EXHIBIT 10.2
LOAN AGREEMENT
Dated: January 29, 1998
NAME OF BORROWER:
VICON INDUSTRIES, INC.
PRINCIPAL PLACE OF BUSINESS:
00 Xxxxx Xxxxx Xxxxxxxxx Xxxxxxx XX 00000
Street & No. City/Town County State Zip
Code
STATE OF INCORPORATION:
New York State
1. PREAMBLE
The Borrower has requested KEYBANK NATIONAL ASSOCIATION (the "Bank"), a
national banking association, with an office for the transaction of business
located at 0000 Xxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxx 00000 to grant (i) a mortgage
loan in the amount of TWO MILLION FIVE HUNDRED TWELVE THOUSAND ($2,512,000)
DOLLARS (the "Mortgage Loan") and (ii) a term loan in the amount of THREE
HUNDRED EIGHTY-EIGHT THOUSAND ($388,000) DOLLARS (the "Term Loan") (the Mortgage
Loan and Term Loan are hereinafter collectively referred to as the "Loan") to
the Borrower, and the Bank is willing to do so but only upon the terms and
conditions of:
(a) this Loan Agreement (the "Agreement"),
(b) a Mortgage Note (the "Mortgage Note"), dated on even date herewith,
(c) a Term Loan Note (the "Term Loan Note"), dated on even date herewith
(the Mortgage Note and Term Loan Note hereinafter collectively referred to as
the "Note"),
(d) a first Mortgage and Security Agreement and a second Mortgage and
Security Agreement, each dated on even date herewith covering the Premises
(hereinafter defined)(collectively, the "Mortgage"),
(e) an Assignment of Leases and Rents covering the Premises (the
"Assignment of Rents"),
(f) and other documents executed or provided by Borrower in connection
with this transaction (this Agreement, the Note, the Mortgage, the Assignment of
Rents, and the other documents are hereinafter collectively referred to as, the
"Loan Documents").
2. USE OF LOAN PROCEEDS
The Borrower will use the Loan proceeds to purchase the property located
at 00 Xxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the "Premises").
3. LOAN PAYABLE IN ACCORDANCE WITH NOTE.
The Loan shall be payable as provided for in the Note. The Bank, in
addition to its legal right of setoff shall be entitled to debit any accounts
maintained by Borrower with the Bank for payment due under the Note.
4. INTEREST
The Loan shall bear interest computed at a rate (the "Interest Rate") as
set forth in the Note.
5. SECURITY
As collateral security for the payment of all present and future debts,
obligations and liabilities of the Borrower to the Bank, including but not
limited to those set forth in the Note (collectively, the "Obligations"), the
Borrower will grant to the Bank a security interest in all of the following (the
"Collateral"):
(a) a security interest in and assignment and pledge of all monies,
deposits or other sums now or hereafter held by the Bank on deposit, in
safekeeping, transit or otherwise, at any time credited by or due from the Bank
to the Borrower, or in which the Borrower shall have an interest;
(b) a first mortgage lien on the property located 00 Xxxxx Xxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 evidence by the Mortgage;
(c) a second mortgage lien on the Premises; and
(d) an assignment of leases and rents from the Premises.
From time to time, the Borrower will execute and deliver to the Bank such
assignments, agreements, documents, Uniform Commercial Code ("UCC") forms and
other papers as the Bank may request in connection with the granting, perfection
or continuation of the security interests granted hereunder. Borrower hereby
authorizes the Bank to file at any time UCC forms signed only by the Bank or
copies thereof or of this Agreement.
6. CONDITIONS TO LOAN
(a) Conditions Precedent. Borrower agrees that prior to or in any event no
later than the time of the closing of the Loan under this Agreement, it will
deliver to the Bank:
(1) Certified copies of corporate resolutions authorizing the
execution and delivery of all Loan Documents;
(2) Certificate of good standing from the Secretary of State of New
York and any other state or foreign country where Borrower is doing
business as to Borrower;
(3) Proof satisfactory to the Bank that the Borrower is authorized
to do business in the State of New York;
(4) New York State franchise tax search as to Borrower;
(5) A Certificate of incumbency as to Borrower;
(6) Certificates of insurance for any insurance required pursuant to
this Agreement or any of the Loan Documents;
(7) UCC searches satisfactory to the Bank;
(8) Duly executed UCC financing statements;
(9) Duly executed Loan Documents;
(10) An opinion from counsel for the Borrower as to such matters as
may be deemed appropriate by the Bank and its counsel;
(11) Payment by the Borrower of all costs and expenses incurred by
the Bank in establishing the Loan;
(12) An approval of this Loan transaction together with a
subordination of claim to the Premises and fixtures at the Premises
to the Bank from IBJ Xxxxxxxxx ("IBJ") and Chugai Boyeki Co.
Ltd.("Chugai")in form satisfactory to the Bank;
(13) A copy of the purchase contract for the Premises executed by
all parties.
(b) Financial Reporting Requirements. The Borrower agrees as follows:
(1) Borrower shall furnish annually to the Bank, audited Financial
Statements of Assets and Liabilities, together with Profit and Loss
Statements and Borrower's Form 10K, not later than ninety (90) days
following the close of the Borrower's Fiscal Year, which Financial
Statements shall be prepared on a consolidated basis by an
independent Certified Public Accountant (CPA), reasonably
satisfactory to the Bank, in accordance with Generally Accepted
Accounting Principles(GAAP), including the report/letter, all
statements and all footnotes.
(2) Annually, within 90 days of its Fiscal Year End and quarterly
within 60 days of each quarter end, Borrower shall submit compliance
certificates setting forth Borrower's calculations of and
demonstrating compliance with its Financial Covenants pursuant to
this Agreement and further certifying that, to the best of its
knowledge, no Event of Default has occurred hereunder or is
occurring or, if a default or Event of Default has occurred or is
occurring, then how same shall be cured within thirty (30) days. The
compliance certificates must be duly executed by the Borrower.
(3) Annually, within 90 days of each fiscal year end and quarterly,
within 60 days of each quarter end, Borrower shall submit management
prepared consolidating financial statements.
(4) The Borrower shall, within 60 days following each quarter end,
furnish to the Bank a copy of its Form 10-Q and consolidated
Financial Statements.
(5) Annually, Borrower shall submit its budget for the upcoming year
including projected Profit and Loss Statements and a Balance Sheet,
said budget to be delivered with Borrower's Year End Financial
Statements.
(6) Borrower shall submit such other financial documentation to the
Bank as the Bank may reasonably require so long as the Loan is
outstanding.
(7) Failure to deliver financial information within fifteen (15)
days of the date specified will constitute an Event of Default
hereunder.
(c) Financial Covenants. The Borrower covenants and agrees that, from and
after the date of execution of this Agreement, and so long as any amount may be
borrowed hereunder or remains unpaid on account of the Note or is otherwise due
to the Bank under this Agreement or any related document, Borrower shall comply
with each of the following covenants which shall be calculated for the Borrower
based on a non-consolidating, stand-alone basis for Vicon Industries, Inc.
(without subsidiaries):
(1) Debt Service Coverage Ratio. As of the end of each fiscal
quarter, the Debt Service Coverage Ratio (hereinafter defined) shall
not be less than 1.0:1.0, to be tested on a rolling four (4) quarter
basis. "Debt Service Coverage Ratio" shall mean as at any date of
determination thereof (i) Annual EBITDA (hereinafter defined), to
(ii) Debt Service (hereinafter defined) for the four (4) full fiscal
quarters ending on or immediately prior to such date of
determination.
"EBITDA" shall mean, for any period, with respect to the Borrower,
determined in accordance with GAAP, the sum of net income (or net
loss) for such period plus, the sum of all amounts treated as
expenses for: (a) interest, (b) depreciation, (c) amortization, and
(d) all accrued taxes on or measured by income to the extent
included in the determination of such net income (or net loss);
provided, however, unless otherwise provided for in this Agreement,
net income (or net loss) shall be computed without giving effect to
extraordinary losses or gains.
"Debt Service" shall mean, with respect to the Borrower, required
payments, unless waived, of current maturities of long-term
indebtedness (exclusive of any refinancings and rescheduled current
maturities) and interest expense, all of the foregoing calculated as
at any date of determination thereof by reference to the immediately
preceding four (4) full fiscal quarters ending on or immediately
prior to such date of determination.
(2) Maximum Indebtedness to Net Worth Ratio. As of the end of each
fiscal quarter commencing March 31, 1998, the Indebtedness to Net
Worth Ratio shall not exceed 2.5:1.0. "Indebtedness to Net Worth
Ratio" shall mean on any date for which the same is to be
determined, the ratio of (i) indebtedness of the Borrower less the
amount of 1)contingent liabilities incurred due to the Borrower's
outstanding Letters of Credit under the IBJ Loan Agreement
(hereinafter defined), and 2)operating leases permitted under
Borrower's current or any future Loan Agreement or Credit Agreement
with IBJ Xxxxxxxxx (the "IBJ Loan Agreement"), to (ii) Net Worth
determined as at such date.
(3) Net Income. Net Income shall not be less than $0 (which
represents losses), for each fiscal quarter throughout the term of
the Loan. "Net Income" shall mean for any period for which the same
is to be determined, the consolidated net income of the Borrower and
its subsidiaries calculated in accordance with GAAP.
(4) Cross Default with financial covenants set forth in IBJ Loan
Agreement. Any default by Borrower of any of its financial covenants
set forth in the IBJ Loan Agreement or in any subsequent agreement
executed by Borrower in connection with any refinancing of the loan
evidenced by the IBJ Loan Agreement shall constitute an event of
default under this Loan Agreement.
Notwithstanding anything to the contrary herein, upon the written request
of Borrower to the Bank, (i) the Debt Service Coverage Ratio set forth above
shall be increased to 1.3:1.0 to be tested as set forth above, and (ii) the
Maximum Indebtedness to Net Worth Ratio, Net Income, and Cross Default financial
covenants set forth above shall be released PROVIDED Borrower has complied with
all of the following:
(1) The Loan to Value Ratio must be decreased to sixty-five (65%)
percent or less(either by normal amortization and/or a partial
prepayment);
(2) Borrower has provided a new appraisal of the Premises to the
Bank evidencing a Loan to Value Ratio of sixty-five (65%) percent or less
prepared by a Bank approved appraiser and in form satisfactory to the
Bank;
(3) Borrower is not in default under any financial covenants set
forth in the IBJ Agreement; and
(4) Borrower is not in default under any of the Loan Documents.
7. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
(a) The Borrower is a corporation duly organized and existing under the
laws of the State of New York and is authorized to do business in the State of
New York and, that it has full corporate power to execute this Agreement, the
Note and all other Loan Documents and do all things required of it hereunder,
and that the Borrower's main office for doing business is as indicated at the
beginning of this Agreement;
(b) The Borrower maintains offices at the following location(s):
00 Xxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000;
(c) The Borrower's most recent financial statement as submitted to the
Bank fairly represents the Borrower's financial condition as of the dates shown;
that the Borrower is the owner of all of the assets and property as shown in the
financial statement, subject to no liens, encumbrances or charges whatever other
than as set forth in said financial statement, and that the Borrower has no
liabilities other than shown on said financial statement;
(d) The Borrower is the owner of the Collateral, free and clear of any
liens, claims or rights of any other party, except as listed in Schedule A;
(e) There is no action, litigation, suit, proceeding, inquiry or
investigation, at law or in equity, or before or by any court, public board or
body, pending, threatened against or affecting the Borrower which involves the
possibility of materially adversely affecting the property, business, profits or
conditions (financial or otherwise) of the Borrower;
(f) The Borrower has filed all required federal, state and local tax
returns and has paid all taxes shown on such returns as they become due;
(g) The execution and delivery of this Agreement, and all other Loan
Documents will not violate any provision of this Agreement or of any other
agreement or instrument to which the Borrower is a party for which waivers of
same have not been obtained;
(h) All necessary corporate action to authorize the Borrower's entry into
this Agreement and the execution of the Loan Documents has been taken and that
the Loan Documents when executed by the Borrower shall be valid and binding
obligations of the Borrower enforceable in accordance with their terms;
(i) The execution, delivery and performance of the Loan Documents, the
consummation of the transactions therein contemplated and compliance with the
provisions of each by the Borrower does not and will not (i) conflict with,
violate or result in a breach of any of the terms or provisions of the
certificate of incorporation or by-laws of the Borrower, (ii) require consent
which has not hereto been received or will result in a breach or default of any
credit agreement, indenture, purchase agreement, mortgage, deed of trust,
commitment, guaranty agreement, or any other instrument to which the Borrower is
a party, or by which the Borrower may be bound or affected for which waivers of
same have not been obtained, or (iii) conflict with or violate any existing law,
rule, regulation, judgment, order or decree of any government, governmental
instrumentality, or court, domestic or foreign, having jurisdiction over the
Borrower or any of its properties;
(j) The Borrower possesses all licenses, trademarks, trademark rights, and
tradenames which are required for the conduct of its business without conflict
with the rights of others.
8. NEGATIVE COVENANTS
While the Loan remains outstanding, the Borrower agrees that it will not,
without prior written consent of the Bank:
(a) Merge or consolidate with any other person, firm, corporation or
business if (i) Borrower is not the surviving corporation, or (ii) the surviving
entity has a lower credit rating than Borrower; or
(b) Sell, lease, assign, transfer or otherwise dispose of any significant
assets or property, except in the normal course of business as presently
conducted, and for full and adequate consideration.
9. AFFIRMATIVE COVENANTS
While the Loan remains outstanding, the Borrower agrees that it will:
(a) Make all payments required under the Note;
(b) Furnish the Bank with copies of Financial Statements and other
financial documentation as set forth herein;
(c) Pay and discharge any and all taxes, assessments and governmental
charges on the due date thereof, unless the same are being contested by the
Borrower in good faith and provided such contest does not impair the Bank's
security;
(d) Timely comply with all of the terms and conditions of the Loan
Documents;
(e) Keep all of its property insured by insurance companies licensed to do
business in New York and in such other state(s) where the property is located
against loss or damage by fire or other risk usually insured against by other
owners or users of such properties in similar businesses under extended coverage
endorsement and against theft, burglary, and pilferage together with such other
hazards as the Bank may from time to time reasonably request, in amounts
satisfactory to the Bank. The Borrower shall deliver the policy or policies of
such insurance to the Bank. All such insurance shall contain endorsements in
form satisfactory to the Bank providing that the insurance shall not be
cancelable except upon thirty (30) days prior written notice to the Bank and
showing the Bank as a party insured as its interest may appear. The Borrower
shall promptly notify the Bank of any event or occurrence causing a material
loss or decline in value of property insured or the existence of an event
justifying a material claim under any insurance and the estimated amount
thereof;
(f) Keep the Bank fully informed as to all matters that may affect the
Loan;
(g) Preserve and maintain its assets and keep the same in good order and
condition;
(h) If the Bank so reasonably requires, provide the Bank with an appraisal
or appraisals of the Premises subsequent to the closing of the Loan but not more
often than once every twelve (12) months except as otherwise set forth herein.
All costs of such future appraisals shall be paid by the Borrower.
10. DEFAULT
Each of the following shall be an "Event of Default" under this Agreement:
(a) The occurrence of an Event of Default under the Note, any of the Loan
Documents; or
(b) Borrower shall fail to perform any other obligation required to be
performed under this Agreement or any other Loan Document, for thirty (30) days
after receipt of notice from the Bank of such failure; or
(c) Any warranty, representation or other statement by or on behalf of
Borrower in any Loan Document or instrument furnished in compliance with or in
reference to any Loan Document proves in the Bank's reasonable opinion to be
false or misleading in any material respect; or
(d) Borrower shall generally not be paying debts as they become due or
file a petition or seek relief under or take advantage of any insolvency law;
make an assignment for the benefit of creditors; commence a proceeding for the
appointment of a receiver, trustee, liquidator, custodian or conservator of
Borrower or of the whole or substantially all of Borrower's property or of any
collateral pledged as security for the Note; or if Borrower shall file a
petition or an answer to a petition under any chapter of the Bankruptcy Reform
Act of 1978, as amended (or any successor statute thereto), or file a petition
or seek relief under or take advantage of any other similar law or statute of
the United States of America, any State thereof, or any foreign country or
subdivision thereof; or
(e) A Court of competent jurisdiction shall enter an order, judgment or
decree appointing or authorizing a receiver, trustee, liquidator, custodian or
conservator of Borrower or of the whole or substantially all of Borrower's
property, or any portion of the collateral pledged as security for the Note, or
enter an order for relief against Borrower in any case commenced under any
chapter of the Bankruptcy Reform Act of 1978, as amended (or any successor
statute thereto), or grant relief under any other similar law or statute of the
United States of America, any State thereof, or any foreign country or
subdivision thereof and the same is not stayed or discharged within sixty (60)
days of entry; or
(f) Under the provisions of any law for the relief or aid of debtors, a
court of competent jurisdiction or a receiver, trustee, liquidator, custodian or
conservator shall assume custody or control or take possession from Borrower of
all or substantially all of Borrower's property or any portion of any collateral
pledged as security for the Note; or
(g) There is commenced against Borrower any proceeding for any of the
foregoing relief or if a petition is filed against Borrower under any chapter of
the Bankruptcy Reform Act of 1978, as amended (or any successor statute
thereto), or under any other similar law or statute of the United States of
America, any State thereof, or any foreign country or subdivision thereof, and
such proceeding or petition remains undismissed for a period of sixty (60) days
or if Borrower by any act indicates consent to, approval of or acquiescence in
any such proceeding or petition; or
(h) The Bank receives a notice to creditors with regard to a bulk transfer
by Borrower pursuant to Article VI of the Uniform Commercial Code; or
(i) In the event that (a) any entity then having a lesser credit rating
than Borrower shall acquire beneficial ownership of a majority interest in the
voting stock of Borrower, or (b) the Borrower shall merge with such an entity
and shall not be the surviving corporation; or
(j) Borrower shall fail to satisfy a final judgment entered against it for
the payment of money within thirty (30) days from entry or affirmance, and in
any event, prior to any execution or enforcement thereof; or
(k) Borrower shall be in default under any other agreement or document
with the Bank.
If an Event of Default occurs or, if an event which, but for the passage
of time, the giving of notice or both (unless same is required under the Loan
Documents), would constitute an Event of Default, the Bank may declare the Loan
and any other Obligations to be immediately due and payable and the Bank shall
have, in addition to all other rights and remedies including those set forth in
the Mortgage and in the Assignment of Leases and Rents, those of a secured party
under the Uniform Commercial Code of the State of New York including without
limitation, the right to institute foreclosure proceedings and the right to take
possession of all Collateral, and for that purpose the Bank may enter the
Premises where the Collateral may be situated and remove the same therefrom
without legal process. At the request of the Bank, if applicable, Borrower (i)
will disclose the exact location of any personal property Collateral, (ii)
assist in the collection of any personal property Collateral, and (iii) assemble
any personal property Collateral at a place to be designated by the Bank. The
requirements of reasonable notice shall be met if the Bank gives to the Borrower
at least five (5) days prior written notice of the time and place of any public
sale of any personal property Collateral or if the time after which any private
sale or any other intended disposition is to be made. For the purpose of
realizing the Bank's rights in the Collateral, the Bank may endorse notes,
checks, drafts, money orders, documents of title or other evidences of payment,
shipment or storage or endorse any other forms of Collateral on behalf of and in
the name of Borrower and may compromise and settle claims and otherwise
generally deal with the Collateral. The Borrower hereby irrevocably appoints the
Bank as its lawful attorney-in-fact with full power of substitution for the
Borrower in its name, place and stead to take all actions with respect to the
Collateral permitted hereunder.
Any sale or disposition of Collateral by the Bank shall be done in a
commercially reasonable manner. All decisions with respect to sale or
disposition of the Collateral shall be made solely by the Bank.
All proceeds received from the disposition and/or collection of Collateral
shall be applied by the Bank, in its discretion and in such order as it elects,
to (i) the payment of all expenses incurred in connection with the sale and/or
collection of the Collateral, including reasonable attorney's fees and other
expenses and disbursements and the reasonable expenses of retaking, collecting,
holding, preparing for sale, sale and the like and (ii) the payment of all
interest, principal and other sums due under the Loan Documents.
11. INDEMNIFICATION
The Bank by virtue of the pledge and assignment of the Collateral to it
hereunder shall not be deemed to have assumed the Borrower's obligations under
the Collateral or be responsible for servicing the Collateral and the Borrower
shall and does hereby agree to defend, indemnify and hold the Bank harmless of
and from any and all liability of any name, nature or kind which may arise or be
alleged to have arisen as a result of the pledge and assignment of the
Collateral to the Bank hereunder.
12. FEES AND EXPENSES
All filing fees, recording costs and all other fees or charges, including
reasonable attorneys fees, incurred by the Bank in connection with the
preparation of this Agreement and the other Loan Documents and in perfecting and
defending the Bank's security interests in the Collateral and its rights
hereunder, shall be deemed to be sums payable under the Note and secured by the
Collateral and shall be paid by the Borrower on demand.
13. GENERAL PROVISIONS
(a) Inspection. The Bank may examine the Borrower's books and records with
respect to the Collateral and this Agreement at all reasonable times to insure
compliance with the terms of the Loan Documents. Additionally, the Borrower
hereby agrees to allow the Bank, its personnel and representatives, access to
the Borrower's books and records for the purpose of conducting periodic audits.
Such audits shall be done as frequently as the Bank may reasonably determine is
necessary and Borrower shall pay the Bank an audit fee of $650.00 per audit, it
being understood that audit fees shall be charged only at such times as an Event
of Default has occurred and is continuing.
(b) Notice To Others. The Bank may, upon the occurrence of an Event of
Default or upon the occurrence of an event which, but for the passage of time,
the giving of notice or both unless same is required under the Loan Documents,
would constitute an Event of Default, notify any party obligated to make
payments to Borrower under any lease of the Premises or portion , to make
payment directly to the Bank.
(c) Paragraph Headings. Paragraph headings are for convenience and shall
not operate to change or modify any of the terms of this Agreement.
(d) Partial Invalidity. The invalidity or unenforceability of any clause
or part of this Agreement or any other Loan Documents shall not affect the
validity or enforceability of any other clause or part hereof.
(e) Waiver. Any waiver by the Bank of any breach or of any Event of
Default shall not be deemed a waiver of any other breach or Event of Default of
the same or any other provision.
(f) Rights Cumulative. All of the Bank's rights, remedies and powers,
whether pursuant to this Agreement or any other Loan Document or otherwise
("Rights") shall be cumulative and may be exercised independently or
concurrently, partially or wholly, and as often as the Bank deems expedient. No
delay or omission in exercising such Right or any other Right shall be construed
as a waiver or acquiescence to an Event of Default. Waiver of a Right or an
Event of Default on any one occasion shall not bar or be a waiver of such Right
or Event of Default on any future occasion.
(g) Governing Law. This Agreement shall be governed by the laws of the
State of New York.
(h) Waiver Of Jury Trial. The parties hereto hereby waive trial by jury in
any litigation in any court with respect to, in connection with, or arising out
of this Agreement, any other Loan Document or the Loan, or any instrument or
document delivered in connection with the Loan, or the validity, protection,
interpretation, collection or enforcement thereof, or any other claim or dispute
howsoever arising between the Borrower and the Bank.
(i) Notices. All notices and communications under this Agreement, except
those communications permitted by the terms of this Agreement to be made by
telephone, shall be: (i) personally delivered or (ii) given by registered or
certified mail, postage prepaid, return receipt requested, or (iii) forwarded by
overnight courier service, in each instance addressed to the addresses
hereinafter set forth, or such other addresses as the parties may for themselves
designate in writing as provided herein for the purpose of receiving notices
hereunder. All notices shall be in writing and shall be deemed given, in the
case of notice by personal delivery, upon actual delivery, and in the case of
appropriate mail or courier service, upon deposit with the U.S. Postal Service
or delivery to the courier service as follows:
If to Bank:
KeyBank National Association
0000 Xxxxx Xxxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Vice President
If to Borrower:
Vicon Industries, Inc.
00 Xxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, President
(j) Bank Approval. All Loan Documents and all other documents delivered by
Borrower to the Bank must be acceptable to the Bank and its Counsel.
(k) Entire Agreement. This Agreement and the other Loan Documents
constitute the complete agreement of the parties with respect to the subject
matters referred to herein and supersede all prior or contemporaneous
negotiations, promises, covenants, agreements or representations of every nature
whatsoever with respect thereto, all of which have become merged and finally
integrated into this Agreement. Each of the parties understands that in the
event of any subsequent litigation, controversy or dispute concerning any of the
terms, conditions or provisions of this Agreement, neither shall be permitted to
offer or introduce any oral evidence concerning any other oral promises or oral
agreements between the parties relating to the subject matter of this Agreement
not included or referred to herein and not reflected by a writing signed by the
Bank.
(l) Counterparts. This Agreement may be executed in counterparts and any
combination or group of counterparts bearing, in the aggregate, the signatures
of all of the parties hereto shall be deemed one Agreement and sufficient
execution of the within Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
VICON INDUSTRIES, INC. KEYBANK NATIONAL ASSOCIATION
By:____________________ By:_________________________
Xxxxxxx X. Xxxxx Xxxxx X. Xxxxxxxx
President Vice President
STATE OF NEW YORK )
) SS.:
COUNTY OF SUFFOLK )
On the 29th day of January, 1998, before me personally came XXXXXXX X.
XXXXX, to me known, who being by me duly sworn, did depose and say that he has
an address c/o Vicon Industries, Inc. 00 Xxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx; that
he is the President of VICON INDUSTRIES, INC., the corporation described in and
which executed the foregoing instrument, and he signed his name thereto by order
of said corporation.
--------------------------
NOTARY PUBLIC
STATE OF NEW YORK )
) SS.:
COUNTY OF SUFFOLK )
On the 29th day of January, 1998, before me personally came XXXXX X.
XXXXXXXX, to me known, who being by me duly sworn, did depose and say that he
has an address located c/o KeyBank National Association, 0000 Xxxxx Xxxxxxx,
Xxxxxxxx, Xxx Xxxx; that he is a Vice President at KEYBANK NATIONAL ASSOCIATION,
the banking association described in and which executed the foregoing
instrument, and he signed his name thereto by like order of said association.
--------------------------
NOTARY PUBLIC
SCHEDULE "A"
PRIOR LIENS, CLAIMS OR RIGHTS OF
OTHERS IN AND TO COLLATERAL
IBJ Xxxxxxxxx Business Credit Corporation - security
interest in accounts and equipment
Chugai Boyeki (America) Corp. - security
interest in accounts and equipment
