EXHIBIT A
SECURED DEMAND LOAN FACILITY
SECURED DEMAND LOAN FACILITY, dated as of January 14, 1999, among
CALCOMP TECHNOLOGY, INC., a Delaware corporation ("Technology"), CALCOMP INC., a
California corporation ("CalComp"), TOPAZ TECHNOLOGIES, INC., a California
corporation ("Topaz"), and LOCKHEED XXXXXX CORPORATION, a Maryland corporation
(the "Lender").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, on the date hereof, the Board of Directors of Technology has
adopted a shut-down plan that contemplates adoption of a formal plan of complete
liquidation and dissolution;
WHEREAS, the Borrowers have requested the Lender to make available to
the Borrowers financing in an amount up to $51,000,000 to be used by the
Borrowers to fund the Plan; and
WHEREAS, the Lender has agreed to provide financing for such purposes in
an amount up to the Maximum Available Amount (as defined herein) in effect from
time to time on the terms, and subject to the conditions, set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower and the Lender agree
as follows:
SECTION 1. DEFINITIONS. The following terms, as used herein, shall have
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the following respective meanings:
"Agreement" means this Secured Demand Loan Facility, as amended,
restated, extended or otherwise modified from time to time in accordance with
the terms hereof.
"Authorized Officer" means the President and Chief Executive
Officer and the Senior Vice President and Chief Financial Officer of Technology.
"Bankruptcy Event" means Technology or any of its Subsidiaries
shall have commenced a voluntary case or other proceeding or an involuntary case
or other proceeding shall have been commenced against such Person seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment by a court of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its Property, or such Person shall make a general assignment
for the benefit of its creditors. The term "Bankruptcy Event" shall not include
a voluntary dissolution proceeding under applicable law as contemplated by the
Plan.
Exhibit A-1
"Borrowers" means the collective reference to Technology, CalComp and
Topaz; individually, a "Borrower."
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York are authorized or directed to
close.
"Cash Management Agreement" means the Cash Management Agreement dated
July 23, 1996 between Technology and the Lender, as amended through the date
hereof.
"Collateral" shall have the meaning given that term in the Security
Agreement.
"Concentration Account" means the account or accounts established and
maintained by Technology with banks acceptable to the Lender to collect all cash
receipts of any nature payable to Technology or its Subsidiaries as provided in
Section 4.1.
"Dollars" and the sign "$" means lawful money of the United States.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and any corporation or entity whose stock or capital ownership is owned or
controlled by any of the foregoing.
"Lien" means with respect to any property or asset (or any income or
profits therefrom) of any Person (in each case whether the same is consensual or
nonconsensual or arises by contract, operation of law, legal process or
otherwise) (a) any mortgage, lien, pledge, attachment, levy or other security
interest of any kind thereupon or in respect thereof, but not including the
interest of a third party in receivables sold by such Person to such third party
on a non-recourse basis or (b) any other arrangement, express or implied, under
which the same is subordinated, transferred, sequestered or otherwise identified
so as to subject the same to, or make the same available for, the payment or
performance of any liability in priority to the payment of the ordinary,
unsecured liabilities of such Person. For the purposes of this Agreement, a
Person shall be deemed to own subject to a Lien any asset that it has acquired
or holds subject to the interest of a vendor or lessor under any conditional
sale agreement, capital lease or other title retention agreement relating to
such asset.
"Liquidation Specialist" means an independent third-party liquidation
specialist, reasonably satisfactory to the Lender, retained by the Borrowers to
review, validate and, to the extent deemed necessary by the Lender in its sole
and absolute discretion, implement the Plan.
"Loan" means a loan made by the Lender to a Borrower pursuant to Section
2, or all such Loans, as the context may require.
"Maximum Available Amount" means $11,000,000, which amount may be
increased by the Lender, in its sole and absolute discretion, to an amount not
to exceed $51,000,000
Exhibit A-2
based on the Lender's review of the cost and cash flow forecast to be delivered
by the Borrowers pursuant to Section 4.2(a). Within 2 days of receipt of the
cost and cash flow forecast to be delivered by the Borrowers pursuant to Section
4.2(a), the Lender shall notify the Borrowers in writing of the Maximum
Available Amount then in effect.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a business trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means the detailed plan and budget submitted by the Borrowers and
reviewed and validated by the Liquidation Specialist pursuant to Section 4.2(a),
as amended from time to time with the written consent of the Lender.
"Prime Rate" means a fluctuating per annum rate of interest as shall be
in effect from time to time, which rate shall at all times be equal to the per
annum rate of interest publicly announced from time to time by Xxxxxx Guaranty
Trust Company of New York in New York as its "prime" rate. Any change in the
Prime Rate due to a corresponding change in Xxxxxx Guaranty Trust Company of New
York's "prime" rate shall take effect on the day specified in the public
announcement of such change.
"Property" means any estate or interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or intangible.
"Revolving Credit Agreement" means the Amended and Restated Revolving
Credit Agreement dated December 20, 1996 between the Borrowers and the Lender,
as amended through the date hereof.
"Security Agreement" means the Security Agreement of even date herewith
of the Borrowers in favor of the Lender.
"Subsidiary" means, as to any Person, any corporation, association,
partnership, joint venture or other business entity of which more than 50% of
the voting capital stock or other voting ownership interests is owned or
controlled directly or indirectly by such Person or by one or more of the
Subsidiaries of such Person or by a combination thereof, and, as to Technology,
"Subsidiary" shall also mean CalComp.
"Tax" means all taxes, levies, imposts, stamp taxes, sales tax, goods
and services tax, duties, charges to tax, fees, deductions, withholdings and any
restrictions or conditions resulting in a charge to tax, in each case imposed by
or payable to a government or governmental agency, and all penalty, interest and
other payments on or in respect thereof.
"Term of this Agreement" means the period from the date hereof to and
including the Termination Date.
"Termination Date" means the earlier of (i) July 15, 1999 and (ii) the
date on which the Lender notifies the Borrowers of termination based on (x) the
Lender's determination that the
Exhibit A-3
Borrowers' are not reasonably complying with, and making reasonable progress
with respect to, the Plan, which determination may be made in the sole and
absolute discretion of the Lender, (y) the occurrence of a Bankruptcy Event, or
(z) the breach by a Borrower of any of the provisions of this Agreement or the
Security Agreement, including, without limitation, any of the representations or
warranties made in this Agreement, the Security Agreement, or any certificate or
notice provided pursuant to this Agreement or the Security Agreement. The
termination of this Agreement for any reason shall in no way affect the Lender's
rights and remedies and ability to collect any amounts outstanding hereunder.
SECTION 2. THE LOANS.
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Section 2.1. Loans. During the Term of this Agreement, the Lender agrees,
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on the terms and conditions contained in this Agreement, to make Loans to the
Borrowers at any time prior to the Termination Date in an aggregate principal
amount not exceeding at any one time outstanding the Maximum Available Amount in
effect at the time the Loans are made; provided, however, that no Loan shall be
requested by a Borrower except to the extent that the funds which are projected
by the Borrower to be available to the Borrower during such period (other than
pursuant to this Agreement) are less than the projected cash requirements during
such period. The Borrowers shall repay Loans in accordance with Section 2.3.
Section 2.2. Method of Borrowing.
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(a) Requests for borrowing pursuant to Section 2.2(b) below may be made
by the Borrowers no more frequently than weekly and may only be made with
respect to the funding of the Plan for the period identified in the statement of
projections of costs and cash flows delivered pursuant to Section 4.2(b) (which
period shall in no event exceed two weeks) in respect of the request for
borrowing made pursuant to Section 2.2(b).
(b) With respect to each Loan made pursuant to Section 2.1 hereof, a
Borrower shall have complied with Section 4.2(b) with respect to such request
and shall give the Lender a written notice of borrowing notifying the Lender of
its request to borrow hereunder which notice will specify (i) the date of the
Loan, which date shall be a Business Day, (ii) the principal amount of the Loan
and (iii) a detailed description of the purposes for which the proceeds of the
Loan are to be used. The notice of borrowing shall be written and shall be
accompanied by a certificate of an Authorized Officer certifying that (i) the
proceeds of the Loan are to be used solely for the purposes described in the
notice, (ii) such purposes are in accordance with and in furtherance of the
Plan, (iii) no Bankruptcy Event has occurred, and (iv) no breach of this
Agreement or the Security Agreement (or any representation or warranty made in
any notice or document delivered pursuant hereto or thereto) has occurred.
Exhibit A-4
(c) The Lender shall have the right to accept or reject, in whole or in
part, any request for borrowing based on the Lender's determination that the
Borrowers are not reasonably complying with, and making reasonable progress with
respect to, the Plan, which determination may be made in Lender's sole and
absolute discretion. Nothing in this Agreement or any other document and no
course of dealing shall be deemed to imply any limitation on the discretionary
and demand nature of the Loans or to require that the Lender give any notice of
or reason for declining from time to time to make any Loan.
(d) If a Borrower gives the notice required by Section 2.2(b) with
respect to any Loan before 1:00 p.m. (Eastern Time), the Lender will accept or
reject that request, in whole or in part, and to the extent accepted, disburse
the proceeds of the Loan to the Borrowers in immediately available funds (i)
with respect to the initial request for borrowing hereunder, as soon as
practicable thereafter and (ii) with respect to any subsequent request for
borrowing, on the Business Day following the date of receipt of such notice. The
Lender will disburse all Loans to the Borrowers by deposit in the Concentration
Account.
Section 2.3. Repayment and Prepayment of the Loans.
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(a) The Borrowers, jointly and severally, promise and agree to repay to
the Lender all Loans, together with interest accrued through the date of
repayment, at the earlier to occur of (i) the Business Day following delivery of
written demand by the Lender or (ii) the Termination Date. Without prejudice to
any of the rights of the Lender arising under this Agreement, the Lender shall
have the right at any time and from time to time to demand repayment, in whole
or in part, of any Loans, together with any accrued but unpaid interest thereon.
(b) The Lender may, in its sole discretion, set off any amounts due and
owing to it by the Borrowers hereunder (and not otherwise paid by the Borrowers)
against amounts owed by the Lender and its Subsidiaries (other than Technology
and its Subsidiaries) to the Borrowers.
(c) The Borrowers may repay or prepay the outstanding principal amount
of Loans in whole or in part on any Business Day. Each such repayment or
prepayment shall be accompanied by payment of all accrued interest thereon and
may be made at any time without cost or penalty of any kind.
Section 2.4. Evidence of the Loans.
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(a) The Loans made to the Borrowers shall be evidenced by this Agreement
and by a loan account in a Borrower's name to be maintained by the Lender. All
Loans shall be payable by the Borrowers to the order of the Lender on demand and
in no event later than the Termination Date.
(b) The Lender's loan account shall reflect appropriate notations
evidencing the date, the amount and the maturity of each Loan and the date and
amount of each payment of principal made by the Borrowers with respect thereto.
The loan account shall be conclusive evidence, absent manifest error, of the
amount of the Loans, the interest accrued and payable thereon and all interest
and principal payments made thereon. Any failure to record or any error
Exhibit A-5
therein shall in no way limit or otherwise affect the obligations of the
Borrowers hereunder to pay any amount owing with respect to the Loans.
Section 2.5. Interest Rates and Payments. (a) Loans shall bear interest on
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the outstanding principal amount thereof at a rate per annum equal to the Prime
Rate as in effect from time to time. Interest on Loans shall accrue monthly and
be payable on the earlier to occur of (i) the Business Day following demand by
the Lender or (ii) the Termination Date. The Lender will notify the Borrowers
in writing, upon request of a Borrower, of the amount of interest payable
hereunder with respect to Loans which notice will set forth in reasonable detail
the calculation of such amount.
(b) Overdue principal of and, to the extent permitted by law, overdue
interest on the Loans shall bear interest, payable on demand of the Lender, for
each day until paid at a rate per annum equal to the Prime Rate plus 2% (two
percent).
Section 2.6. General Provisions as to Payments. The Borrowers shall make
---------------------------------
each payment of principal of, and interest on, the Loans hereunder in Dollars on
the date when due in funds immediately available in the account that the Lender
shall designate from time to time. Whenever any payment of principal of, or
interest on, the Loans shall be due on a day that is not a Business Day, the
date for payment thereof shall be extended to the next succeeding Business Day.
If the date for any payment of principal is extended by operation of law or
otherwise, interest shall be payable for such extended time at a rate per annum
equal to the Prime Rate.
Section 2.7. Computation of Interest. Interest on Loans shall be computed
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for each day on the basis of a year of 365 or 366 days, as the case may be.
Section 2.8. No Deduction. All amounts payable by the Borrowers under this
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Agreement are payable without deduction or set-off.
Section 2.9. Use of Proceeds. The proceeds of Loans will be employed by the
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Borrowers only for purposes of effecting the transactions contemplated by the
Plan, will be used only to pay for the specified purpose and for no more than
the specified amount set forth in the budget referred to in Section 4.2(a) below
and may only be used for the purposes described in the request for borrowing for
such Loan to the extent accepted by the Lender.
Section 2.10. Security. Simultaneously with the execution and delivery of
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this Agreement, the Borrowers shall execute and deliver the Security Agreement
in substantially the form attached hereto as Exhibit B, securing the obligations
of the Borrowers under this Agreement by the Collateral (as defined in the
Security Agreement).
SECTION 3. REPRESENTATIONS AND WARRANTIES.
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The Borrowers, jointly and severally, hereby represent and warrant to the Lender
that as of the date hereof:
Section 3.1. Corporate Existence and Power. Each Borrower is a corporation
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duly organized, validly existing and in good standing under the laws of the
jurisdiction of its
Exhibit A-6
incorporation, has full power and authority to carry on its business as now
being conducted and to own its properties and is duly licensed or qualified and
in good standing as a foreign corporation in each other jurisdiction in which
failure to qualify would have a material adverse effect on the Borrowers'
ability to perform this Agreement. Each Borrower is in compliance with its
charter and bylaws and all other organizational or governing documents.
Section 3.2. Corporate Authorization. The execution, delivery and
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performance by a Borrower of this Agreement and the Security Agreement are
within the Borrower's corporate power and have been duly authorized by all
necessary corporate action. The execution, delivery and performance by
Technology of this Agreement and the Security Agreement and the transactions
contemplated hereby and thereby have been approved by at least a majority of the
disinterested directors of Technology.
Section 3.3. Binding Effect. This Agreement and the Security Agreement
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constitutes the valid and binding obligation of the Borrowers enforceable
against the Borrowers in accordance with its terms.
Section 3.4. No Contravention. The Borrowers' execution and delivery of,
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and performance of its obligations under, this Agreement and the Security
Agreement do not, and consummation of the transactions contemplated hereby will
not, result in:
(a) a violation of or a conflict with any provision of the charter,
bylaws or any other organizational or governing document of a Borrower;
(b) a breach or default under any provision of any contract, agreement,
lease, commitment, license, franchise or permit to which a Borrower is a party
or by which any property of a Borrower is bound;
(c) a violation of any statute, rule, regulation, ordinance, order,
judgment, writ, injunction, decree or award of any judicial, administrative,
governmental or other authority or of any arbitrator; or
(d) an imposition on the business of a Borrower or on any of its
properties of any Lien (other than as contemplated by the Security Agreement).
Section 3.5. Litigation. There is no action, suit, litigation or
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proceeding at law or in equity or by or before any Governmental Authority now
pending against or, to the knowledge of the Borrowers, threatened against
Technology or any of its Subsidiaries or any of their respective Properties
other than as described in Technology's periodic reports filed pursuant to the
Securities Exchange Act of 1934.
Section 3.6. Licenses and Authorizations. Technology and its Subsidiaries
---------------------------
have obtained all licenses, permits and certificates and all other approvals,
orders, authorizations and consents and have made all declarations, filings and
registrations which are necessary for the ownership by Technology and its
Subsidiaries of their respective Properties and for the conduct by Technology
and its Subsidiaries of their respective businesses, except for those, which, if
not obtained or made,
Exhibit A-7
could not reasonably be expected to have a material adverse effect on the
Borrowers' ability to perform this Agreement and the Security Agreement. No
approval of or filing with any Governmental Authority is or will be necessary
for the valid execution, delivery or performance by the Borrowers of this
Agreement or for the performance by any of the Borrowers of any of the terms or
conditions hereof or thereof, except for such approvals as have been obtained.
Section 3.7. Liens. Technology and its Subsidiaries have good and marketable
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title to each of their respective Properties, free and clear of all material
Liens, except as specifically disclosed in Technology's periodic reports filed
pursuant to the Securities Exchange Act of 1934.
SECTION 4. AFFIRMATIVE COVENANTS.
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So long as this Agreement shall be in effect or any amount payable hereunder
remains unpaid, unless the Lender shall have waived compliance in writing, the
Borrowers agree that:
Section 4.1. Concentration Account. Technology will:
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(a) establish and maintain the Concentration Account;
(b) collect all cash receipts of any nature payable to Technology or any
of its Subsidiaries through lockbox services or other collection services
provided by banks approved by the Lender and cause all such cash receipts and
all other amounts collected by Technology or its Subsidiaries to be transferred
each Business Day to the Concentration Account by means of a banking settlement
system approved by the Lender;
(c) disburse and use funds from the Concentration Account solely for the
purposes of effecting the transactions contemplated by the Plan and disburse all
such funds prior to making any request for borrowing pursuant to Section 2.2(b).
Section 4.2. Notices, Reports and Forecasts. The Borrowers will promptly
------------------------------
furnish to the Lender:
(a) Within 14 days of the date of this Agreement, a detailed plan and
budget, including cost and cash flow forecasts, which the Borrowers determine,
in good faith and based on the review, evaluation and validation of the
Liquidation Specialist, will be necessary for consummation of the transactions
contemplated by the shut-down plan referred to in the first Recital of this
Agreement;
(b) (i) With respect to the initial request for borrowing pursuant to
Section 2.2(b), the Borrowers shall have delivered to the Lender, such detailed
information as the Lender shall request in its sole and absolute discretion and
(ii) with respect to any subsequent request for borrowing, at least 2 Business
Days prior to delivery of any request for borrowing pursuant to Section 2.2(b),
a detailed written report of all disbursements and receipts of Technology and
its Subsidiaries for the borrowing period preceding the borrowing period during
which such request is made, an accounting of the use of proceeds of Loans during
such period (i.e., a variance report with detailed explanations) and a statement
of projections of costs and cash flow for the period for which
Exhibit A-8
the proceeds of any Loan will be used, as well as any additional related reports
reasonably requested by the Lender; and
(c) Not later than the tenth day of each calendar month (or if not a
Business Day, the next Business Day), a written report of all disbursements and
receipts of Technology and its Subsidiaries during the preceding calendar month
and an accounting of the use of proceeds of Loans during such month certified by
the Liquidation Specialist and a written report of the progress through the end
of the preceding calendar month in disposing of and liquidating the assets of
Technology and its Subsidiaries and otherwise effecting the Plan, which report
shall contain such information as the Lender may reasonably request including,
but not limited to (i) the status of disposition of assets and receipt of
proceeds therefor (including with respect to any foreign entities or assets
controlled by Technology and its Subsidiaries), (ii) the costs incurred in
connection therewith, (iii) an explanation of any significant variances from the
costs and cash flow projections previously furnished to the Lender, and (iv) a
reasonable detailed update of the Plan, including the legal status of the
transactions contemplated thereby;
(d) Notice of any pending or threatened Bankruptcy Event and of any
pending or threatened litigation or other proceeding before any judicial,
administrative or arbitral body to which Technology or any of its Subsidiaries
is a party or any dispute which may exist between Technology or any of its
Subsidiaries and any Governmental Authority; and
(e) At the time the Borrower (or an Authorized Officer) furnishes the
information, reports, lists and computations required by this Agreement, the
Borrowers, jointly and severally, shall be deemed to have represented and
warranted to the Lender that each component of such information, reports, lists
and computations materially complies with the terms and conditions of this
Agreement and is true, correct and complete.
Section 4.3. Plan of Complete Liquidation and Dissolution, etc. Technology
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will, and will cause its Subsidiaries to:
(a) do or cause to be done all things necessary to effect the complete
liquidation and dissolution of Technology in as expeditious a manner as
practicable;
(b) comply with all material requirements of all applicable laws,
decrees, regulations and similar enactments and with all applicable judgments,
injunctions and other orders and awards of judicial, administrative,
governmental and other authorities and arbitrators in connection with the
consummation of the transactions contemplated by the Plan; and
(c) notify the Lender prior to any significant asset or stock
disposition, and allow the Lender and its counsel to participate in any
negotiations in respect thereof.
Section 4.4. Amended and Restated Revolving Credit Agreement. Technology
-----------------------------------------------
shall, and shall cause its Subsidiaries to, continue to comply with the
affirmative covenants set forth in Section 5 of the Revolving Credit Agreement,
except as otherwise specifically contemplated elsewhere in this Agreement or the
Security Agreement or in the Plan.
Exhibit A-9
SECTION 5. MISCELLANEOUS.
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Section 5.1. Notices. Unless otherwise specified herein, all notices,
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requests, demands or other communications to or from the parties hereto shall be
made by personal delivery, mail or telecopy and shall be effective upon receipt
by such party. Any such notice, request, demand or communication shall be
delivered or addressed as follows:
(i) if to the Borrowers, to them at:
CalComp Technology, Inc.
CalComp Inc.
c/o CalComp Technology, Inc.
0000 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telecopy: 000-000-0000
(ii) if to the Lender, to it at:
Lockheed Xxxxxx Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Vice President and Treasurer
Telecopy: 000-000-0000
with a copy to:
Lockheed Xxxxxx Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Block
Vice President and Associate
General Counsel
Telecopy: (000) 000-0000
or at such other address or telex number or telecopy number as any party hereto
may designate by written notice to the other party hereto.
Section 5.2. Amendments and Waivers; Cumulative Remedies.
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(a) None of the terms of this Agreement may be waived, altered or
amended except by an instrument in writing duly executed by the Borrowers and
the Lender; and
(b) No failure or delay on the part of the Lender in exercising any
right, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial
Exhibit A-10
exercise of any right, power or privilege under this Agreement preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. No failure or delay on the part of the Lender in exercising any
right, power or privilege under the Revolving Credit Agreement or the Cash
Management Agreement shall operate as a waiver or preclude any exercise of any
right, power or privilege hereunder. Nothing contained herein shall be deemed to
negate or novate the Revolving Credit Agreement, the Cash Management Agreement
or any other agreements between the parties hereto or otherwise release, modify
or terminate the Lender's rights thereunder. The rights and remedies provided
and contemplated by this Agreement and the Security Agreement are cumulative and
not exclusive of any rights or remedies provided by law and shall not be
effected by the termination of this Agreement for any reason.
Section 5.3. Successors and Assigns. This Agreement shall be binding upon
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and shall inure to the benefit of the Borrowers and the Lender and their
respective successors and assigns, provided that the Borrowers may not assign
any of their rights and obligations hereunder without the prior written consent
of the Lender
Section 5.4. Expenses and Withholding.
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(a) The Borrowers shall pay all out-of-pocket expenses of the Lender in
connection with the preparation and administration of this Agreement and all
out-of-pocket expenses incurred by the Lender (including reasonable fees and
disbursements of counsel and reasonable time charges of lawyers who may be
employees of the Lender) in connection with any collection and other enforcement
proceedings resulting herefrom.
(b) All payments to be made by or on behalf of the Borrowers under or in
connection with this Agreement are to be made without deduction or withholding
for or on account of any Tax. If any Tax is deducted or withheld from any
payment, the Borrowers shall promptly remit to the Lender the equivalent of the
amount so deducted or withheld together with relevant receipts, if available,
addressed to the Lender. If the Borrowers are prevented by operation of law or
otherwise from paying, causing to be paid or remitting such Tax, the interest
payable under this Agreement shall be increased to such rates as are necessary
to yield and remit to the Lender the principal sum advanced together with
interest at the rates specified in this Agreement after provision for payment of
such Tax. The Borrowers shall from time to time at the request of the Lender
execute and deliver any and all further instruments necessary or advisable to
give full force and effect to such increase in the rates of interest as are
necessary to yield to the Lender interest at the specified rates. The Borrowers
shall also indemnify, jointly and severally, the Lender in respect of any claim
or loss which it may suffer as a result of the delay or failure of the Borrowers
to make any such payment including penalties relating thereto or interest
thereon.
Section 5.5. Counterparts. This Agreement may be signed in any number of
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counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
Exhibit A-11
Section 5.6. Headings; Table of Contents. The section and subsection
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headings used herein and the Table of Contents have been inserted for
convenience of reference only and do not constitute matters to be considered in
interpreting this Agreement.
Section 5.7. Governing Law; Confessed Judgment.
---------------------------------
(a) This Agreement shall be construed in accordance with and governed by
the laws of the State of Maryland, without reference to the conflict of law
provisions of such laws.
(b) The Borrowers (i) hereby irrevocably submit to the jurisdiction of
the courts of the State of Maryland over any suit, action or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby and
(ii) hereby agree with the Lender that the courts of the State of Maryland will
have exclusive jurisdiction over any such suits, actions or proceedings. Final
judgment in any such suit, action or proceeding in any such court shall be
conclusive and binding upon the Borrowers and may be enforced in any court in
which a Borrower is subject to jurisdiction by suit upon such judgment provided
that service of process is effected as permitted by applicable law.
(c) IN THE EVENT THAT THE BORROWERS FAIL TO PAY ANY AMOUNT DUE HEREUNDER
(WHETHER UPON DEMAND OF THE LENDER OR UPON THE TERMINATION DATE) THE BORROWERS
HEREBY AUTHORIZE ANY ATTORNEY DESIGNATED BY THE LENDER OR ANY CLERK OF ANY COURT
OF RECORD TO APPEAR FOR THE BORROWERS IN ANY COURT OF RECORD AND CONFESS
JUDGMENT AGAINST THE BORROWERS IN FAVOR OF THE LENDER, WITHOUT PRIOR HEARING,
FOR AND IN THE AMOUNT OF ANY UNPAID LOANS PLUS INTEREST ACCRUED AND UNPAID
THEREON, TOGETHER WITH REASONABLE ATTORNEY'S FEES (NOT TO EXCEED 15% OF THE
UNPAID PRINCIPAL AMOUNT OF LOANS HEREUNDER). THE BORROWERS HEREBY RELEASE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ALL ERRORS AND ALL RIGHTS TO EXEMPTION,
APPEAL, STAY OF EXECUTION, INQUISITION, AND OTHER RIGHTS TO WHICH THE BORROWERS
MAY OTHERWISE BE ENTITLED UNDER THE LAWS OF THE UNITED STATES OF AMERICA OR OF
ANY STATE OR POSSESSION THEREOF NOW OR HEREAFTER IN EFFECT.
Section 5.8 Waiver of Jury Trial.
--------------------
EACH OF THE BORROWERS AND THE LENDER HEREBY JOINTLY AND SEVERALLY WAIVE TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO WHICH ANY OF THE BORROWERS AND THE LENDER
MAY BE PARTIES, ARISING OUT OF OR IN ANY WAY PERTAINING TO (A) THIS AGREEMENT,
(B) THE SECURITY AGREEMENT, OR (C) ANY COLLATERAL. THIS WAIVER CONSTITUTES A
WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR
PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS
AGREEMENT.
Exhibit A-12
This waiver is knowingly, willingly and voluntarily made by the Borrowers and
the Lender, and the Borrowers and the Lender hereby represent that no
representations of fact or opinion have been made by any individual to induce
this waiver of trial by jury or to in any way modify or nullify its effect. The
Borrowers and the Lender further represent that they have been represented in
the signing of this Agreement and in the making of this waiver by independent
legal counsel, selected of their own free will, and that they have had the
opportunity to discuss this waiver with counsel.
Section 5.9. Waiver of Lender Liability. The Borrowers each hereby
--------------------------
jointly and severally, knowingly and voluntarily, forever release, acquit and
discharge the Lender or any past, present or future agent, attorney, legal
representative, predecessor in interest, affiliate, successor, assign, employee,
director or officer of the Lender (collectively, the "Lender Group") from and of
any and all existing or future claims that the Lender or any of Lender Group is
in any way responsible for the past, current or future condition or
deterioration of the business operations and/or financial condition of any of
the Borrowers, and from and of any and all claims that the Lender or any of the
Lender Group breached any agreement to loan money or make other financial
accommodations available to the Borrower or to fund any operations of the
Borrower at any time. The Borrowers each further hereby jointly and severally,
knowingly and voluntarily forever release, acquit and discharge the Lender and
the Lender Group, from and of any and all other claims, damages, losses,
actions, counterclaims, suits, judgments, obligations, liabilities, defenses,
affirmative defenses, setoffs, and demands of any kind or nature whatsoever, in
law or in equity, whether presently known or unknown, which any or all of the
Borrowers may have had, now have, or which they can, shall or may have for,
upon, or by reason of any matter, course or thing whatsoever relating to,
arising out of, based upon, or in any manner connected with, any transaction,
event, circumstance, action, failure to act, or occurrence of any sort or type,
whether known or unknown, which occurred, existed, was taken, permitted, begun,
or otherwise related or connected to or with, whether past, existing or
hereafter occurring, any or all of the Loans, this Agreement, or the Security
Agreement, and/or any direct or indirect action or omission of the Lender and/or
any of the Lender Group, including, without limitation, the failure or the
refusal of the Lender to make any one or more Loans requested by the Borrowers.
The Borrowers further agree that from and after the date hereof, they will not
assert to any person or entity that any deterioration of the business operations
or financial condition of any of the Borrowers was caused by any breach or
wrongful act of the Lender or any of the Lender Group.
Exhibit A-13
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
LOCKHEED XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx (SEAL)
-------------------------
Xxxxxx X. Xxxxxxxxxx
Vice President and Treasurer
CALCOMP TECHNOLOGY, INC.
By: /s/ Xxxx X. Xxxxxxxxx (SEAL)
----------------------
Xxxx X. Xxxxxxxxx
Senior Vice President and
Chief Financial Officer
CALCOMP INC.
By: /s/ Xxxx X. Xxxxxxxxx (SEAL)
----------------------
Xxxx X. Xxxxxxxxx
Senior Vice President and
Chief Financial Officer
TOPAZ TECHNOLOGIES, INC.
By: /s/Xxxx X. Xxxxxxxxx (SEAL)
--------------------
Xxxx X. Xxxxxxxxx
Chief Financial Officer
Exhibit A-14
