EXHIBIT (10) g. (i)
LICENSE AGREEMENT
XXXXXX ENGINEERING, INC.
and
LUNAIRE LIMITED
This License Agreement is made this 18th day of
December, 1992, by and between XXXXXX ENGINEERING, INC., a NewJersey
corporation, having its principal place of business
at 0000 Xxxxxxxxxxx Xxxx, Xxxxx, Xxx Xxxxxx 00000 (referred
to as ``Licensor'') and LUNAIRE LIMITED, a Pennsylvania corporation,
having its principal place of business at 0000 Xxxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (referred to as "Licensee'').
Licensor has rights to certain manufacturing
processes and procedures and trademarks relating to environmental
xxxxxxxx and equipment, and has the right to grant a license andto deliver
technical assistance for the manufacture, use and sales
of said environmental xxxxxxxx and equipment. Licensee desires to
acquire a license and to receive technical assistance from the
Licensor to manufacture such products in the United States and to
use and sell such products throughout the world with the
exception of India (where Licensor already has in effectLicense agreement
with others).
In consideration of the mutual covenants containedherein and
intending
to be legally bound hereby, the parties
agree as follows:
1. Definitions. For purposes of this
Agreement, the following words shall have the meanings set forthbelow:
1.1 ``Licensee'' as used herein
includes all subsidiaries and affiliates ofLunaire Limited.
1.2 ``Licensed
Products'' or ``Products'' means: manufactured or developed by Licensor;
(b) those items constituting modifications
of the items referred to in subclause (a);
(c) any other items manufactured or
sold by Licensee bearing the ``Xxxxxx'' name; and
(d) those items which fall within any
of the categories enumerated on Exhibit `` A'' attached hereto,
manufactured by Licensee, regardless of the nameplate.
1.3 ``Data''
means information, whether in documentary
form or otherwise, which is possessed or available
to the Licensor relating to the Products including, without
limitation, engineering drawings, specifications, manufacturing
process and procedures, quality assurance procedures, computer programs
(excluding software licensed to Licensor by third
parties) and other compilations of information, but excludingsuch data that
may not be communicated without violating the legal
rights of any third parties.
1.4 ``Subsidiary''
means any company or other limited
liability organization more than 50% of the voting share
capital of which is owned or controlled by Licensor or Licensee,
as the case may be.
1.5 ``Affiliate'' means any corporation
directly or indirectly controlling, or under common control with
Licensor or Licensee, as the case may be.
2. License Grant.
2.1 Subject to the provisions of paragraph 2.3
below, Licensor hereby grants to Licensee the license to use
the data made available hereunder to manufacture the Products
in the United States, and the license to sell and lease the
Products throughout the world, with the exception of India.
2.2 The term ``Licensed Territory '' for
purposes of this Agreement shall mean the continental United
States when referring to the license to manufacture, and shallmean the
world, with the exception of India, when referring to the
license to sell and lease the Products.
2.3 Nothing in this Agreement shall preclude
Licensor, its subsidiaries and affiliates from using the data
directly in the manufacture and sale of the Products anywhere inthe world.
Licensor shall not, however, grant to any other person or entity
any rights or license to use the data or trademarks,
or to manufacture or sell the Products within North America or
Europe during the term of this Agreement. do not include the right to
sublicense to others without
the prior written consent of Licensor. However, Licensee (other
than its subsidiaries and affiliates) shall have the right of
sublicense to any subsidiary or affiliate of Licensee without
Licensor's prior written consent.
3. Modifications. The Licensee shall have the right
without any restriction to make and sell any
improvement, modification or changes (hereinafter `` enhancements'') to
the Products, including all variety ofinventions and innovations
developed by Licensee. The Licensee shall notify Licensor in writing of
all functional and materialenhancements introduced by the Licensee during
the term of thisAgreement.
4. Term. Unless sooner terminated as provided
herein, the term of this Agreement shall commence December 18,1992 and
conclude December 31, 1998.
5. Technical Assistance. Effective upon signing and during
the term of this Agreement, the Licensor shall make
available to Licensee all of its present data relating to the Products
including all existing improvements, modificationsand changes thereto.
6. Non-Disclosure. Licensee understands that the
data made available by the Licensor hereunder is confidential innature.
Licensee agrees not to disclose or make such data public
which is not generally published or lawfully available to third
parties, without the prior written consent of Licensor, and
further agrees to take all required measures to prevent any
acquisition, disposition or use of such data by any person,firm or
corporation not expressly authorized to receive such
information under the Agreement. Nothing herein shall prevent the
disclosure by the Licensee (1) to its suppliers of
specifications and technical information necessary to permit the supplier
to make parts and sub-assemblies to be used by Licensee in the
manufacture or repair of the Products; (2) toits customers to the extent
necessary for sales and fulfillment oforders; and (3) to its employees to
enable them to manufactureand service the Products. Licensee will secure
confidentiality
agreements with all suppliers and employees to whom confidential data
is disclosed.
7. Trademarks/Licensor's Name.
7.1 Licensor grants Licensee a
nonexclusive, non-transferrable, license for the term of theAgreement to
use the ``Xxxxxx'' registered trademark in connectionwith the Products.
Licensor represents that it has registered the trademark
with the U.S. Patent and Trademark Office and owns all right,
title and interest in and to the trademark. made name
``Xxxxxx Environmental'' in the conduct of its business relativeto its
manufacture and sale of Licensed Products throughout the
Licensed Territory.
7.3 A list of all other trademarks owned by
Licensor relating to each of the Products are set forth in
Exhibit ``B'' attached hereto and incorporated herein. The Licensor
hereby grants Licensee a nonexclusive, non-transferrable, license for the
term of the Agreement to use such trademarks in connection with the
Products throughout theLicensed Territory.
7.4 Licensee shall have the right to utilize
its own trademarks in connection with the Products and other
products which incorporate the data as long as such use is
consistent with the requirements set forth in this Agreement.
7.5 In the event Licensor and its
subsidiaries and affiliates no longer manufactures the Licensed
Products on December 1, 1998, Licensee shall have an option to acquire
all right, title and interest of Licensor touse thorughout the
Licensed Territory the ``Xxxxxx'' trade name and registered trademark
upon payment to Licensor of $100,000on or before December 31, 1998
subject, however, to the rightsalready granted by Licensor to the China
National Machinery Import and Export Corporation, Liaoning Testing
Equipment Fac
8. License Fees.
8.1 In consideration for the licenses
granted
hereunder, Licensee agrees to pay to Licensor a license
fee equal
to five percent (5%) of the net sales price (as
hereinafter
defined) of all Products manufactured and sold by
Licensee
pursuant to this Agreement, five percent (5%) of the
rental fees
on all Products manufactured and leased by Licensee
pursuant to
this Agreement, and five percent (5%) of all
installation and
training fees charged with respect to the Products
(except where
performed by Licensor), said payments to continue until
Licensor
has received $1,900,000, or until this Agreement
terminates
(subject to paragraph 8.4 hereof), whichever first
occurs. ``net sales
price'' shall mean Licensee's invoice
price to its customers and
any rent charged for leased Products to its customers,
less:
(a) separately stated charges (other
than for
installation and training) billed to the customer at
Licensee's
cost;
(b) product returns and allowances, to be
charged
to Licensor when made or allowed; and
(c) sales, excise or use taxes separately
stated
and paid as shown on the invoice.
8.3 Sales shall be deemed to have been
consummated, for
purposes of the license fee payments and reporting
hereunder, at
the time the customer is billed with respect to the
shipment of
the Products, or with respect to the rent due, as the
case may
be.
8.4 In the event the term of any lease extends
beyond
the termination date hereof, the amount billed for rent
accruing
both before and after such date shall be subject to such
license
fee, unless or until Licensor has received $1,900,000.
In the
event the customer exercises any option to purchase any
Licensed
Product, the amount payable by such customer, whether
before or
after termination of this Agreement, shall also be
subject to
such license fee, unless or until Licensor has
received
$1,900,000.
8.5 In the event any Products are
incorporated into
products performing additional functions or are
included in a
package transaction with other products, the license
fee to be
paid by the Licensee (a) in the case of Products
incorporated
into products performing additional functions,
shall be
determined by an equitable apportionment of the price
of such
products between the features represented by
Licensee's
technology, and the features represented by the
Products
incorporated therein, and (b) in the case of
package
transactions, shall be determined by an equitable
apportionment
of the price of each item included in the package.
8.6 The Licensee shall pay the license fee due
Licensor
within five (5) business days following the end of
each month
based upon all sales consummated during such month. Each
payment
will be accompanied by a report prepared in requirements set
forth in paragraph 10 below. Late
payments shall
be the subject of a service charge, for handling and
processing
the same, at one percent (1%) per month or portion
thereof that
such payment is past due; a payment shall be considered
past due
if not received by the Licensor by the tenth (10th)
calendar day
after the end of a calendar month.
8.7 No license fee shall be due to
Licensor with
respect to the sale of Licensee's existing products
which are
similar in nature to Licensor's Products, and which are
sold to
Licensee's customer under Licensee's name alone, except
as herein
specifically provided.
8.8 Should Licensee be unable to collect on its
invoice
with respect to the sale of a Licensed Product within
six (6)
months of submission of said invoice, Licensee will be
entitled
to a credit for the license fee previously paid to
Licensor with
respect to said sale. Should Licensee subsequently
collect monies
with respect to said invoice, it will pay to Licensor a
license
fee on the net amount collected.
9. Books and Records.
9.1 Licensee agrees to maintain complete,
accurate and
current books and records of all activities relating
to the
manufacture, purchase and sale of the Licensed
Products. The
books and records shall contain such underlying details
as are
necessary to determine and verify the license fees due
under this
Agreement.
9.2 Licensee shall make available to Licensor
and its
representatives any information reasonably
requested and
necessary or useful to establish the accuracy of the
books and
records or to determine the amount of license fees
due. Upon
Licensor's request and at its expense, Licensee will
provide
copies of such information.
9.3 Licensee agrees to maintain such books and
records
for a period of no less than four (4) years following the
fiscal
year to which they pertain.
10. Reports and Audit.
10.1 Licensee will submit to Licensor by
the 5th
business day following the end of each month a complete
report
setting forth:
(a) the gross and net sales price, and net
rental
payments, with respect to all Licensed Products sold
during the
month, including an itemization of deductions
pursuant to
paragraph 8.2 above; and
(b) the net license fee due.
10.2 In the event Licensor requests an audit
by an
independent accountant selected by Licensor to certify as
to the
payments and reports made by Licensee, the cost of
such audit
shall be borne by Licensor. If such audit reveals a
discrepancy
in excess of five percent (5%) of total net sales
reported for
the period(s) in question, Licensee shall pay the cost
of such
audit as well as the additional license fee due and
payable
(including service charges for late payment) within
twenty (20)
days following written notice of such
discrepancy. Any
discrepancy in Licensee's favor shall be remitted by
Licensor to
Licensee within twenty (20) days following completion
of the
audit.
11. Sales Activities and Service.
11.1 During the term of this Agreement,
Licensee shall
promote and sell the Products diligently and in good
faith in a
manner calculated to maximize the sales thereof.
11.2 Licensor shall promptly supply Licensee
with its
current sales literature relating to the Products.
11.3 In the event Licensor should be
unwilling or
unable to manufacture any one or more of the Products,
it shall
refer all prospective customers, inquiries and orders
for the
purchase of such Products to Licensee.
11.4 Licensor shall be responsible for all
warranties
and customer service on Products sold by it. Licensee
shall be
responsible for all warranties and customer service on
Products
sold by it.
12. Warranties.
12.1 Licensor warrants that it is the owner of
the data
and that it is entitled to license Licensee hereunder.
12.2 Licensee agrees to manufacture the
Products
utilizing Licensor's data or enhancements thereto, and
further
warrants that the workmanship and quality of the
Products
manufactured will be comparable to or exceed
Licensor's
workmanship and quality.
12.3 Licensee agrees to extend equipment
warranties to
purchasers of Products manufactured by Licensee on
terms and
conditions which equal or exceed Licensor's warranty as
set forth
in Exhibit `` C'' attached hereto
and incorporated herein.
13. Patent Protection.
13.1 Licensor does not have any current
patents
covering its data.
13.2 Licensor and Licensee agree with respect
to any
future developments that all costs, fees and expense
directly or
indirectly incurred or assessed to prosecute to
completion any
patent applications filed during the term of this
Agreement shall
be borne by the party responsible for the invention and
shall be
the sole property of said party.
13.3 Licensee shall not be entitled to
use any
enhancements, inventions, innovations, methodology or
other data
hereafter developed by Licensor with respect to the
Products.
13.4 Licensor shall not be entitled to
use any
enhancements, inventions, innovations, methodology or
other data
developed by Licensee with respect to the Products.
14. Infringment and Litigation.
14.1 Licensor will promptly notify Licensee
of any
infringement of the data or trademarks licensed
hereunder and
shall, at its own expense, take any action necessary to
end such
infringment and prosecute claims for damages, and
Licensor shall
be entitled to receive any recovery resulting therefrom.
Licensee
shall have the right, at its option, to join Licensor
in the
prosecution of any action to enjoin such infringment or
any claim
for damages, in which case the parties shall share
equally in the
expenses and each shall be allocated its proportionate
share of
the recovery resulting from such action or claim. If the
Licensor
for any reason fails to commence or prosecute any such
action
against an infringer, Licensee shall have the right to
bring such
action on its own behalf, in which action the Licensor
agrees to
cooperate, and the Licensee shall be entitled to
receive the
entire recovery resulting therefrom.
14.2 Each party shall promptly notify the
other in
writing in the event that a third party shall bring
claim of
infringement by the Licensed Products against the
Licensor or
Licensee, either in the United States or in any foreign
country.
If the alleged infringement is so substantial as to
threaten the
competitive position of Licensee and/or Licensee is
enjoined from
exercise of its license hereunder, in either such case,
Licensor
will defend against such claim and/or obtain a license to
permit
Licensee to exercise its license free of such claim.
15. Disclaimer of Liability.
15.1 The Licensor shall not have any liability
for any
of the Products manufactured and sold by the Licensee
pursuant to
this License. Licensee shall indemnify, defend and
hold the
Licensor harmless from and against any claim, demand,
cost, loss,
damage and expenses, including attorneys' fees, caused
by or
arising from workmanship or material of any of the
Products
manufactured or sold by the Licensee.
15.2 The Licensee shall not have any liability
for any
of the Products manufactured and sold by the Licensor.
Licensor
shall indemnify, defend and hold the Licensee harmless
from and
against any claim, demand, cost, loss, damage and
expenses,
including attorneys' fees, caused by or arising from
workmanship
or material of any of the Products manufactured or sold
by the
Licensor.
16. Termination
16.1 This Agreement may be terminated by
Licensee upon
default or breach by Licensor by giving Licensor written
notice
of intention to so terminate, which notice shall
specify the
default or breach. Such termination shall become
effective sixty
(60) days following receipt of such notice,
providing such
default or breach is not cured by Licensor prior thereto.
16.2 Licensor may terminate this Agreement
upon the
occurrence of an event of default as defined in
paragraph 16.3
hereof.
16.3 `` Event of
Default'' shall mean:
(a) failure of Licensee to make any
payment due
Licensor hereunder within fifteen (15) days after the
date such
payment shall be due;
(b) an other breach or default
under this
Agreement provided that Licensee shall not have cured
such breach
or default within thirty (30) days after receipt from
Licensor of
notice thereof;
(c) admission by Licensee in writing
of its
inability to meet its debts as they become due;
(d) the making by Licensee of any
composition with
its creditors or a general assignment for the benefit
of its
creditors;
(e) the commencement of any
voluntary or
involuntary bankruptcy, insolvency, reorganization,
liquidation,
or suspension of payments, proceedings involving Licensee
and the
same not being dismissed within thirty (30) days after
the date
of commencement; and
(f) other than by reason of death or
disability,
the failure of Xxxxxx X. Xxxxxx either to remain as
the Chief
Executive Officer of Licensee, or alternatively to be
directly or
indirectly in control of Licensee.
17. Option to Terminate.
17.1 Licensor shall have the option to
terminate this
Agreement effective March 31st of any year, upon sixty
(60) days
written notice, if Licensee has failed to pay
during the
preceding year the following Minimum License Fee:
During the Calendar Year Minimum License Fee
Required
1993 $160,000.00
1994 $200,000.00
1995 $300,000.00
1996 and thereafter $400,000.00
17.2 To the extent Licensee has paid License
Fees in
any year in excess of the Minimum License Fee
Required, said
excess will be treated as if paid in the following year.
17.3 Should Licensor exercise its option
hereunder,
this Agreement will be deemed to have terminated by
reason of
Licensee's default; provided, however, that Licensee may
remedy
its default, and retain all of its rights hereunder, by
paying to
Licensor within said sixty (60) day period a sum which
when added
to the License Fees actually paid during the year
equals the
Minimum License Fee Required for said year.
18. Rights After Termination.
18.1 In the event of termination of this
Agreement, as
a result of Licensee's default, all rights and licenses
granted
to Licensee hereunder shall cease, and Licensee shall
cease to
use all Data supplied by Licensor hereunder, other
than data
which is in the common domain, which was utilized by
Licensee
prior to this license or which was developed
independently of the
Data by Licensee since the grant of this license. Any
provisions
to the contrary notwithstanding, Licensee shall have
the right
for one (1) year from the date of termination to
complete the
manufacture and sale of those Licensed Products which,
at the
time of termination, are in the course of production and
to sell
or dispose of all Licensed Products then in its
inventory;
provided that Licensee shall pay to Licensor all fees
due or to
become due thereon in accordance with the terms
of this
Agreement.
18.2 If, at the time of termination,
Licensee has
performed all of the obligations required of it
hereunder, it
will be entitled to continue to use the Data in the
manufacture
of products that are competitive with the Licensed
Products;
provided said products are aesthetically different in
appearance
from, and incorporate enhancements, developed by Licensee
and at
its expense, to the underlying technology, efficiency
and/or
functions of, the Licensed Products as currently
manufactured by
Licensor.
18.3 Termination of this Agreement shall not
relieve
either party of any obligation to the other arising prior
to such
termination.
18.4 Upon termination (whether upon expiration
of the
term hereof or an Event of Default) of this Agreement,
in the
event Licensee shall not have exercised its rights
under
paragraph 7.5 and subject to the provisions of
paragraph 17.1,
Licensee shall cease use of the name ``Xxxxxx''
or
``Xxxxxx
Environmental'' , or any variant
thereof for trademark purposes,
for trade name purposes, as the name or part of the name
of any
corporation, or for any other purpose whatsoever.
19. Insurance. Licensee agrees to maintain in
effect a
products liability insurance policy in an amount not
less than
$3,000,000 covering all claims with respect to any
products
manufactured or sold within the terms of the license
granted
hereunder. The policy shall include Licensor as an
additionally
named insured. Licensee agrees to furnish a certificate
of such
insurance to Licensor on or before the date of the first
sale or
use of any products.
20. Material Purchases.
20.1 Licensee shall order and purchase from
Licensor
raw materials, and partially manufactured materials,
useable by
it in manufacturing Licensed Products. The price at
which said
materials will be purchased will be equal to Licensor's
invoice
cost. To the extent materials have been partially
manufactured,
Licensee will pay Licensor its invoice cost of the
materials plus
Licensor's labor hours expended valued at Licensee's
burdened
labor rate.
20.2 Licensee agrees that it will order not
less than
$500,000 of useable materials from Licensor within
ninety (90)
days of the execution of this Agreement, not less
than forty
percent (40%) of which will be ordered during the initial
thirty
(30) day period following the execution of this
Agreement.
Payment for such materials shall be due within thirty
(30) days
after each shipment.
21. Disclaimer of Agency. The Licensee is an
independent
contractor and nothing in this Agreement shall be
construed to
create an employer-employee, agency, joint venture or
partnership
relationship between the parties. Neither party has any
right or
authority to assume, create or incur any liability or
obligation
of any kind, express or implied, against or in the name
of or on
behalf of the other party.
22. Enforcement. The failure of either party at any
time or
from time to time to enforce or require performance of
any of the
provisions of this Agreement, or to exercise any right or
option
herein set forth, shall in no way be construed to be a
waiver of
that or any other provision of this Agreement or to
prevent or
limit the right of such party thereafter to enforce
each and
every such provison in strict accordance therewith. No
waiver by
either party of any default of the other party shall be
held to
be waiver of any other or subsequent default.
23. Notices. Any and all notices required or
permitted under
this Agreement shall be in writing and shall be
sent by
registered mail, or by other means which afford the
sender
evidence of delivery, to the respective parties at the
following
addresses unless and until a different address
has been
designated by written notice to the other party:
Licensor: Xxxxxx X. Xxxxxxxxx, President
Xxxxxx Engineering, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000
Licensee: Xxxxxx X. Xxxxxx, President
Lunaire Limited
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
24. Arbitration. All disputes arising under
and in
connection with this Agreement, or the
interpretation or
enforcement thereof, shall be decided by one (1)
arbitrator in an
arbitration proceeding conforming to the rules of the
American
Arbitration Association applicable to commercial
arbitrations.
The arbitrator shall be chosen by agreement of the
parties or, if
they cannot agree, then the arbitrator shall be appointed
by the
American Arbitration Association. The arbitration
shall take
place in Trenton, New Jersey, and the decision of the
arbitrator
shall be conclusively binding upon the parties. Such
decision
shall be nonappealable and enforceable as a judgment in
any court
of competent jurisdiction. The cost of the arbitration
shall be
borne in accordance with the award of the arbitrator,
otherwise
the parties shall share the cost equally.
25. Assignment. This Agreement shall not be
assignable by
either party without the prior written approval of
the other
party; provided, however, that Licensor or Licensee may
assign
any of its rights under this Agreement to any entity
controlled
by or affiliated with Licensor or Licensee, or any
entity which
is the successor by merger or purchase of substantially
all the
assets and business of Licensor or Licensee. To the
extent
assignable, this Agreement shall be binding upon and
inure to the
benefit of, the parties hereto, their successors and
assigns.
26. Governing Law. This Agreement shall be
construed and
enforced in accordance with the laws of the State of New
Jersey
except where federal laws of the United States and
foreign
countries are applicable and have precedence.
27. Entire Agreement. This Agreement constitutes the
entire
agreement and understanding between the parties with
respect to
the subject matter hereof and supersedes all
prior or
contemporaneous agreements, understandings,
representations and
warranties of the parties. This Agreement may not be
amended,
modified, altered or any of its provisions waived,
except in a
writing signed by the parties against whom enforcement is
sought.
28. Mutual Representations. Each person who
executes this
Agreement on behalf of a corporate party represents and
warrants
that the necessary corporate authorization to enter
into this
Agreement has been obtained.
29. Counterparts. This Agreement may be executed in
one or
more counterparts by one or all of the parties, each
of which
counterpart shall be an original and all of which
together shall
constitute a single agreement.
IN WITNESS WHEREOF, intending to be legally bound
hereby,
the parties have caused this License Agreement to be
executed on
the day and year first above written.
XXXXXX ENGINEERING, INC.
BY: s/Xxxxxx X. Xxxxxxxxx
ATTEST:
LUNAIRE LIMITED
BY: s/Xxxxxx X. Xxxxxx
ATTEST:
EXHIBIT A
CATEGORIES OF ITEMS MANUFACTURED BY LICENSEE
1. Humidity with Altitude
2. AGREE (Advisory Group on Reliability of Electronic
Equipment) with Vibration
3. AGREE with Humidity.
4. CERT (Combined Environmental Reliability Test)
5. Thermal Shock
6. Vibration with Altitude or Humidity
7. Space Simulation
8. Space Simulation Components, i.e., Shrouds, Platens,
etc.
9. Explosion
10. Autoclave/Sterilizers
11. ESS (Environmental Stress Screening)
12. Multi-Stage Refrigeration Systems
13. Vapor Recovery Systems
14. Refrigerant Recovery Systems
15. Sand & Dust
16. Salt Spray
17. Cooling Air Simulators
18. Cascade Baths
19. Heat Flux Simulator
20. Solar Simulators
21. Motion Simulators
22. HAST (Highly Accelerated Stress Test)
EXHIBIT B
TRADEMARKS OTHER THAN ``XXXXXX'' RELATING TO
PRODUCTS,
SOME OF WHICH MAY NOT BE IN CURRENT USE
TEMPGARD
BENCHMASTER
MICROTENN
COMPROTENN
TENNTROL
VIDEOTENN
VACTENN
DIGITENN
VERSATENN
RELIATEMP
RELIALAB
HERMETICOOL
VAPOR-FLO
EXHIBIT C
WARRANTIES TO PURCHASES OF PRODUCTS MANUFACTURED
BY
LICENSEE
(See annexed domestic and international warranty
certificates)
EXHIBIT (10) g. (ii)
LEASED EMPLOYEE AGREEMENT
LUNAIRE LIMITED
and
XXXXXX ENGINEERING, INC.
This Agreement This Agreement
This Agreement entered into this 18th day of December,
1992,
by and between LUNAIRE LIMITED
LUNAIRE LIMITED LUNAIRE
LIMITED, a Pennsylvania corporation
(`` `` `` Lunaire
Lunaire Lunaire'' ''
'') having an address at 0000 Xxxxx Xxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 and XXXXXX ENGINEERING, INC.
XXXXXX ENGINEERING, INC.
XXXXXX ENGINEERING, INC., a New Jersey
corporation (`` ``
``Xxxxxx Xxxxxx
Xxxxxx'' ''
'') having an address at 0000 Xxxxxxxxxxx
Xxxx, Xxxxx, Xxx Xxxxxx 00000.
Concurrently with the execution of this Agreement,
Lunaire
and Xxxxxx have entered into a License Agreement of
even date
(the ``License Agreement ''), under which Xxxxxx is
licensing
Lunaire to manufacture and sell certain Xxxxxx
products. By
reason of said License Agreement, Lunaire is making a
significant
financial commitment, including acquiring additional
space,
additional personnel and additional equipment, as
well as
committing to the license fee payable under the
License
Agreement.
Lunaire has expressed its willingness to enter
into the
License Agreement only if the services of Xxxxxx X.
Xxxxxxxxx
(`` Xxxxxxxxx'') and such other employees
of Xxxxxx as may be
needed by Lunaire, are made available to it on a
part-time basis.
Lunaire considers such services essential to its
successful
exploitation of the License Agreement, in view of
Schiffman's
broad technical and marketing expertise and the
technical and
manufacturing expertise of other Xxxxxx personnel.
This Leased Employee Agreement is entered into
as an
inducement to Lunaire to enter into the License
Agreement and
represents an integral part of said License Agreement.
In consideration of these premises and the mutual
promises
herein contained, the parties agree as follows:
1. Xxxxxx agrees to provide to Lunaire, and
Lunaire agrees
to engage, the services of Xxxxxxxxx for a maximum of
24 hours
during the period from the date hereof through December
31, 1992,
and thereafter approximately 180 hours in each calendar
quarter
of the term, said days to be those reasonably
requested by
Lunaire. In order to permit Xxxxxxxxx to plan his
schedule,
Lunaire will provide Xxxxxxxxx with a minimum of five
(5) days
notice as to his assignments, it being understood that
Lunaire
shall reschedule any assignment on account of any
conflicting
prior commitments of Xxxxxxxxx of which it is
notified by
Xxxxxxxxx and shall agree to any other reasonable
requests of
Xxxxxxxxx for rescheduling the assignments. All travel
time of
Xxxxxxxxx to and from any assignment at a place more
than fifty
(50) miles from Xxxxxx'x above stated address
(any such
assignment, whether relating to Xxxxxxxxx or other
employee of
Xxxxxx, being hereinafter referred to as a
``Distant
Assignment'' ) shall be charged
against such maximum. In no event
shall Xxxxxxxxx be required hereunder to spend more than
five (5)
days of any ten (10) day period at any Distant Assignment
without
his prior consent.
2. With respect to all other personnel,
Lunaire will
designate that individual or those individuals whose
services it
wishes to utilize and Xxxxxx agrees to provide the
services of
said individuals. The parties agree to utilize a
good faith
effort to accommodate the reasonable needs of each other.
3. With respect to Xxxxxxxxx and all other
employees
provided pursuant hereto, Xxxxxx agrees that it
will be
responsible for the payment of all compensation,
holidays,
vacations, medical coverage, pension or other employee
benefits,
as well as FICA, federal and state unemployment taxes,
workmen's
compensation and other direct and indirect employee
expenses.
4. Xxxxxx will file all required federal and state
reports
and returns with respect to all personnel which it
provides to
Lunaire.
5. Lunaire agrees to pay to Xxxxxx as follows:
(a) With respect to Xxxxxxxxx, the sum of
$10,000 for
each calendar month or part thereof included in the
period from
January 1, 1993 through the end of the term hereof, to be
paid by
Lunaire on or before the 25th day each such month,
provided,
however, that Lunaire may discontinue such payments with
respect
to all calendar months commencing after (i) the
death of
Xxxxxxxxx, or (ii) the end of any period of
ninety (90)
consecutive days during all of which days Xxxxxxxxx
shall be
unable to perform required services hereunder. In
addition,
Lunaire agrees to pay to Xxxxxx the sum of $4,000,000 in
respect
of the period from the date hereof through December 31,
1992.
(b) With respect to other personnel, an
amount
equivalent to 140% of the employee's daily
salary/hourly wage,
plus any overtime incurred, for each day worked, said
sum to be
billed by Xxxxxx weekly, and to be paid by Lunaire
within seven
(7) days of receipt of Xxxxxx'x invoice.
6. Lunaire will reimburse Xxxxxx for all
reasonable
travel, food, and lodging expenses incurred by Xxxxxx
personnel
in connection with any Distant Assignment, said
charges to be
billed by Xxxxxx monthly, without markup, and to be
paid by
Lunaire within seven (7) days of receipt, provided,
however, that
any travel in Xxxxxx or employee owned or leased
vehicles shall
be charged at the rate prescribed by the Internal Revenue
Service
then prevailing.
7. The term of this Agreement with respect to all
Xxxxxx
personnel shall be for a period commencing the date
hereof and
ending December 31, 1996.
8. Xxxxxx will not be in default hereunder should
any of
its personnel no longer be in its employ in the future.
In the
event Xxxxxx plans to discharge or lay off any of its
current
personnel, it will advise Lunaire of such plans, so that
Lunaire
might have an opportunity to explore the possible
employment of
said individual directly.
9. Should Xxxxxx personnel serving hereunder be
involved
in an accident, Xxxxxx will promptly advise Lunaire
thereof by
FAX as soon as relevant details become available to
Xxxxxx.
10. This Agreement will be construed and
enforced in
accordance with the laws of the State of New Jersey,
except where
federal law has precedence.
11. This Agreement represents the entire
understanding
between the parties with respect to the subject matter
hereof,
and any modification or amendment hereof shall be
effective only
if in writing executed by both parties.
12. All disputes arising under and in connection
with this
Agreement, or the interpretation or enforcement thereof,
shall be
decided by one (1) arbitrator in an arbitration
proceeding
conforming to the rules of the American Arbitration
Association
applicable to commercial arbitrations. The arbitrator
shall be
chosen by agreement of the parties or, if they cannot
agree, then
the arbitrator shall be appointed by the American
Arbitration
Association. The arbitration shall take place in
Trenton, New
Jersey, and the decision of the arbitrator shall be
conclusively
binding upon the parties. Such decision shall be
nonappealable
and enforceable as a judgment in any court of
competent
jurisdiction. The cost of the arbitration shall be
borne in
accordance with the award of the arbitrator;
otherwise the
parties shall share the cost equally.
IN WITNESS WHEREOF, intending to be legally bound
hereby,
the parties have duly signed this Agreement the day
and year
first above written.
LUNAIRE LIMITED
LUNAIRE LIMITED
LUNAIRE LIMITED
BY: s/Xxxxxx X. Xxxxxx
BY: s/Xxxxxx X. Xxxxxx
BY: s/Xxxxxx X. Xxxxxx
XXXXXX ENGINEERING, INC.
XXXXXX ENGINEERING, INC.
XXXXXX ENGINEERING, INC.
BY: s/Xxxxxx X. Xxxxxxxxx
BY: s/Xxxxxx X. Xxxxxxxxx
BY: s/Xxxxxx X. Xxxxxxxxx
EXHIBIT (10) g. (iii)
EMPLOYMENT AGREEMENT
XXXXXX ENGINEERING, INC.
and
XXXXXX X. XXXXXXXXX
AGREEMENT entered into on the 18th day of
December 1992
between XXXXXX ENGINEERING, INC., a corporation
organized under
the laws of the State of New Jersey (hereinafter
called the
`` Company'') and XXXXXX X. XXXXXXXXX (herein
after referred to as
`` Xxxxxxxxx'').
W I T N E S S E T H :
WHEREAS, Xxxxxxxxx has been employed by the Company
for 27
years and has been its chief executive officer for nine
(9) years
and
WHEREAS, the Company contemplates
discontinuing the
manufacture of environmental test xxxxxxxx at its
Union, New
Jersey facility within three months of the date of this
Agreement
and it has entered into a license agreement with LUNAIRE
LIMITED
(hereinafter called ``
Lunaire'') licensing Lunaire to manufacture
environmental test xxxxxxxx under the name Xxxxxx, and
Lunaire
has insisted as a condition to entering into such
license
agreement that the Company provide to Lunaire the
services of
Xxxxxxxxx through the end of 1996 and the Company and
Lunaire
have entered into an agreement dated December 18,
1992 (the
`` Agreement'') pursuant to which the
Company has agreed to
provide to Lunaire the services of Xxxxxxxxx for
approximately
180 hours per calendar quarter through December 31,
1996 for
which the Company will be paid $10,000 per month, and
WHEREAS, the Company desires to assure itself of
Schiffman's
services from the date hereof through the end of
1996 (the
`` Term'') the period that it is obligated to
furnish Schiffman's
services to Lunaire and to assure itself that he will
continue to
manage the affairs of the Company and its subsidiaries
during
such period including supervising the disposition of its
Union,
New Jersey manufacturing facility and obtaining of the
necessary
environmental clearance from the State of New Jersey to
permit
sale of such facility, and
WHEREAS, Xxxxxxxxx is willing to continue his
employment
with the Company for the Term and to provide to
Lunaire the
services which the Company has contracted to provide
to it in
accordance with the terms of the Agreement,
NOW, THEREFORE, in consideration of their mutual
promises
herein contained and each intending to be legally bound
hereby,
the parties hereto agree as follows:
1. The Company agrees to employ Xxxxxxxxx in an
executive
capacity for the period beginning the date hereof and
ending
December 31, 1996;
2. Xxxxxxxxx shall serve the Company in an
executive
capacity and shall have such responsibilities, powers and
duties
as may from time to time be prescribed by the Board of
Directors
of the Company provided that such duties and
responsibilities are
substantially consistent with those of an executive
officer.
Xxxxxxxxx acknowledges receipt of a copy of the
Agreement and
agrees on behalf of the Company to provide to
Lunaire the
services which Xxxxxx has contracted to furnish to
Lunaire during
the Term.
3. During the Term, Xxxxxxxxx shall devote all
reasonable
efforts to the performance of his duties hereunder and
to the
promotion of the business and interests of the Company
including
the rendering on behalf of the Company of services to
Lunaire
pursuant to the Agreement and will devote substantially
all of
his time to the performance of such duties.
4. The Company agrees to pay Xxxxxxxxx during the
Term a
salary of $200,000 per year, subject to such
increases or
decreases as the Company's Board of Directors may
approve,
payable in equal installments not less frequently than
monthly
but no decrease shall reduce such salary to less than at
the rate
of $200,000 per year.
5. During the Term Xxxxxxxxx shall be accorded
the right
to participate in any and all group insurance, stock
option plans
and accident, disability, sickness and hospitalization
insurance,
and all other plans for the benefit of the Company's
officers
which shall be in effect during the Term. During
the Term
Xxxxxxxxx shall be provided with a leased or Company
owned car
comparable to the type of car which he has been furnished
in the
past. Xxxxxxxxx shall be entitled to receive prompt
reimbursement
for reasonable expenses incurred by him in accordance
with the
policies and procedures of the Company for its executive
officers
in performing services hereunder including services
provided to
Lunaire under the Agreement, provided that he properly
accounts
therefor in accordance with Company policy.
Xxxxxxxxx shall be entitled to the number of
vacation days
in each calendar year determined by the Company from time
to time
for its senior executive officers, but not less than
four weeks
in any calendar year (prorated in any calendar year in
which he
is employed hereunder for less than the entire year in
accordance
with the number of days in such calendar year during
which he is
so employed). Xxxxxxxxx will not be entitled to receive
payment
for vacation days not taken during a calendar year. He
shall also
be entitled to all paid holidays given by the Company
to its
executive officers.
6. In the event that Xxxxxxxxx shall, during
the Term,
fail to perform his duties hereunder owing to
illness or
disability, and such illness or disability shall
continue for a
period of more than six consecutive months, the
Company shall
have the right, by notice sent by registered or
certified mail
addressed to Xxxxxxxxx at his residence or such other
place as
Xxxxxxxxx shall designate in writing, to terminate
Schiffman's
employment hereunder as of a date (not less than 30
days after
the date of the sending of such notice) to be specified
in such
notice.*
*If Schiffman's disability ceases and he is able to
resume his
employment, the Company shall re-employ him for the
balance of
the Term.
7. This Agreement shall continue in full force and
effect
notwithstanding that the Company shall discontinue its
business,
and this agreement shall be enforceable against the
successors
and assigns of the Company, including any corporation
or party
which buys all of its stock or with which it
merges or
consolidates.
8. Any dispute or controversy arising under
or in
connection with this agreement shall be settled
exclusively by
arbitration in Newark, New Jersey in accordance with the
rules of
the American Arbitration Association then in
effect.
Notwithstanding the pendency of any such dispute or
controversy,
the Company will continue to pay Xxxxxxxxx his full
compensation
in effect when the notice giving rise to the dispute
was given
and continue him as a participant in all compensation,
benefit
and insurance plans in which he was participating when
the notice
giving rise to the dispute was given, until the
dispute is
finally resolved. Judgment may be entered on the
arbitrator's
award in any court having jurisdiction.
9. The invalidity or unenforceability of any
provisions of
this Agreement shall not affect the validity or
enforceability of
any other provision of this agreement, which shall remain
in full
force and effect.
10. This agreement may be executed in one
or more
counterparts, each of which shall be deemed to be an
original but
all of which together will constitute one and
the same
instrument.
11. This agreement constitutes the entire agreement
between
the parties hereto relating to the employment of
Xxxxxxxxx by the
Company. This agreement may be modified, supplemented or
amended
only by and with the express, written consent of both
parties
hereto. This agreement may not be discharged
except by
performance or another agreement in writing.
12. This agreement and the legal relations
among the
parties hereto shall be governed by and construed in
accordance
with the laws of New Jersey applicable to contracts made
and to
be performed in New Jersey.
IN WITNESS WHEREOF, the parties hereto have
caused these
presents to be executed as of the day and year
first above
written.
XXXXXX ENGINEERING, INC.
By: s/Xxxx X. Xxxxxxxxx
s/Xxxxxx X. Xxxxxxxxx
ATTEST:
s/Xxxxx X. Xxxxxx
EXHIBIT (10) g. (iv)
CONSULTING AGREEMENT
LUNAIRE LIMITED
and
XXXXXX X. XXXXXXXXX
This Agreement This Agreement
This Agreement entered into this 18th day of December,
1992,
by and between LUNAIRE LIMITED (
LUNAIRE LIMITED ( LUNAIRE LIMITED (``
``
``
Lunaire Lunaire
Lunaire''
''
'')
) ) having
an address at
0000 Xxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx and
XXXXXX X.
XXXXXX X.
XXXXXX X.
XXXXXXXXX ( XXXXXXXXX ( XXXXXXXXX (``
`` ``Xxxxxxxxx
Xxxxxxxxx Xxxxxxxxx''
'' '')
)
) having an address at 00 Xxx Xxxxx
Xxxxx, Xxxxx Xxxxx, Xxx Xxxxxx 00000.
Concurrently with the execution of this Agreement,
Lunaire
has entered into a License Agreement (the ``License
Agreement'')
of even date with Xxxxxx Engineering, Inc. (
(
(``
``
``Xxxxxx
Xxxxxx
Xxxxxx''
''
'')
)
). As an
integral part of the License Agreement, the parties also
entered
into a Leased Employee Agreement of even date. This
Consulting
Agreement is entered into as an additional inducement to
Lunaire
to enter into the License Agreement.
It is the purpose of this Agreement to provide
Lunaire with
additional assurances that Xxxxxxxxx will be available to
Lunaire
to provide technical and marketing assistance during
the next
four (4) years.
In consideration of these premises and the
promises
contained herein, the parties agree as follows:
1. In the event Xxxxxxxxx ceases to be in the
employ of
Xxxxxx, Xxxxxxxxx agrees to provide on a consulting
basis such
technical and marketing services as may be requested of
him by
Lunaire or required under the terms hereof in his
capacity as an
independent contractor, and not as an employee of
Lunaire.
2. Lunaire shall have the option of engaging
Xxxxxxxxx
hereunder by giving him notice within thirty (30)
days of
Lunaire's receipt of notice from Xxxxxx or from
Xxxxxxxxx, that
Xxxxxx will no longer be in a position to provide his
services
under the Employee Lease Agreement referred to above.
3. In the event that Xxxxxx shall be legally
barred from
providing or otherwise unable to provide the
services of
Xxxxxxxxx to Lunaire under said Leased Employee
Agreement by
operation of law or by reason of any bankruptcy or
insolvency
proceeding, any dissolution of Xxxxxx, or the judgment,
decree or
order of any court or administrative agency of
competent
jurisdiction, then, upon the occurrence of any such event
Lunaire
shall engage the services of Xxxxxxxxx.
4. The term of this Agreement shall commence as of
either
the date on which Lunaire sends the notice to
Xxxxxxxxx under
paragraph 2 hereof or the date of the occurrence of
an event
described in paragraph 3 hereof, whichever is the first
to occur,
and shall end the earliest to occur of (a) December 31,
1996, (b)
the death of Xxxxxxxxx, (c) the end of any period of
ninety (90)
consecutive days during all of which days Xxxxxxxxx is
unable to
perform required services hereunder, or (d) termination
of the
License Agreement for any reason.
5. Xxxxxxxxx agrees to make himself available to
Lunaire
for approximately of 180 hours in each calendar quarter
of the
term (such number of hours to be apportioned in the case
of any
partial calendar quarter included in the term), said
days to be
those reasonably requested by Lunaire. In order to
permit
Xxxxxxxxx to plan his schedule, Lunaire will provide
Xxxxxxxxx
with a minimum of five (5) days notice as to his
assignments, it
being understood that Lunaire shall reschedule any
assignment on
account of any conflicting prior commitments of
Xxxxxxxxx of
which it is notified by Xxxxxxxxx and shall agree to
any other
reasonable requests of Xxxxxxxxx for
rescheduling the
assignments. All travel time of Xxxxxxxxx to and from
Schiffman's
above stated address (any such assignment being
hereinafter
referred to as a `` Distant
Assignment'') shall be charged against
such maximum. In no event shall Xxxxxxxxx be required
hereunder
to spend more than five (5) days of any ten (10) day
period at an
Distant Assignment without his prior consent.
6. Lunaire shall pay Xxxxxxxxx the sum of $10,000
for each
calendar month, or part thereof, included in the term
hereof,
within seven (7) days after the end of each such month.
7. Lunaire will reimburse Xxxxxxxxx for all
reasonable
travel, food, and lodging expenses incurred by
Xxxxxxxxx in
connection with any Distant Assignment, said charges to
be billed
by Xxxxxxxxx monthly and to be paid by Lunaire within
seven (7)
days of receipt, provided, however, that any travel in
vehicles
owned or leased by Xxxxxxxxx shall be charged at
the rate
prescribed by the Internal Revenue Service then
prevailing.
8. Xxxxxxxxx agrees and acknowledges that all
information
which he obtains concerning Lunaire, its
finances, its
technology, its marketing and its manufacturing
techniques, to
the extent confidential or otherwise unique to Lunaire,
will be
held as confidential by him for the period during which
he is a
consultant to Lunaire and for a period of two
(2) years
thereafter. Xxxxxxxxx agrees that he will not,
directly or
indirectly, use or disclose such information to others.
9. This Agreement will be construed and
enforced in
accordance with the laws of the State of New Jersey.
10. This Agreement represents the entire
understanding
between the parties hereto, and any modification or
amendment
hereof shall be effective only if in writing executed
by both
parties.
11. Should Xxxxxxxxx be involved in an accident,
Xxxxxxxxx,
if able to do so, will promptly advise Lunaire thereof as
soon as
practicable.
12. All disputes arising under and in connection
with this
Agreement, or the interpretation or enforcement thereof,
shall be
decided by one (1) arbitrator in an arbitration
proceeding
conforming to the rules of the American Arbitration
Association
applicable to commercial arbitrations. The arbitrator
shall be
chosen by agreement of the parties or, if they cannot
agree, then
the arbitrator shall be appointed by the American
Arbitration
Association. The arbitration shall take place in
Trenton, New
Jersey, and the decision of the arbitrator shall be
conclusively
binding upon the parties. Such decision shall be
nonappealable
and enforceable as a judgment in any court of
competent
jurisdiction. The cost of the arbitration shall be
borne in
accordance with the award of the arbitrator;
otherwise the
parties shall share the cost equally.
IN WITNESS WHEREOF, IN WITNESS
WHEREOF, IN WITNESS WHEREOF, intending to be
legally bound hereby,
the parties have duly signed this Agreement the day
and year
first above written.
LUNAIRE LIMITED
LUNAIRE LIMITED
LUNAIRE LIMITED
BY: s/Xxxxxx X. Xxxxxx
BY: s/Xxxxxx X. Xxxxxx
BY: s/Xxxxxx X. Xxxxxx
s/Xxxxxx X. Xxxxxxxxx
s/Xxxxxx X. Xxxxxxxxx
s/Xxxxxx X. Xxxxxxxxx
EXHIBIT (10) i. (ii)
THIRD AMENDMENT TO
LOAN AND SECURITY AGREEMENT
(originally dated September 12, 1996)
THIS THIRD AMENDMENT TO LOAN AND SECURITY
AGREEMENT dated
this day of May, 1997 is made by and among
XXXXXX
ENGINEERING, INC., a New Jersey corporation, whose
principal
place of business is located at 0000 Xxxxxxxxxxx Xxxx,
Xxxxx, Xxx
Xxxxxx (together with its successors and assigns,
hereinafter
referred to as ``Xxxxxx''); DYNATENN, INC., a
Massachusetts
corporation, whose principal place of business is located
at 000
Xxxxxxxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000
(together with
its successors and assigns, hereinafter referred to as
``Dyna
Tenn'' ) (Xxxxxx and DynaTenn are
sometimes hereinafter
collectively referred to as the context may require as
the ``Co-
Borrowers'' ); and SUMMIT BANK,
a banking corporation duly
organized and validly existing under the laws of the
State of New
Jersey, whose principal office is located at 000 Xxxx
Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 (together with its
successors and
assigns, hereinafter referred to as the ``
Bank'').
R E C I T A L S
A. Pursuant to a certain Loan and Security
Agreement dated
September 12, 1996, as amended by that certain Amendment
to Loan
and Security Agreement dated as of February 20, 1997, and
further
amended by that certain Second Amendment to Loan and
Security
Agreement dated as of April 23, 1997 (together with
all other
amendments thereto hereinafter referred to as the
``Loan
Agreement'' ), the Bank provided the
Co-Borrowers with a working
capital line of credit in the original maximum principal
amount
of THREE HUNDRED THOUSAND DOLLARS ($300,000.00), which
maximum
principal amount was subsequently increased to FOUR
HUNDRED
THOUSAND DOLLARS ($400,000.00) and later increased
to SEVEN
HUNDRED FIFTY THOUSAND DOLLARS ($750,000.00)
(hereinafter
referred to interchangeably as the ``Line of Credit''
or the
`` Loan'').
B. The Loan is presently evidenced by a certain
Amended and
Restated Promissory Grid Note dated April 23, 1997,
in the
original maximum principal amount of $750,000.00
(hereinafter
referred to as the ``
Note'').
C. Pursuant to the terms of the Loan Agreement and
the Note,
the term of the Line of Credit expires on May 31, 1998.
NOW THEREFORE, in consideration of the facts
recited
hereinabove and the payment by the Co-Borrowers to the
Bank of
the sum of Ten Dollars ($10.00) and other good and
valuable
consideration, the receipt and sufficiency of
which is
acknowledged, and intending to be legally bound
hereby, the
parties hereto agree as follows:
1. Capitalized terms used but not defined in this
Amendment
shall have the meanings ascribed to them in the Loan
Agreement,
unless a different meaning is clearly required by the
context
hereof.
2. A definition of ``
Eligible Receivables
Eligible Receivables Eligible
Receivables ''
'' ''
shall be added
and shall state:
`` Eligible Receivables '' means and
includes only Receivables
arising out of sales made by the Co-Borrowers in the
ordinary
course of its business to a Person who is not an
Affiliate of the
Co-Borrowers or controlled by an Affiliate of the
Co-Borrowers,
which are absolute and not contingent upon the
fulfillment of any
condition whatsoever. In addition, to be an Eligible
Receivable,
a Receivable must satisfy ___
all of the following criteria:
(a) It must be a true and correct statement of a
bona fide
indebtedness incurred in the amount of the account for
goods sold
or leased and delivered to the account debtor obligated
on such
Receivable; and
(b) no warranty with respect to such Receivable
shall have
been breached; and
(c) the account debtor shall not have disputed
liability
with respect to such Receivable or made any claim with
respect to
any other Receivable due from such customer or account
debtor to
a Co-Borrower; and
(d) the account debtor shall not have filed a
petition for
bankruptcy or reorganization under the Bankruptcy Code,
nor shall
any such petition under the Bankruptcy Code have
been filed
against the account debtor, nor shall the account
debtor have
made an assignment for the benefit of creditors, nor
shall the
account debtor have failed, suspended business
operations, become
insolvent, nor shall the account debtor have or
suffered a
receiver or a trustee to have been appointed for
all or a
significant portion of its assets or affairs, unless
the Bank
shall have specifically agreed that such Receivable
is an
Eligible Receivable in the reasonable exercise of its
discretion;
and
(e) such Receivable shall not be more than ninety
(90) days
past original invoice date; and
(f) such Receivable shall be owned solely by
the Co-
Borrowers free from any liens, security interests
or other
encumbrances, except liens, security interests and
encumbrances
in favor of the Bank; and
(g) such Receivable shall not be covered by any
financing
statement filed on record in any recording office,
except in
favor of the Bank; and
(h) the sale to the account debtor shall not have
been on a
xxxx-and-hold, guarantied sale, sale-and-return, sale on
approval
or assignment basis; and
(i) the sale shall not have been to an account
debtor
outside of the United States nor to an account debtor
which is
the federal government or governmental agency or
instrumentality
thereof; and
(j) the Bank shall believe, in its reasonable
judgment, that
collection of such Receivable is not insecure and
that such
Receivable will be paid by the account debtor in the
ordinary
course of business; and
(k) such Receivable shall not be offset by a payable
owed to
the same party; and
(l) not more than fifty percent (50%) of the
Receivable
shall be ineligible for any reason; and
(m) such Receivable must not
not not
arise out of, or in connection
with, a sale or other transaction between the
Co-Borrowers and an
Affiliate; and
(n) such Receivable shall account for less than
twenty
percent (20%) of the aggregate value of all Receivables;
and
(o) such Receivable shall otherwise be deemed
to be
acceptable to the Bank in its sole discretion.
3. A definition of ``
`` ``Receivables
Receivables
Receivables''
'' '' shall be added
and shall
state:
`` Receivables'' means and includes (i) all
existing and future
created or acquired accounts (as defined in the
Uniform
Commercial Code of New Jersey (``UCC''
)); (ii) receivables; (iii)
rights of any kind of the Co-Borrowers to receive
payment for
goods sold or leased or for services rendered in the
ordinary
course of its business; (iv) contract rights; (v)
documents (as
defined in the UCC); (vi) instruments (as defined in
the UCC);
(vii) patent rights; (viii) royalties; (ix) bills; (x)
leases;
(xi) rents; (xii) chattel paper (as defined in the UCC);
(xiii)
license rights; (xiv) rights to refund or
indemnification; (xv)
acceptances; and (xvi) tax refunds and other general
intangibles
of every kind or nature and all forms of obligations
whatsoever
owing, together with all instruments and all documents
of title
representing the foregoing and all rights in any
merchandise or
goods which any of the same may represent, together
with all
right, title, security, and guarantees with respect
to each
Receivable, including any right of stoppage in
transit, and
together with all Proceeds thereof.
4. The definition of ``
Working Capital Advances Limit ''
shall be amended to mean the lesser of (i) $750,000.00,
or (ii)
one hundred percent (100%) of Eligible Receivables.
5. The Co-Borrowers hereby affirm that all
representations
and warranties made by them in the Loan Agreement,
continue to be
true, accurate, and complete as of the date of this
Amendment,
with the same effect as if such representations and
warranties
were made on the date hereof.
6. Any and all Indebtedness and other Obligations of
the Co-
Borrowers thereunder are reaffirmed and reacknowledged
hereby and
thereby.
7. From and after the execution hereof, all
references to
the ``Loan Agreement,'' whether or not defined as such,
in the
Loan Agreement or in any of the Loan Documents, shall be
deemed
to be references to the Loan Agreement as amended
by this
Amendment.
8. This Amendment has been duly executed and
validly
delivered by the parties hereto, and constitutes the
legal,
valid, and binding obligations of the parties hereto,
enforceable
against them in accordance with its terms.
9. Except to the extent expressly amended hereby
(in which
case the terms hereof shall prevail) the various
terms and
provisions of the Loan Agreement shall remain in full
force and
effect.
IN WITNESS WHEREOF, the parties have executed and
delivered
this Amendment on the date and year first written above.
ATTEST: XXXXXX ENGINEERING,
INC.
(Corporate Seal)
s/Xxxxxx Xxxxxx By: s/Xxxxxx X.
Xxxxxxxxx
Xxxxxx Xxxxxx, Asst. Secretary Xxxxxx X. Xxxxxxxxx,
President
DYNATENN, INC.
s/Xxxxxx Xxxxxx By: s/Xxxxxx X.
Xxxxxxxxx
Xxxxxx Xxxxxx, Asst. Clerk Xxxxxx X. Xxxxxxxxx,
Chief Executive
Officer
SUMMIT BANK
By: s/Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx,
Assistant Vice
President
EXHIBIT (10) i. (iv)
AMENDED AND RESTATED
PROMISSORY GRID NOTE
(originally dated September 12, 1996)
UP TO $750,000.00 Westfield, New Jersey
April 23, 1997
FOR VALUE RECEIVED, XXXXXX ENGINEERING, INC., a
corporation
duly organized and validly existing under the laws of
the State
of New Jersey, having its principal office at 0000
Xxxxxxxxxxx
Xxxx, Xxxxx, Xxx Xxxxxx 00000 (together with its
successors and
assigns, hereinafter referred to as ``
Xxxxxx'') and DYNATENN,
INC., a corporation duly organized and validly existing
under the
laws of the State of Massachusetts, having its principal
office
at [110 Industrial Park Road, Hingham, Massachusetts
02043]
(together with its successors and assigns, hereinafter
referred
to as `` Dyna Tenn'') (Xxxxxx and
DynaTenn are hereinafter
referred to collectively as the ``
Co-Borrowers'') hereby jointly
and severally promise to pay to the order of SUMMIT
BANK, a
banking corporation duly organized and validly existing
under the
laws of the State of New Jersey, having its principal
office at
000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (together
with its
successors and assigns, hereinafter referred to as the
``Bank'')
on the earlier of (i) May 31, 1998, or (ii) the
Termination Date,
the principal sum of SEVEN HUNDRED FIFTY THOUSAND
DOLLARS
($750,000.00), or, if less, then the aggregate unpaid
principal
amount of all Working Capital Advances made by the Bank
to the
Co-Borrowers pursuant to Section 2.1 of the Loan and
Security
Agreement, as amended, in lawful money of the United
States of
America, in immediately available funds, and to pay
interest
thereon, in like funds, at a fluctuating interest rate
equal, at
any time and from time to time, to one and three quarters
percent
(1.75%) over the Bank's Floating Base Lending Rate per
annum.
THIS NOTE AMENDS, RESTATES, SUPERSEDES, AND REPLACES THAT
CERTAIN
NOTE DATED SEPTEMBER 12, 1996 EVIDENCING A LOAN IN THE
ORIGINAL
PRINCIPAL AMOUNT NOT TO EXCEED THREE HUNDRED THOUSAND
DOLLARS AND
NO CENTS ($300,000.00), AS AMENDED BY THAT CERTAIN
AMENDMENT TO
PROMISSORY NOTE DATED AS OF FEBRUARY 20, 1997.
Capitalized terms used but not defined in this
Note shall
have the means ascribed to them in that certain Loan and
Security
Agreement dated on September 12, 1996, as amended
pursuant to a
certain Amendment to Loan and Security Agreement dated
on the
date hereof, by and among the Co-Borrowers and the Bank,
which is
hereby incorporated verbatim herein in its entirety and
made part
hereof, unless a different meaning is clearly required
by the
context hereof. This Note is the ``Note,'' as such
term is
defined in the Loan and Security Agreement, as amended.
Interest on the unpaid principal amount of each
Working
Capital Advance, at the fluctuating rate described
hereinabove,
shall accrue from the date such Working Capital Advance
is made
until the principal amount thereof shall be paid
in full.
Interest shall be payable monthly, in arrears, on the
first (1st)
day of each calendar month, commencing May 1,
1997, and
continuing thereafter on the first (1st) day of each
succeeding
calendar month, through and including May 1, 1998.
Thereafter, on
May 31, 1998, or, if earlier, then on the Termination
Date, all
unpaid principal and accrued and unpaid interest hereon
shall be
due and payable in full. Interest hereon shall be
computed on the
basis of the actual number of days elapsed over a year
consisting
of 360 days. The Co-Borrowers shall be permitted
to make
discretionary principal payments against the Line of
Credit
without premium or penalty. Such principal payments
shall be
applied by the Bank in the manner specified in subsection
2.1(G)
of the Loan and Security Agreement.
The Bank shall maintain an account record of the
amount of
all Working Capital Advances made to the
Co-Borrowers and
payments of principal and interest made by the
Co-Borrowers in
connection therewith, which account record shall serve
as prima
facie evidence of the aggregate amount of Outstanding
Working
Capital Advances and accrued and unpaid interest
thereon from
time to time. The failure of the Bank to maintain such an
account
record upon the making of any Working Capital Advance
or the
payment of any principal or interest, however, shall not
alter or
impair the rights and remedies of the Bank if any Working
Capital
Advance has actually been made or the rights and remedies
of the
Co-Borrowers in the event that a payment or principal or
interest
has been made in accordance with the provisions of the
Loan and
Security Agreement and this Note.
The Co-Borrowers hereby irrevocably authorize and
direct the
Bank, on the date that any payment of principal or
interest shall
be due, to charge any account maintained by any
Co-Borrower at
the Bank for the full amount of such principal and
interest.
If the Co-Borrowers shall have failed to make any
payment of
any installment of principal or interest hereon within
ten (10)
days of its due date hereunder, then the Bank shall, in
addition
to and not to the exclusion of any of its other
rights or
remedies under the Loan Documents (including but not
limited to
the right to accelerate payment of this Note), be
entitled to,
and the Co-Borrowers shall jointly and severally pay to
the Bank,
a late charge equal to five percent (5%) of the overdue
payment,
but in any event not less than $25 or more than
$2,500. Late
charges assessed by the Bank are immediately due and
payable.
Payments shall be deemed to be made on the banking day
upon which
payment is received by the Bank; payments received
after 3:00
p.m. will be deemed received on the next banking day.
Payment of the principal of and accrued interest
on this
Note is secured by a first priority security interest in
the lien
upon certain of the Collateral granted by the
Co-Borrowers to the
Bank pursuant to the Loan and Security Agreement.
Reference is
hereby made to the Loan and Security Agreement for
a more
complete description of the security for the
repayment of
principal and interest on this Note, the rights and
Obligations
of the Co-Borrowers in connection therewith, and other
matters
affecting the indebtedness evidenced by this Note.
Upon the occurrence of an Event of Default, as
defined in
the Loan and Security Agreement, as amended, the
principal amount
hereof, together with accrued interest thereon, may
become, or
may be declared to be, immediately due and payable,
in the
manner, upon the conditions, and with the effect provided
in said
Agreement.
The Co-Borrowers acknowledge that the Bank does not
intend
for the aggregate principal amount of the Outstanding
Working
Capital Advances under Section 2.1 of the Loan and
Security
Agreement to exceed, at any time, the Working Capital
Advances
Limit which is specifically defined in subsection 2.1(A)
of the
Loan and Security Agreement. Notwithstanding the
foregoing, if,
for any reason, the Bank should advance to the
Co-Borrowers sums
in excess of said Working Capital Advances Limit, then
the Co-
Borrowers agree that they will, immediately upon
receipt of
written notice from the Bank, jointly and severally
repay the
amount by which the Outstanding Working Capital
Advances under
Section 2.1 of the Loan and Security Agreement
exceeds the
Working Capital Advances Limit.
This Note shall be governed by and construed in
accordance
with the laws of the State of New Jersey.
The Co-Borrowers and any endorsers or guarantors
of this
Note hereby waive presentment, demand for payment,
protest and
notice of protest and all other demands and notices in
connection
with the payment and enforcement of this Note and
consent to
extensions of time in the payment of any moneys
payable under
this Note, or forbearance of their indulgence, without
notice.
The Co-Borrowers hereby waive trial by jury and
consent to
and confer personal jurisdiction upon the courts of the
State of
New Jersey, and expressly waive any objection as to venue
in such
courts, and agree that service of process may be made
upon them
by mailing a copy of the Summons by United States
Certified Mail,
Return Receipt Requested, to the Co-Borrowers at their
respective
addresses. The Bank likewise waives trial by jury.
IN WITNESS WHEREOF, the undersigned have caused this
Note to
be duly executed on the day and year first above written.
ATTEST: XXXXXX ENGINEERING, INC.
(Corporate Seal) a New Jersey corporation
s/Xxxxxx Xxxxxx By: s/Xxxxxx X.
Xxxxxxxxx
Xxxxxx Xxxxxx, Asst. Secretary Xxxxxx X. Xxxxxxxxx,
President
ATTEST: DYNATENN, INC.
a Massachusetts
corporation
s/Xxxxxx Xxxxxx By: s/Xxxxxx X.
Xxxxxxxxx
Xxxxxx Xxxxxx, Asst. Clerk Xxxxxx X. Xxxxxxxxx
Chief Executive Officer
STATE OF NEW JERSEY)
)
COUNTY OF UNION )
I CERTIFY that on April 23, 1997, XXXXXX X.
XXXXXXXXX,
personally came before me and this person
acknowledged under
oath, to my satisfaction, that:
(a) he signed, sealed and delivered the attached
document as
President of XXXXXX ENGINEERING, INC., the corporation
named in
this document;
(b) the proper corporate seal was affixed; and
(c) this document was signed and made by the
corporation as
its voluntary act and deed by virtue of authority from
its Board
of Directors.
s/Xxxxxx X. Xxxxxx
A Notary Public of the State of New Jersey
STATE OF NEW JERSEY)
)
COUNTY OF UNION )
I CERTIFY that on April 23, 1997, XXXXXX X.
XXXXXXXXX,
personally came before me and this person
acknowledged under
oath, to my satisfaction, that:
(a) he signed, sealed and delivered the attached
document as
Chief Executive Officer of DYNATENN, INC., the
corporation named
in this document;
(b) the proper corporate seal was affixed; and
(c) this document was signed and made by the
corporation as
its voluntary act and deed by virtue of authority from
its Board
of Directors.
s/Xxxxxx X. Xxxxxx
A Notary Public of the State of New Jersey
