereby will attach to
the fixtures. On demand of the Department, Debtor will furnish a written
disclaimer of any interest in the Collateral by any lessor of the real property.
The Proceeds of the obligation secured hereby will be used to purchase the
Collateral and the security interest will create, upon filing of financial
statements in the required offices, a perfected first lien upon the Collateral.
DEBTOR'S DUTIES
1. Debtor will not permit any lien or secured interest other than that
created hereby to attach to the Collateral nor permit the Collateral to be
levied upon, attached or seized, nor permit the Collateral to become an
accession to other goods. Debtor will defend the Collateral against the claims
and demands of all persons except the Department. Debtor will not lease or
dispose of the Collateral without the prior written consent of the Department.
Debtor will notify the Department at least 30 days in advance of its intention
to acquire the Collateral, and the location of the newly acquired Collateral.
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2. Debtor agrees to comply with all governmental regulations or statute
affecting the use of the Collateral and will not commit nor permit any act of
waste or injury to the Collateral nor use or permit use of the Collateral in any
unlawful manner. Debtor will keep the Collateral in good repair. The Department
may inspect the Collateral at reasonable times and intervals and may for this
purpose enter the premises upon which the Collateral is located upon reasonable
notice to Debtor.
3. Debtor will keep the Collateral continuously insured with such
carriers, and in such amount, and against such risks as shall be reasonably
satisfactory to the Department, with the loss payable clause in favor of the
Department All policies of insurance shall provide for thirty days' written
notice of cancellation to the Department, and the Department shall be furnished
with evidence of compliance with the foregoing provisions. In the event of loss,
the Department shall have full power to settle, adjust and collect any and all
of the proceeds from the insurance coverage on the Collateral which shall be
paid over to and shall at the Department's option pay such proceeds against the
Loan, purchase new Collateral or repair or restore the collateral. Debtor may
maintain this insurance coverage under its corporate wide "umbrella" insurance
coverage with its standard deductibles.
4. Debtor will pay before they become delinquent all taxes, or other
governments charges levied against the Collateral or its use, and all
assessments, including stock assessments, and will pay any tax which may be
levied on any obligation secured hereby.
5. Debtor will execute from time to time any financing statements or other
documents and do other acts considered by the Department to be appropriate to
perfect or protect the security interest and shall pay all costs and expenses
(including reasonable fees and expenses of counsel and filing fees) related to
the preparation and filing of any financing statements, continuation statements
or other documents related to the protect of the security interest.
6. Debtor shall notify the Department of the following events within sixty
(60) days of the date of their occurrence, regardless of whether Debtor has
received any required consent of the Department at or prior to said event:
structure;
(a) Change in Debtor's name, or in the case of an organization, its name,
identity or corporate structure;
(b) Change in Debtor's principal offices, place of business, notice
address, or residence; or
(c) Change in location of Collateral.
The giving of notice as required in this Section shall not act as a wavier of
any consent of the Department, required herein or in the Loan Documents, nor
shall it estop the Department from exercising or enforcing any of its rights or
remedies with respect to the occurrence of any such event without the required
consent.
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7. At its option, and without any obligation to do so the Department, may
pay any taxes, assessments, liens, security interest or other encumbrances at
any time placed against the Collateral, and may pay for insurance, repair and
preservation of Collateral and any necessary expenses, including reasonable
attorney fees, to protect the priorities of the Department's interests in the
Collateral and in exercising its rights and remedies on default. Any amount so
paid shall be repaid by Debtor and shall be part of the debt secured hereby.
8. Debtor agrees to indemnify and save harmless the Department from any
loss, or damage caused by the Collateral or its use and to immediately give
written notice to the Department of any loss or damage to, or loss of possession
of, the Collateral, occasioned by any cause whatsoever.
9. If the Collateral should become unsatisfactory to the Department or
deteriorate in market or actual value, Debtor shall promptly after demand reduce
the debt to the Department to the extent specified by it, or increase the
Collateral in sufficient amounts to fully collateralize the Department.
EVENTS OF DEFAULT
Time is of the Essence
Debtor shall be in default upon the happening of any of the following
events: (a) any failure to pay when due the principal and interest, insurance
premiums, and taxes (except if such taxes are being contested in good faith and
debtor has posted bond or some other form of security including, but not limited
to, an escrow account containing the full amount of the tax obligation) or other
obligations secured hereby and such failure shall continue for a period of
thirty (30) days; (b) any failure to perform or observe any term or agreement
herein; (c) any representation or warranty made by Debtor herein or any
financial statement given by Debtor to the Department as a basis for any
extension of credit secured hereby shall prove to have been incorrect in any
material respect, (d) if the Collateral shall be seized or levied upon under any
legal or governmental process against the Debtor or against the Collateral; or
if the Collateral is lost, stolen, substantially damaged, destroyed, or
unreasonably depreciates in value; or if any equity in the Collateral is
assigned without the written consent of the Department; or (e) if the Debtor
becomes insolvent, is the subject of any insolvency proceeding, has any property
placed in the control of a custodian, fails to maintain its corporate existence
in good standing, or if the Department believes that the prospect of payment or
performance under the Loan Documents is impaired.
REMEDIES ON DEFAULT
Upon default, the entire amount of the outstanding principal balance and
other charges and indebtedness secured hereby shall, at the option of the
Department, become due and payable at the expiration of thirty days. The
Department shall have the immediate right to pursue all remedies provided by
law, together with all rights provided in this agreement and in any notes
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secured by this agreement and in any other applicable security agreement or loan
agreement, all of which remedies and rights shall be cumulative to the extent
permitted.
The Department may require Debtor to assemble all or any part of the
Collateral and make it available to the Department at any place designated in a
notice sent to Debtor. Debtor agrees that the Department's place of business
shown on this agreement is a place reasonably convenient to it to assemble the
Collateral.
Debtor agrees that a notice sent to it by first class mail, or otherwise
in accordance with the notice provisions set forth in the Loan Agreement, thirty
days before the time of any public sale or the time after which any private sale
or other disposition of the Collateral is to be made, shall be deemed to be
reasonable notice of such sale or other disposition.
NON-WAIVER ADEQUATE NOTICE, AND PROHIBITION OF ORAL MODIFICATIONS
Notice to Debtor under the Note or his Agreement shall be deemed
sufficient if given in accordance with the notice provisions set forth in the
Loan Agreement. No failure or delay of the Department in exercising any right or
remedy shall be a waiver thereof, nor shall any single or partial exercise by
the Department of any right or remedy hereunder preclude any other or future
exercise of any other right or remedy. This Security Agreement shall be
interpreted in accordance with the laws of the Commonwealth of Pennsylvania. The
venue of any action brought upon this agreement, shall be Dauphin County, unless
the Department agrees in writing to another location. All the terms of this
Agreement shall inure to the benefit of and bind the successors and assignees of
the parties. This Agreement may be amended in writing only. Such amendment must
be executed by any party against whom enforcement of any waiver, modification or
discharge is sought.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of this 2nd day of November, 1998, effective as of November 3, 1998.
ATTEST: XXXXXX CORPORATION
SEMICONDUCTOR SECTOR
/s/ Xxxxxxx X. Xxxxxxxxx By /s/ Xxxxxxx X. Xxxxxxxx
------------------------ -----------------------
Secretary Sector President
(CORPORATE SEAL)
-4-
EXHIBIT "A"
Debtor's "Equipment" - The machinery, equipment and other tangible
personal property listed below, and all parts, replacements, additions and
accessions thereto, any proceeds of sale or disposition thereof and any proceeds
of insurance thereon or condemnation thereof.
THE EQUIPMENT SCHEDULE
TYPE OF EQUIPMENT VENDOR/MANUFACTURER MODEL NO/SERIAL NO.
----------------- ------------------- -------------------
Chemical vapor deposition Novellus Systems, Inc. Concept One-200 Maxus 96-
system 24-2151
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