Exhibit 10.1
TD Bank
MODIFICATION AGREEMENT
This MODIFICATION AGREEMENT is entered into as of October 31, 2011, between
The Xxxxx Electronics Corporation, a New York corporation, with an address of
00 Xxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000 (the "Borrower") and TD Bank, N.A.,
a National Association with an address of 0000 Xxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx
00000 (the "Bank")
WHEREAS, the Bank established a revolving line of credit (the "Revolving
Loan") for Borrower which matured on October 31, 2011 (the Maturity Date)
respecting which Bank agreed to Lend to Borrower upon Borrower's request, but
subject to the terms and conditions set forth in various loan documents, of up
to Five Hundred Thousand Dollars and Zero Cents ($500,000 00) (the "Revolving
Loan Amount");
WHEREAS, the Revolving Loan is evidenced by that certain Revolving Term Note,
dated April 20, 2009 (as previously amended, modified or supplemented, the
"Note") by the Borrower in favor of the Bank in the face amount of the
Revolving Loan Amount;
WHEREAS, in connection with the Revolving Loan, Borrower entered into that
certain Loan and Security Agreement, dated April 20, 2009 (as previously
amended, modified or supplemented, the "Loan Agreement");
WHEREAS, the Loan Agreement and the Note and all other documents and
instruments executed in connection with or relating to the Loan are referred
to herein, collectively, as the "Loan Documents"; and all collateral granted
to the Bank to secure the Loan is referred to herein, collectively, as the
"Collateral";
WHEREAS, the Borrower has requested and the Bank has agreed to reduce the
amount of availability under the Loan Documents;
WHEREAS, the Borrower and the Bank have agreed to modify the Loan and the Loan
Documents in accordance with the terms of this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Bank and the Borrower
mutually agree as follows:
1 MODIFICATION
1.1 Recitals and Representations Accurate. The above recitals are hereby made
a part of this Agreement and the Borrower acknowledges and agrees that each of
the recitals is true and correct.
1.2 Ratification. All of the terms, covenants, provisions, representations,
warranties, and conditions of the Loan Documents, as amended or modified
hereby, are ratified, acknowledged, confirmed, and continued in full force and
effect as if fully restated herein.
1.3 Reduced Availability. Availability under the Loan Documents shall be
reduced from Five Hundred Thousand Dollars and Zero Cents ($500,000.00) to
Three Hundred Seventy Five Thousand Dollars and Zero Cents ($375,000.00) (the
"Revised Borrowing Limit") and all references to availability in the Loan
Documents shall be modified accordingly. All amounts outstanding under the
Loan Documents in excess of the Revised Borrowing Limit, and all fees due and
owing under the Loan Documents, shall be paid to the Bank simultaneously with
the execution of this Agreement.
1.4 Amended and Restated Note. The Note shall be amended and restated in the
form attached hereto as Exhibit A (the "Amended Note").
1.5 Representations and Warranties. The Borrower hereby represents and
warrants to the Bank that:
(a) The person executing this Agreement is duly authorized to do so and to
bind the Borrower to the terms hereof;
(b) Each of the Loan Documents is a valid and legal binding obligation of the
Borrower, enforceable in accordance with its terms, and is not subject to any
defenses, counterclaims, or offsets of any kind;
(c) All financial statements delivered to the Bank were true, accurate and
complete, in all material respects, as of the date of delivery to the Bank;
(d) Since the date of the Loan Documents there has been no material adverse
change in the condition, financial or otherwise, of the Borrower, except as
disclosed to the Bank in writing;
(e) There exists no action, suit, proceeding or investigation, at law or in
equity, before any court, board, administrative body or other entity, pending
or threatened, affecting the Borrower or its property, wherein an unfavorable
decision, ruling or finding would materially adversely affect the business
operations, property or financial condition of the Borrower; and
(f) There exists no event of default, or other circumstance that with the
passage of time or giving of notice or both will become an event of default,
under any of the Loan Documents.
1.6 Interest, Fees, Costs and Expenses. The Borrower shall, simultaneously
with the execution of this Agreement, pay to the Bank all accrued interest
owing on the Loan as of the date of this Agreement together with all fees,
costs and expenses due and owing to the Bank by the Borrower under the Loan
Documents.
1.7 Fees. The Borrower agrees to pay the Bank a documentation fee in the
amount of $200.00 at the time of the execution and delivery of this agreement.
The Borrower agrees, upon execution of the Agreement, to pay the following
fees in connection with this modification: Certificate of Good Standing/
Existence Fee of $12.00 and Judgment Search Fee $20.00.
2. MISCELLANEOUS
2.1 Set-Off. The Borrower hereby grants to the Bank a continuing lien and
security interest in any and all deposits or other sums at any time credited
by or due from the Bank to the Borrower and any cash, securities, instruments
or other property of the Borrower in the possession of the Bank, whether for
safekeeping or otherwise, or in transit to or from the Bank (regardless of the
reason the Bank had received the same or whether the Bank has conditionally
released the same) as security for the full and punctual payment and
performance of all of the liabilities and obligations of the Borrower to the
Bank and such deposits and other sums may be applied or set off against such
liabilities and obligations of the Borrower to the Bank at any time, whether
or not such are then due, whether or not demand has been made and whether or
not other collateral is then available to the Bank.
2.2 Release of the Bank. The Borrower hereby confirms that as of the date
hereof it has no claim, set-off, counterclaim, defense, or other cause of
action against the Bank including, but not limited to, a defense of usury, any
claim or cause of action at common law, in equity, statutory or otherwise, in
contract or in tort, for fraud, malfeasance, misrepresentation, financial
loss, usury, deceptive trade practice, or any other loss, damage or liability
of any kind, including, without limitation, any claim to exemplary or punitive
damages arising out of any transaction between the Borrower and the Bank. To
the extent that any such set-off, counterclaim, defense, or other cause of
action may exist or might hereafter arise based on facts known or unknown that
exist as of this date, such set-off, counterclaim, defense and other cause of
action is hereby expressly and knowingly waived and released by the Borrower.
The Borrower acknowledges that this release is part of the consideration to
the Bank for the financial and other accommodations granted by the Bank in
this Agreement.
2.3 Costs and Expenses. The Borrower shall pay to the Bank on demand any and
all costs and expenses (including, without limitation, reasonable attorneys'
fees and disbursements, court costs, litigation and other expenses) incurred
or paid by the Bank in establishing, maintaining, protecting or enforcing any
of the Bank's rights or any of the obligations owing by the Borrower to the
Bank, including, without limitation, any and all such costs and expenses
incurred or paid by the Bank in defending the Bank's security interest in,
title or right to, the Collateral or in collecting or attempting to collect or
enforcing or attempting to enforce payment of the Loan.
2.4 Indemnification. The Borrower shall indemnify, defend and hold the Bank
and its directors, officers, employees, agents and attorneys (each an
"indemnitee") harmless against any claim brought or threatened against any
indemnitee by the Borrower or any guarantor or endorser of the obligations of
the Borrower to the Bank, or any other person (as well as from attorneys' fees
and expenses in connection therewith) on account of the Bank's relationship
with the Borrower, or any guarantor or endorser of the obligations of the
Borrower to the Bank (each of which may be defended, compromised, settled or
pursued by the Bank with counsel of the Bank's election, but at the expense of
the Borrower), except for any claim arising out of the gross negligence or
willful misconduct of the Bank. The within indemnification shall survive
payment of the obligations of the Borrower to the Bank, and/or any
termination, release or discharge executed by the Bank in favor of the
Borrower.
2.5 Severability. If any provision of this Agreement or portion of such
provision or the application thereof to any person or circumstance shall to
any extent be held invalid or unenforceable, the remainder of this Agreement
(or the remainder of such provision) and the application thereof to other
persons or circumstances shall not be affected thereby.
2.6 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be an original, but all of which shall constitute but one
agreement.
2.7 Complete Agreement. This Agreement and the other Loan Documents constitute
the entire agreement and understanding between and among the parties hereto
relating to the subject matter hereof, and supersedes all prior proposals,
negotiations, agreements and understandings among the parties hereto with
respect to such subject matter.
2.8 Binding Effect of Agreement. This Agreement shall be binding upon and
inure to the benefit of the respective heirs, executors, administrators, legal
representatives, successors and assigns of the parties hereto, and shall
remain in full force and effect (and the Bank shall be entitled to rely
thereon) until released in writing by the Bank. The Bank may transfer and
assign this Agreement and deliver the Collateral to the assignee, who shall
thereupon have all of the rights of the Bank; and the Bank shall then be
relieved and discharged of any responsibility or liability with respect to
this Agreement and the Collateral. Except as expressly provided herein or in
the other Loan Documents, nothing, expressed or implied, is intended to confer
upon any party, other than the parties hereto, any rights, remedies,
obligations or liabilities under or by reason of this Agreement or the other
Loan Documents.
2.9 Further Assurances. The Borrower will from time to time execute and
deliver to the Bank such documents, and take or cause to be taken, all such
other further action, as the Bank may request in order to effect and confirm
or vest more securely in the Bank all rights contemplated by this Agreement
(including, without limitation, to correct clerical errors) or to vest more
fully in or assure to the Bank the security interest in the Collateral or to
comply with applicable statute or law and to facilitate the collection of the
Collateral (including, without limitation, the execution of stock transfer
orders and stock powers, endorsement of promissory notes and instruments and
notifications to obligors on the Collateral). To the extent permitted by
applicable law, the Borrower authorizes the Bank to file financing statements,
continuation statements or amendments without the Borrower's signature
appearing thereon, and any such financing statements, continuation statements
or amendments may be signed by the Bank on behalf of the Borrower, if
necessary, and may be filed at any time in any jurisdiction. The Bank may at
any time and from time to time file financing statements, continuation
statements and amendments thereto which contain any information required by
the New Jersey Uniform Commercial Code (Title 12A N.J.S.A.) as amended from
time to time (the "Code") for the sufficiency or filing office acceptance of
any financing statement, continuation statement or amendment, including
whether the Borrower is an organization, the type of organization and any
organization identification number issued to the Borrower. The Borrower agrees
to furnish any such information to the Bank promptly upon request. In
addition, the Borrower shall at any time and from time to time take such steps
as the Bank may reasonably request for the Bank (i) to obtain an
acknowledgment, in form and substance satisfactory to the Bank, of any bailee
having possession of any of the Collateral that the bailee holds such
Collateral for the Bank, (ii) to obtain "control" (as defined in the Code) of
any Collateral comprised of deposit accounts, electronic chattel paper, letter
of credit rights or investment property, with any agreements establishing
control to be in form and substance satisfactory to Bank, and (iii) otherwise
to insure the continued perfection and priority of the Bank's security
interest in any of the Collateral and the preservation of its rights therein.
The Borrower hereby constitutes the Bank its attorney-in-fact to execute, if
necessary, and file all filings required or so requested for the foregoing
purposes, all acts of such attorney being hereby ratified and confirmed; and
such power, being coupled with an interest, shall be irrevocable until this
Agreement terminates in accordance with its terms, all obligations of the
Borrower to the Bank are irrevocably paid in full and the Collateral is
released.
2.10 Amendments and Waivers. This Agreement may be amended and the Borrower
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, if the Borrower shall obtain the Bank's prior
written consent to each such amendment, action or omission to act. No delay or
omission on the part of the Bank in exercising any right hereunder shall
operate as a waiver of such right or any other right and waiver on any one or
more occasions shall not be construed as a bar to or waiver of any right or
remedy of the Bank on any future occasion.
2.11 Terms of Agreement. This Agreement shall continue in force and effect so
long as any obligation of the Borrower to Bank shall be outstanding and is
supplementary to each and every other agreement between the Borrower and Bank
and shall not be so construed as to limit or otherwise derogate from any of
the rights or remedies of Bank or any of the liabilities, obligations or
undertakings of the Borrower under any such agreement, nor shall any
contemporaneous or subsequent agreement between the Borrower and the Bank be
construed to limit or otherwise derogate from any of the rights or remedies of
Bank or any of the liabilities, obligations or undertakings of the Borrower
hereunder, unless such other agreement specifically refers to this Agreement
and expressly so provides.
2.12 Notices. Any notices under or pursuant to this Agreement shall be deemed
duly received and effective if delivered in hand to any officer of agent of
the Borrower or Bank, or if mailed by registered or certified mail, return
receipt requested, addressed to the Borrower or Bank at the address set forth
in this Agreement or as any party may from time to time designate by written
notice to the other party; notwithstanding the foregoing notices to the Bank
with respect to accounting and collateral release and notices to the Trustee
pursuant to a Deed of Trust shall be sent to the Bank as follows: Attention:
VP Loan Servicing, Loan Services, 0000 Xxxxxx Xxx, Xx. Xxxxxx XX 00000.
2.13 New Jersey Law. This Agreement is intended to take effect as a sealed
instrument and has been executed or completed and is to be performed in New
Jersey, and it and all transactions thereunder or pursuant thereto shall be
governed as to interpretation, validity, effect, rights, duties and remedies
of the parties thereunder and in all other respects by the laws of New Jersey
without giving effect to the conflicts of laws principles thereof.
2.14 JURY WAIVER. BORROWER AND BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, WAIVE
(A) ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN
CONNECTION WITH THIS AGREEMENT, THE OBLIGATIONS, ALL MATTERS CONTEMPLATED
HEREBY AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND (B) AGREE NOT TO SEEK
TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CAN
NOT BE, OR HAS NOT BEEN WAIVED. THE BORROWER CERTIFIES THAT NEITHER THE BANK
NOR ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT THE BANK WOULD NOT IN THE EVENT OF ANY SUCH PROCEEDING SEEK
TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY.
Executed under seal on this day October 31, 2011.
Borrower:
The Xxxxx Electronics Corporation
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx, President and CEO
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Treasurer
Accepted: TD Bank, NA
By: /s/ Xxxxx X. Xxxxxx
Name Xxxxx X. Xxxxxx,
Title: Duly Authorized Representative
