EXHIBIT 10.7
LOAN AGEEEMENT, AS AMENDED
UNSECURED CREDIT AGREEMENT
AGREEMENT by and between SUMMIT BANK ("BANK") and Dialogic Corporation, a New
Jersey Corporation ("BORROWER"), dated as set forth.
1. DEFINITIONS
The terms set forth below shall be defined as follows:
1.1 "Date of Agreement" is: as of November 1, 1997.
1.2 "Borrower" means: Dialogic Corporation, a New Jersey Corporation.
1.3 "Borrower's Address" is: 0000 Xxxxx 00, Xxxxxxxxxx, Xxx Xxxxxx 00000.
1.4 "Bank's Address" is: 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
1.5 "Event of Default" means each and every event specified in Section 6 of
this Agreement.
1.6 "Loan Document(s)" means any Credit Agreement, Note, Security Agreement,
Mortgage or any other document heretofore, now or hereafter executed
by Borrower to Bank, together with all modifications, extensions
and/or renewals thereof.
1.7 "Obligations" means all indebtedness, obligations and liabilities of
Borrower to Bank of every kind and description, direct or indirect,
secured or unsecured, joint or several, absolute or contingent, due
or to become due, including any overdrafts, whether for payment or
performance, now existing or hereafter arising, whether presently
contemplated or not, regardless of how the same arise or by what
instrument, agreement or book account they may be evidenced, or
whether evidenced by any instrument, agreement or book account,
including, but not limited to all loans (including any loan by
modification, renewal or extension), all indebtedness, all undertakings
to take or refrain from taking any action, all indebtedness,
liabilities or obligations owing from Borrower to others which Bank
may have obtained by purchase, negotiation, discount, assignment or
otherwise; and all interest, taxes, fees, charges, expenses and
attorney's fees (whether or not such attorney is a regularly salaried
employee of Bank, any parent corporation or any subsidiary or
affiliate thereof, whether now existing or hereafter created),
chargeable to Borrower or incurred by Bank under this Agreement, or
any other document or instrument delivered in connection herewith or
therewith.
1.8 "Termination Date" is November 1, 1998, unless such date is extended
on one or more occasions, then the last date of the last such
extension.
To the extent not defined in Section 1 (or any other Loan Document), unless the
context otherwise requires, all other terms contained in this Agreement shall
have the meanings attributed to them by the Uniform Commercial Code in force in
the State of New Jersey, as of the Date of Agreement, to the extent that same
are used or defined therein.
To the extent not defined in Section 1 (or any other Loan Document), unless the
context otherwise requires, all accounting terms in this Agreement shall be
construed in accordance with Generally Accepted Accounting Principles as of the
Date of Agreement, to the extent that same are used or defined therein.
2. COMMITMENTS
Subject to the terms and conditions of the Loan Documents, Bank agrees to
lend to Borrower and Borrower agrees to borrow from Bank an aggregate
principal amount at any one time outstanding not to exceed $30,000,000.00
from the Date of Agreement to the Termination Date. Within such limits the
Borrower may borrow, repay and re-borrow at any time or from time to time.
The face amount of all commercial or standby letters of credit issued by
Bank and drafts accepted by Bank for the account of Borrower is included in
the aggregate principal amount. There is a $3,000,000 sublimit for standby
letters of credit. Borrowings hereunder are to be used soley for working
cpital.
3. REPRESENTATIONS AND WARRANTIES
3.1 Borrower represents and warrants to Bank, and such representations and
warranties shall be continuing so long as any Obligations shall remain
outstanding, as follows:
3.1.1 Borrower has the power and authority to enter into and perform
the Loan Documents and to incur the Obligations. If a
corporation, Borrower has been duly incorporated and organized
and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and is duly
qualified as a foreign corporation in those jurisdictions where
the conduct of its business or the ownership of its properties
requires qualification. If a limited liability company, Borrower
has been duly formed and organized as a limited liability
company in good standing under the laws of its jurisdiction of
formation and is duly qualified as a foreign limited liability
company in those jurisdictions where the conduct of its business
or the ownership of its properties requires qualification. If a
partnership or a limited partnership, Borrower has been validly
formed, is validly existing as a partnership in good standing
under the laws of its jurisdiction, is legally authorized to
transact business in New Jersey and in those jurisdictions where
the conduct of its business or ownership of its properties
requires qualification, is not incorporated, and has never
changed its name or used any other name and has filed all
tradename certificates as required or appropriate. If a
proprietorship, Borrower is validly existing, is legally
authorized to transact business in New Jersey and in those
jurisdictions where the conduct of its business or ownership of
its properties requires qualification, is not incorporated, has
never changed its name or used any other name and has filed all
tradename certificates as required or appropriate and Borrower
is the sole owner of the business.
3.1.2 Borrower has not changed its name, form, identity or structure.
3.1.3 This Agreement and any other Loan Documents constitute valid and
legally binding Obligations of Borrower and are enforceable
against Borrower in accordance with their respective terms.
3.1.4 Borrower has filed all Federal, state and local tax returns and
other reports it is required to file and has paid or made
adequate provision for payment of all such taxes, assessments
and other governmental charges.
3.1.5 All property owned or utilized by Borrower is in compliance and
will continue to be in compliance with all requirements of all
applicable environmental laws, including, without limitation,
the Industrial Site Recovery Act f/k/a the Environmental Cleanup
Responsibility Act (N.J.S.A.13:1K-6 et seq., as amended) and the
Spill Compensation and Control Act (N.J.S.A.58:10-23.11b et seq.
as amended) and the Hazardous and Solid Waste Amendments of 1984
Pub. L98-616 (42 U.S.C. 699 et seq., as amended); and a certain
statute adopted by New Jersey for registration of underground
storage tanks (N.J.S.A. 58:10A-21 et seq.); the Resource
Conservation and Recovery Act (42 U.S.C. 6901 et seq., as
amended) and the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. 9601 et seq., as
amended); (all such Federal, state, county, municipal or other
laws, ordinances or regulations are hereinafter collectively
referred to as the "Environmental Laws").
3.1.6 Borrower has good and marketable title to all of its properties
and assets. The execution and performance of this Agreement and
any Loan Document will not violate or result in a default or in
the creation or imposition of any lien or encumbrance upon any
of the assets of Borrower (immediately, with the passage of time
or with the giving of notice and the passage of time) under any
other contract, agreement or instrument to which Borrower is a
party or by which Borrower is bound, nor will it result in the
acceleration of any obligation under any mortgage, lien, lease,
franchise, license, permit, agreement, instrument, order,
arbitration award, judgment, or decree, or in the termination of
any license, franchise, lease, or permit to which Borrower is a
party or by which it is bound; and it will not violate or
conflict with any other restriction of any kind or character to
which Borrower is subject.
3.1.7 Borrower incurs the Obligations herein from Bank for business
purposes only and shall not incur the Obligations for personal,
household or family purposes.
3.1.8 There is no claim, loss, contingency, litigation, or proceeding
whether or not pending, threatened or imminent against or
otherwise affecting Borrower that involves the possibility of
any judgment or liability not fully covered by insurance, and
there is no claim, loss, contingency, litigation, or proceeding
whether or not pending, threatened or imminent against or
otherwise affecting Borrower that may result in material adverse
change in the business, properties, operation or condition
(financial or otherwise) of Borrower.
3.1.9 Borrower has complied with all applicable statutes, regulations,
ordinances, court decrees or other directives of the United
States of America, and all states, counties, municipalities and
agencies with respect to the manufacture and sale of its goods,
the rendition of its services and/or the conduct of its
business.
3.1.10 Borrower has heretofore delivered to Bank current financial
statements, acceptable to Bank, which were prepared by
independent certified public accountants. The financial
statements were true, correct and complete and were prepared in
accordance with Generally Accepted Accounting Principles,
consistently applied and present fairly the financial position
and results of operations of Borrower as of the date of and for
the period involved. The financial statements make full and
adequate provision for all obligations, liabilities, and
commitments (fixed and contingent) of Borrower as of the date of
the financial statements. Since the date of the financial
statements, there has been no material adverse change in the
business, properties, prospects, operation or condition
(financial or otherwise) of Borrower.
3.1.11 With respect to each Employee Benefit Plan maintained by
Borrower, no Prohibited Transaction or Reportable Event (as
defined in Title IV of the Employee Retirement Income Security
Act of 1974, as amended) has occurred and is continuing;
Borrower is not subject to thirty (30) days notice to the
Pension Benefit Guaranty Corporation, and Borrower will comply
with the provisions of the Employee Retirement Income Security
Act of 1974, as amended and the Internal Revenue Code of 1986,
as amended.
3.1.12 Borrower is in compliance with all requirements of the Americans
With Disabilities Act of 1990, 42 U.S.C. 12101 et seq.,
including but not limited to those regulations promulgated by
the Architectural and Transportation Barrier Compliance Board at
36 CFR 1191 et seq., and by the Department of Justice at 28 CFR
36 et seq.
3.1.13 Borrower is not a "foreign person" within the meaning of Section
1445(f)(3) of the Internal Revenue Code of 1986 as amended and
the related Treasury Department regulations, including temporary
regulations.
4. GENERAL COVENANTS
4.1 Borrower covenants and agrees that so long as any Obligations shall
remain outstanding:
4.1.1 Borrower shall not permit any further mortgage, pledge, grant,
Security Interest in or lien or encumbrance upon any of the
property, assets or rights of Borrower.
4.1.2 Borrower shall not merge or consolidate with or sell, assign,
lease or otherwise transfer or dispose of (whether in one
transaction or in a series of transactions) all or substantially
all of its assets (whether now owned or hereafter acquired or
arising) to, any person or entity or acquire all or
substantially all the assets or the business of any person or
entity;
4.1.3 Borrower shall continue to engage in an efficient and economical
manner in a business of the same general type as conducted by it
on the Date of Agreement.
4.1.4 Borrower shall furnish to Bank:
4.1.4.1 Within ninety (90) days after the last day of each
fiscal year of Borrower, a financial statement including
a balance sheet and statements of income, retained
earnings and changes in financial position, each
prepared in accordance with Generally Accepted
Accounting Principles consistently applied, with a
report signed by an independent certified public
accountant satisfactory to Bank and a 10K report;
4.1.4.2 Within forty-five (45) days after the close of each
quarter of each fiscal year of Borrower, financial
statements similar to those required under paragraph
4.1.4.1, prepared by Borrower and certified by the chief
financial officer of Borrower and a 10Q report;
4.1.4.3 Together with the financial statements set forth in
Section 4.1.4.1, a letter executed by the aforesaid
accountant acknowledging Bank's reliance on said
financial statements and Borrower's knowledge of such
reliance; 4.1.4.4 Promptly and in form satisfactory to
Bank, such other information as Bank may reasonably
request from time to time.
4.1.5 Borrower shall comply with all present and future laws, rules
and regulations applicable to Borrower in the operation of its
business and the ownership of its assets, and all material
agreements to which it is subject.
4.2 Borrower further covenants and agrees to:
4.2.1 Promptly notify Bank of any condition or event which
constitutes, or would constitute with the passage of time or
giving of notice or both, an Event of Default under this
Agreement or any Loan Document and promptly inform Bank of any
events or change in the financial condition of Borrower
occurring since the date of the last financial statement of
Borrower delivered to Bank, which individually or cumulatively
when viewed in light of prior financial statements, could result
in a material adverse change in the business, properties,
prospects, operation or condition (financial or otherwise) of
Borrower;
4.2.2 If a corporation, maintain in good standing its corporate
existence in its jurisdiction of incorporation and its status as
a foreign corporation qualified to do business in those
jurisdictions where Borrower is required to be qualified; if a
partnership or a limited partnership, maintain in good standing
its partnership existence in its jurisdiction of formation and
its status as a foreign limited partnership qualified to do
business in those jurisdictions where Borrower is required to be
qualified; if a limited liability company, maintain in good
standing its limited liability company existence in its
jurisdiction of formation and its status as a foreign limited
liability company qualified to do business in those
jurisdictions where Borrower is required to be qualified.
4.2.3 Pay or deposit promptly when due all sales, use, excise,
personal property, income, withholding, corporate, franchise and
other taxes, assessments and governmental charges and, when
requested by Bank, submit to Bank proof satisfactory to Bank
that such payments and/or deposits have been made;
4.2.4 Notify Bank in writing within ten (10) days, of any claim,
litigation, action or proceeding filed or commenced by or
against Borrower that could result in a material adverse change
in the business, properties, prospects, operation or condition
(financial or otherwise) of Borrower; or a material adverse
occurrence, in each case, together with a complete description
of the action taken or proposed to be taken with respect
thereto;
4.2.5 Notify Bank in writing immediately of any amendments or other
changes to any by-laws, articles of incorporation, certificates
of formation, operating agreements, partnership agreements,
limited partnership agreements or any other document (or other
arrangement, whether or not in writing) governing the
organization or operation of Borrower or the respective
interests of its shareholders, members or partners, provided,
however, that if Borrower is a limited liability company, no
amendments to the Operating Agreement will be made without the
prior written consent of Bank.
5. FINANCIAL COVENANTS
5.1 Borrower covenants and agrees that so long as any Obligations shall
remain outstanding Borrower shall:
5.1.1 Not incur any indebtedness from any source other than Bank,
except normal trade debts and accruals in the ordinary course of
business.
6. EVENTS OF DEFAULT AND ACCELERATION
6.1 The occurrence of any one or more of the following events shall
constitute an Event of Default hereunder:
6.1.1 Failure to pay any principal, interest or any of the Obligations
as and when due;
6.1.2 Failure to perform or observe any covenant, term or agreement
herein set forth or set forth in any Loan Document; (other than
Section 5 of this Agreement) and the continuance of such failure
for a period of five (5) days after notice thereof to Borrower
from Bank.
6.1.3 Any representation or warranty made or deemed made by the
Borrower herein or in any Loan Document or which is contained in
any certificate, document, opinion or other statement furnished
now or at any time shall prove to be incorrect in any material
respect on or as of the date made or deemed to be made;
6.1.4 Failure to pay or perform any Obligation of any Borrower to
Bank, whether by maturity or acceleration, set forth herein or
in any Loan Document;
6.1.5 A proceeding being filed or commenced against Borrower for
dissolution or liquidation; or any Borrower voluntarily or
involuntarily terminating or dissolving or being terminated or
dissolved; insolvency of Borrower, or Borrower fails to pay its
debts as they become due in the ordinary course of business; or
a creditor's committee is appointed for the business of
Borrower, or Borrower makes an assignment for the benefit of
creditors, or a petition in bankruptcy or for reorganization or
to effect a plan of arrangement with creditors is filed by
Borrower; or Borrower applies for or permits the appointment of
a receiver or trustee for any or all of its property, assets or
rights, or any such receiver or trustee shall have been
appointed for any or all of its property, assets or rights; or
any of the above actions or proceedings whatsoever are commenced
by or against any other party liable for the Obligations;
6.1.6 Any final judgment, order or decree rendered against Borrower
exceeding $25,000 and remaining undischarged, unstayed or
outstanding against Borrower for a period of thirty (30) days;
6.1.7 Any investigation undertaken by any governmental entity which
may have a material adverse effect on Borrower or if any
indictment, charge or proceeding is filed or commenced, whether
criminal or civil, pursuant to Federal or state law against
Borrower for which forfeiture of any of the property or assets
of Borrower is a penalty;
6.1.8 Any Reportable Event as defined in the Employee Retirement
Income Security Act of 1974, as amended occurs or if any
Employee Benefit Plan is terminated or Bank reasonably believes
that such plan may be terminated pursuant to and as defined in
the Employee Retirement Income Security Act of 1974, as amended;
6.1.9 Bank reasonably deems itself insecure; the occurrence of a
material adverse change in the business, properties, prospects,
operation or condition (financial or otherwise) of Borrower; or
a material adverse occurrence; or
6.1.10 Any member of Borrower that is a limited liability company
resigns or any such member's interest terminates.
6.2 If any Event of Default shall occur, then or at any time thereafter,
while such Event of Default shall continue, Bank may declare all
Obligations to be due and payable, without notice, protest,
presentment, dishonor or demand, all of which are hereby expressly
waived by Borrower.
7. RIGHTS AND REMEDIES
Bank shall have the following rights and remedies at any time:
7.1 Bank, and any officer or agent of Bank is hereby constituted and
appointed as true and lawful attorney-in-fact of Borrower with power:
7.1.1 To endorse the name of Borrower upon any instrument of payment
(including payments made under any policy of insurance) that may
come into possession of Bank in full or part payment of any
Obligation;
7.2 Bank shall have the right to setoff, without notice to Borrower, any
and all deposits or other sums at any time or times credited by or due
from Bank to Borrower, whether in a special account or other account
or represented by a certificate of deposit (whether or not matured)
which deposits and other sums shall at all times constitute additional
security for the Obligations and may be set-off against all or any
part of the Obligations at any time. Borrower does hereby authorize
Bank and any other member of Summit Bancorp on behalf of Bank to
likewise setoff without notice, any or all deposits or other sums on
behalf of Bank, hereby granting to all such members of Summit Bancorp
as necessary to effectuate the foregoing, a lien on and a security
interest in and to such deposits or other sums. Bank agrees promptly
to notify Borrower after any such setoff and application, provided
that the failure to give such notice shall not affect the validity of
such setoff and application.
7.3 Bank shall have any and all remedies not enumerated above, available
at law or in equity, all of which rights and remedies shall be
cumulative and non-exclusive, to the extent permitted by law.
7.4 If at any time Bank determines that any applicable law, regulation,
condition or directive, or the interpretation of any thereof, relating
to capital adequacy (including but not limited to, any request,
guideline or policy, whether or not having the force of law and
including but not limited to, any regulation promulgated by the Board
of Governors of the Federal Reserve System as now or from time to time
hereafter in effect) by any authority charged with the administration
or interpretation thereof, or any change in any of the foregoing, has
or would have the effect of reducing the rate of return on Bank's
capital as a consequence of Bank's obligations under this Agreement to
a level below that which Bank would have achieved but for such law,
regulation, condition, directive, interpretation or change (taking
into consideration Bank's policies with respect to capital adequacy)
by an amount deemed by Bank to be material, then from time to time
Borrower shall pay to Bank on demand such additional amount(s) as will
compensate Bank for such reduction.
7.4.1 Bank will promptly notify Borrower of any event of which it has
knowledge, occurring after the date hereof, which will entitle
Bank to compensation pursuant to Section 7.4. A certificate or
notice from Bank claiming compensation under Section 7.4 and
setting forth the additional amount(s) to be paid to it
hereunder shall be conclusive in the absence of manifest error.
In determining such amount, Bank may use any reasonable
averaging and attribution methods.
7.4.2 Borrower's failure to pay such additional amount(s), shall
result in Borrower becoming liable for the difference between
the actual return achieved and what Bank had expected to achieve
and shall become a part of Borrower's Obligations herein.
7.5 In the event that Borrower's credit relationship with Bank is rated
substandard or lower on Bank's rating system(s), all of which ratings
shall be in Bank's absolute and sole discretion, Borrower shall pay to
Bank, upon receipt of notice from Bank to such effect, an additional
1% per annum in excess of each payment to be made under this Agreement
and any other Loan Document until such rating is upgraded to above
substandard. Borrower's failure to pay such additional amount(s) shall
become a part of Borrower's Obligations payable on demand and secured
by the Collateral.
8. GENERAL PROVISIONS
8.1 The failure of Bank at any time or times hereafter to require strict
performance by Borrower of any of the provisions, warranties, terms
and conditions contained herein or in any Loan Document shall not
waive, affect or diminish any right of Bank at any time or times
thereafter to demand strict performance thereof. No rights of Bank
hereunder or in any Loan Document shall be deemed to have been waived
by any act or knowledge of Bank, its agents, officers or employees,
unless such waiver is contained in an instrument in writing signed by
an officer of Bank and directed to Borrower specifying such waiver. No
waiver by Bank of any of its rights shall operate as a waiver of any
other of its rights or any of its rights on a future occasion.
8.2 Any demand or notice required or permitted to be given hereunder or in
any Loan Document shall be deemed effective when deposited in the
United States mail, and sent by certified mail, return receipt
requested, postage prepaid, addressed to Bank, ATTN: Branch Manager,
at Bank's Address or to Borrower at Borrower's Address, as applicable,
or to such other address as may be provided by the party to be
notified, on ten (10) days prior written notice to the other party.
8.3 Any notice required to be given by Bank made in accordance with the
terms herein or any Loan Document at least ten (10) days prior to such
proposed action, shall constitute fair and reasonable notice to
Borrower of any such action.
8.4 This Agreement and the Loan Documents contain the entire understanding
between the parties hereto with respect to the transactions
contemplated herein and such understanding shall not be modified
except in writing signed by or on behalf of the parties hereto.
8.5 Borrower shall not hold Bank liable due to any action or failure to
act by Bank herein or in any Loan Document including any action or
failure to act as a result of Bank's gross negligence or willful
misconduct. This provision shall survive the termination or expiration
of this Agreement or any Loan Document and the repayment in full of
Borrower's Obligations.
8.6 Wherever possible, each provision herein or in any Loan Document shall
be interpreted in such manner as to be effective and valid under
applicable law. Should any portion of this Agreement or any Loan
Document be declared invalid for any reason in any jurisdiction, such
declaration shall have no effect upon the remaining portions of this
Agreement or any Loan Document. Furthermore, the entirety of this
Agreement or any Loan Document shall continue in full force and effect
in all other jurisdictions and said remaining portions herein or in
any Loan Document shall continue in full force and effect in the
subject jurisdiction as if this Agreement or any Loan Document had
been executed with the invalid portions thereof deleted.
8.7 The provisions of this Agreement or any Loan Document shall be binding
upon and shall inure to the benefit of the heirs, personal
representatives, administrators, successors and assigns of Bank and
Borrower; provided, however, Borrower may not assign any of its rights
or delegate any of its Obligations hereunder or in any Loan Document
without the prior written consent of Bank.
8.8 This Agreement or any Loan Document is and shall be deemed to be a
contract entered into and made pursuant to the laws of the State of
New Jersey and shall in all respects be governed, construed, applied
and enforced in accordance with the laws of said State.
8.9 If, prior hereto and/or at any time or times hereafter, Bank shall
employ counsel in connection with the execution and consummation of
the transactions contemplated herein or in any Loan Document or to
commence, defend or intervene, file a petition, complaint, answer,
motion or other pleadings, or to take any other action in or with
respect to any suit or proceeding (bankruptcy or otherwise) relating
to this Agreement or any Loan Document, or to enforce any rights of
Bank hereunder or in any Loan Document, whether before or after the
occurrence of any Event of Default, or to collect any of the
Obligations then, in any of such events, Borrower agrees to pay
attorney fees, (whether or not such attorney is a regularly salaried
employee of Bank, any parent corporation or any subsidiary or
affiliate thereof, whether now existing or hereafter created), not to
exceed 20% of the Obligations, which shall be deemed reasonable and
any expenses, costs and charges relating thereto, and such shall be
part of the Obligations payable on demand.
8.10 With respect to all or any part of the Obligations, in the event that
Bank seeks to enter into a participation, intercreditor and/or
assignment agreement, then Borrower hereby authorizes Bank to release
all or part of any financial or credit information provided by
Borrower to Bank to any other bank or financial institution without
notice.
8.11 Each reference herein or in any Loan Document to Bank shall be deemed
to include its successors and assigns, and each reference to Borrower
and any pronouns referring thereto as used herein shall be construed
in the masculine, feminine, neuter, singular or plural as the context
may require, and shall be deemed to include the heirs, personal
representatives, administrators, successors and assigns of Borrower,
all of whom shall be bound by the provisions hereof or in any Loan
Document. The term "Borrower" as used herein shall, if this Agreement
or any Loan Document is signed by more than one Borrower, mean, unless
this Agreement or any Loan Document otherwise provides or unless the
context otherwise requires, the "Borrower" and each of them and each
and every representation, promise, agreement and undertaking shall be
joint and several, except that the right of set-off and lien shall be
by each Borrower in and to its several respective properties.
8.12 The section headings herein are included for convenience only and
shall not be deemed to be a part of this Agreement or any Loan
Document.
9. ASSIGNMENT BY BANK
Bank may from time to time without notice to Borrower, sell, assign,
transfer or otherwise dispose of all or any part of the Obligations. In
such event, each and every immediate and successive purchaser, assignee,
transferee or holder of all or any part of the Obligations shall have the
right to enforce this Agreement, by legal action or otherwise, for its own
benefit as fully as if such purchaser, assignee, transferee or holder were
herein by name specifically given such rights. Bank shall have an
unimpaired right to enforce this Agreement for its benefit to that portion
of the Obligations as Bank has not sold, assigned, transferred or otherwise
disposed of.
10. WAIVER OF JURY TRIAL BORROWER WAIVES TRIAL BY JURY AND CONSENTS TO AND
CONFERS PERSONAL JURISDICTION ON COURTS OF THE STATE OF NEW JERSEY OR OF
THE FEDERAL GOVERNMENT, AND EXPRESSLY WAIVES ANY OBJECTIONS AS TO VENUE IN
ANY OF SUCH COURTS, AND AGREES THAT SERVICE OF PROCESS MAY BE MADE ON
BORROWER BY MAILING A COPY OF THE SUMMONS TO BORROWER AT BORROWER'S
ADDRESS. BANK LIKEWISE WAIVES TRIAL BY JURY.
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ATTEST: BORROWER Dialogic Corporation, a New
Jersey Corporation
/s/ /s/
___________________________ ___________________________
Xxxxxxxx Xxxxx, Secretary Xxxxxx X. Xxxxx, CFO
ATTEST: SUMMIT BANK
/s/ /s/
_________________________________ ___________________________________
Assistant Treasurer Xxxxx Xxxxxx-Xxxx, Vice President
SUMMIT BANK
MASTER ADVANCE NOTE
$30,000,000.00
As of November 1, 1997
================================================================================
LOAN
FOR VALUE RECEIVED, the Undersigned, ("BORROWER"), unconditionally (and jointly
and severally, if more than one) promise(s) to pay to SUMMIT BANK ("BANK"), or
order, at its offices at 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, or at
such other place as may be designated in writing by Bank, the principal
aggregate sum of Thirty Million Dollars and No Cents ($30,000,000.00) or such
lesser amount of advances as may have been borrowed, repaid and reborrowed (or
for such other financial accommodations as may have been made) together with
interest from the date hereof on the unpaid principal balance hereunder,
computed daily, at the RATES per annum indicated below, payable in accordance
with the particular PAYMENT SCHEDULE indicated below. Any advance(s) shall be
conclusively presumed to have been made to and for the benefit and at the
request of Borrower when made in accordance with the oral or written
instructions of Borrower, or of any one of them if more than one, or of any one
signing below for or on behalf of Borrower. This Note is subject to an annual
30-day clean-up requirement where outstandings under this Note shall be -$0- for
such annual 30-day period.
================================================================================
RATE
Provided, that no Event of Default (as hereinafter defined) shall have occurred
and be then continuing, advances under this Note shall bear interest on the
unpaid principal amount thereof at the following RATE(S) per annum: (i) the
Prevailing Base Rate (as defined in Exhibit A attached hereto and made a part
hereof) minus .75% or (ii) the LIBOR Rate (as defined in Exhibit A attached
hereto and made a part hereof) or (iii) any combination thereof. Interest will
be calculated on the basis of the actual number of days elapsed over a year of
360 days, unless otherwise prohibited by law. To the extent permitted by law,
whenever there is any Event of Default under this Note, or non-payment upon
demand, the RATE of interest on the unpaid principal balance shall, at the
option of Bank, be 2% over the interest RATE provided herein. Borrower
acknowledges that (i) such default rate is a material inducement to Bank to make
the loan, (ii) Bank would not have made the loan in the absence of the agreement
of the Obligors (as defined in Section 1 of the Additional Terms and Conditions
hereto) to pay such default rate and (iii) such default rate is not a penalty
and represents a reasonable estimate of the cost to Bank in allocating its
resources (both personnel and financial) to the on-going review, monitoring,
administration and collection of the loan. Notwithstanding any other limitations
contained in this Note, Bank does not intend to charge and Borrower shall not be
required to pay any interest or other fees or charges in excess of the maximum
permitted by applicable law. Any payments in excess of such maximum shall be
refunded to Borrower or credited against principal.
================================================================================
PAYMENT SCHEDULE
In the event that any payment shall not be received by Bank within TEN (10) days
of the due date, Borrower shall, to the extent permitted by law, pay Bank a late
charge of 5% of the overdue payment (but in no event to be less than $25.00 nor
more than $2,500.00). Any such late charge assessed is immediately due and
payable. All payments received hereunder may be applied first to the payment of
any expenses or charges payable hereunder and accrued interest, and the balance
only applied to principal. Principal shall be paid in a single payment on
November 1, 1998. Interest shall be paid monthly commencing on February 1, 1998
and continuing on the same day of each successive month thereafter with a final
payment of all unpaid interest at the time of the final payment of the unpaid
principal.
================================================================================
SECURITY
As security for this Note, or any modifications, extensions and/or renewals,
Borrower grants to Bank a lien on, a continuing security interest in, and a
right to set-off at any time, without notice, all property and deposit accounts
at, under the control of or in transit to Bank which belong to Borrower, any
Guarantor or Endorser hereof.
================================================================================
WAIVER OF JURY TRIAL
BORROWER WAIVES TRIAL BY JURY AND CONSENTS TO AND CONFERS PERSONAL JURISDICTION
ON COURTS OF THE STATE OF NEW JERSEY OR OF THE FEDERAL GOVERNMENT, AND EXPRESSLY
WAIVES ANY OBJECTIONS AS TO VENUE IN ANY OF SUCH COURTS, AND AGREES THAT SERVICE
OF PROCESS MAY BE MADE ON BORROWER BY MAILING A COPY OF THE SUMMONS TO BORROWER
AT BORROWER'S ADDRESS. BANK LIKEWISE WAIVES TRIAL BY JURY.
================================================================================
THE ADDITIONAL TERMS AND CONDITIONS SET FORTH IN THIS NOTE ARE A PART OF THIS
NOTE.
================================================================================
ATTEST: BORROWER Dialogic Corporation, a New
Jersey Corporation
/s/ /s/
___________________________________ ___________________________________
Xxxxxxxx Xxxxx, Secretary Xxxxxx X. Xxxxx, CFO
with its place of business or chief executive office (if it has more than one
place of business) at 0000 Xxxxx 00, Xxxxxxxxxx, Xxx Xxxxxx 00000.
================================================================================
ADDITIONAL TERMS AND CONDITIONS
1. Borrower and any Co-Borrowers, or Guarantor, or any Endorser hereof
(collectively "Obligors") and each of them: (i) waive(s) presentment,
dishonor, demand, notice of demand, protest, notice of protest and notice
of nonpayment and any other notice required to be given under law to any
Obligors in connection with the delivery, acceptance, performance, default
or enforcement of this Note, or any endorsement or guaranty of this Note or
any document or instrument evidencing any security for payment of this
Note; (ii) consent(s) to any and all delays, extensions, renewals or other
modifications of this Note or waivers of any term hereof or release or
discharge by Bank of any Obligors or release, substitution or exchange of
any security for the payment hereof or the failure to act on the part of
Bank or any indulgence shown by Bank from time to time and in one or more
instances, (without notice to or further assent from any Obligors) and
agree(s) that no such action, failure to act or failure to exercise any
right or remedy on the part of Bank shall in any way affect or impair the
obligations of any Obligors or be construed as a waiver by Bank of, or
otherwise affect, any of Bank's rights under this Note, under any
endorsement or guaranty of this Note or under any document or instrument
evidencing any security for payment of this Note; and (iii) (jointly and
severally, if more than one) agree(s) to pay, on demand, all costs and
expenses of collection of this Note or of any endorsement or any guaranty
hereof and/or the enforcement of Bank's rights with respect to, or the
administration, supervision, preservation, protection of, or realization
upon, any property securing payment hereof, (including any costs and
expenses incurred in any bankruptcy or other insolvency proceedings of any
Obligors), including reasonable attorney's fees (whether or not such
attorney is a regularly salaried employee of Bank, any parent corporation
or any subsidiary or affiliate thereof, whether now existing or hereafter
created), not to exceed 20% of all liabilities hereunder, which shall be
deemed reasonable.
2. This Note is delivered in and shall be construed under the laws of the
State of New Jersey and in any litigation in connection with, or
enforcement of, this Note or of any endorsement or guaranty of this Note or
any security given for payment hereof. The term "Bank" as used in this Note
shall include Bank's successors, endorsers and assigns.
3. The occurrence of any one or more of the following events shall constitute
an Event of Default hereunder: (i) failure to pay any principal, interest
or any of the Obligations as and when due; (ii) failure to pay or perform
any Obligation of any of the Obligors to Bank, whether by maturity or
acceleration, set forth in this Note or in any Loan Document; (Iii) a
proceeding being filed or commenced against any Obligor for dissolution or
liquidation; or any of the Obligors voluntarily or involuntarily
terminating or dissolving or being terminated or dissolved; (iv) insolvency
of any Obligor, or any Obligor fails to pay its debts as they become due in
the ordinary course of business; or a creditor's committee is appointed for
the business of any Obligor, or any Obligor makes an assignment for the
benefit of creditors, or a petition in bankruptcy or for reorganization or
to effect a plan of arrangement with creditors is filed by any Obligor; or
any Obligor applies for or permits the appointment of a receiver or trustee
for any or all of its property, assets or rights or any such receiver or
trustee shall have been appointed for any or all of its property, assets or
rights or any of the above actions or proceedings whatsoever are commenced
by or against any Obligor; (v) any attachments, liens or additional
security interests being placed upon any of the Collateral; (vi)
acquisition at any time or from time to time of title to the whole or any
part of the Collateral by any person, partnership, limited liability
company or corporation other than any of the Obligors; (vii) any final
judgment, order or decree rendered against any Obligor exceeding $25,000.00
and remaining undischarged, unstayed, or outstanding against any Obligor
for a period of thirty (30) days; (viii) any investigation undertaken by
any governmental entity which may have a material adverse affect on any
Obligor or if any indictment, charge or proceeding is filed or commenced,
whether criminal or civil pursuant to Federal or state law against any
Obligor for which forfeiture of any of the property or assets of such
Obligor is a penalty; (ix) any Reportable Event occurs or if any Employee
Benefit Plan is terminated or Bank reasonably believes such plan may be
terminated pursuant to and as defined in the Employee Retirement Income
Security Act of 1974, as amended; (x) Bank reasonably deems itself
insecure; the occurrence of a material adverse change in the business,
properties, prospects, operation or condition (financial or otherwise) of
any Obligor; or a material adverse occurrence; (xi) any member of an
Obligor that is a limited liability company resigns or any such member's
interest terminates.
4. If any Event of Default shall occur, then or any time thereafter, while
such Event of Default shall continue, Bank may declare all Obligations to
be due and payable, without notice, protest, presentment, dishonor or
demand, all of which are hereby expressly waived by Obligors. Failure of
Bank to declare all Obligations due and payable upon the occurrence of an
Event of Default shall not be deemed a waiver, and no rights of Bank
hereunder shall be deemed to have been waived by an act or knowledge of
Bank, its agents, officers or employees, unless such waiver is contained in
an instrument in writing signed by an officer of Bank and directed to
Borrower specifying such waiver. No waiver by Bank of any of its rights
shall operate as a waiver of any other of its rights or any of its rights
on a future occasion.
5. In the event any one or more of the provisions of this Note shall for any
reason be held to be invalid, illegal or unenforceable, in whole or in part
or in any respect, or in the event that any one or more of the provisions
of this Note operate or would prospectively operate to invalidate this
Note, then and in either of those events, such provision or provisions only
shall be deemed null and void and shall not affect any other provision of
this Note and the remaining provisions of this Note shall remain operative
and in full force and effect and shall in no way be affected, prejudiced or
discharged thereby.
