LOAN AGREEMENT
This LOAN AGREEMENT entered into at New Britain, Connecticut, as of March
5, 2004, between Apex Machine Tool Company, Inc., a Connecticut corporation and
EDAC Technologies Corporation, a Wisconsin corporation, both having an office
located at 0000 Xxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (collectively,
the "Borrower") and Banknorth N.A., a national banking association with an
address of 000 Xxxx Xxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxxx 00000 (the "Bank").
FOR VALUE RECEIVED, and in consideration of the granting by the Bank of
financial accommodations to or for the benefit of the Borrower, including
without limitation respecting the Obligations (as hereinafter defined), the
Borrower represents and agrees with the Bank, as of the date hereof and as of
the date of each loan, credit and/or other financial accommodation, as follows:
1. THE LOAN
1.1 Loan. Subject to the terms and conditions of this Agreement, the Bank
hereby agrees to make a loan to the Borrower in the original principal amount of
$1,659,000.00 (the "Loan"). The Loan shall be evidenced by that certain Note, of
even date herewith (the "Note") by Borrower in favor of the Bank in the original
principal amount of $1,659,000.00. This Agreement, the Note, and any and all
other documents, amendments or renewals executed and delivered in connection
with any of the foregoing are collectively hereinafter referred to as the "Loan
Documents".
1.2 Definitions. The following definitions shall apply:
(a) "Code" shall mean the Connecticut Uniform Commercial Code, Title 42a
C.G.S.A. as amended from time to time.
(b) "Obligation(s)" shall mean, without limitation, all loans, advances,
indebtedness, notes, liabilities and amounts, liquidated or unliquidated, owing
by the Borrower to the Bank at any time, of each and every kind, nature and
description, whether arising under this Agreement or otherwise, and whether
secured or unsecured, direct or indirect (that is, whether the same are due
directly by the Borrower to the Bank; or are due indirectly by the Borrower to
the Bank as endorser, guarantor or other surety,
or as borrower of obligations due third persons which have been endorsed or
assigned to the Bank, or otherwise), absolute or contingent, due or to become
due, now existing or hereafter arising or contracted, including, without
limitation, payment when due of all amounts outstanding respecting any of the
Loan Documents. Said term shall also include all interest and other charges
chargeable to the Borrower or due from the Borrower to the Bank from time to
time and all costs and expenses referred to in this Agreement.
(c) "Person" or "party" shall mean individuals, partnerships,
corporations, limited liability companies and all other entities.
All words and terms used in this Agreement other than those specifically
defined herein shall have the meanings accorded to them in the Code.
2. REPRESENTATIONS AND WARRANTIES
2.1 Organization and Qualification. Borrower is a duly organized and existing
corporation under the laws of the State of its incorporation with the exact
legal name set forth in the first paragraph of this Agreement. Borrower is in
good standing under the laws of said State, has the power to own its property
and conduct its business as now conducted and as currently proposed to be
conducted, and is duly qualified to do business under the laws of each state
where the nature of the business done or property owned requires such
qualification.
2.2 Corporate Records. Borrower's corporate charter, articles of organization
or incorporation and all amendments thereto have been duly filed and are in
proper order. All outstanding capital stock issued by the Borrower was and is
properly issued and all books and records of the Borrower, including but not
limited to its minute books, bylaws and books of account, are accurate and up to
date and will be so maintained.
2.3 Title to Properties: Absence of Liens. Borrower has good and clear record
and marketable title to all of its properties and assets in which the Bank has a
lien or security interest.
2.4 Places of Business. Borrower's chief executive office is correctly stated
in the preamble to this Agreement, and Borrower shall, during the term of this
Agreement, keep the Bank currently and accurately informed in writing of each of
its other places of business, and shall not change the location of such chief
executive office or open or close; move or change any existing or new place of
business without giving the Bank at least thirty (30) days prior written notice
thereof.
2.5 Valid Obligations. The execution, delivery and performance of the Loan
Documents have been duly authorized by all necessary corporate action and each
represents a legal, valid and binding obligation of Borrower and is fully
enforceable according to its terms, except as limited by laws relating to the
enforcement of creditors' rights.
2
2.6 Conflicts. There is no provision in Borrower's organizational or charter
documents, if any, or in any indenture, contract or agreement to which Borrower
is a party which prohibits, limits or restricts the execution, delivery or
performance of the Loan Documents except for: (i) the necessary prior consent of
Farmington Savings Bank to this borrowing and the granting of a junior mortgage
to Lender on property to be mortgaged to Lender on which Farmington Savings Bank
holds a mortgage and the consent of Farmington Savings Bank to movement of
operating accounts to Lender and (ii) the consent to this borrowing from Lender
from General Electric Capital Corporation.
2.7 Governmental Approvals. The execution, delivery and performance of the
Loan Documents does not require any approval of or filing with any governmental
agency or authority.
2.8 Litigation. There are no actions, suits or proceedings pending or to the
knowledge of Borrower threatened against Borrower which might materially
adversely affect the ability of Borrower to conduct its business or to pay or
perform the Obligations.
2.9 Financial Statements. The Borrower has furnished to the Bank the following
Financial Statements (the "Financial Statements"): balance sheet as of September
27, 2003, and statement of profit and loss for the period ending September 27,
2003. The balance sheet fairly presents the condition of the Borrower at the
date thereof and the statement of profit and loss fairly presents the results of
the operations of the Borrower for the period indicated, all in conformity with
generally accepted accounting principles, consistently applied.
2.10 Changes. Since the date of the Financial Statements, there have been no
changes in the assets, liabilities, financial condition or business of the
Borrower, other than changes in the ordinary course of business, the effect of
which have, in the aggregate, been materially adverse.
2.11 Taxes. Borrower has filed all Federal, state and other tax returns
required to be filed (except for such returns for which current and valid
extensions have been filed), and all taxes, assessments and other governmental
charges due from the Borrower have been fully paid except for the remaining
balance of a sales tax assessment of $48,558.13 levied by the State of
Connecticut Department of Revenue Services ("DRS") which is being paid in six
monthly installments in accordance with an agreement with the DRS. The Borrower
has established on its books reserves adequate for the payment of all Federal,
state and other tax liabilities (if any).
2.12 Use of Proceeds. No portion of any loan is to be used for (i) the purpose
of purchasing or carrying any "margin security" or "margin stock" as such terms
are used in Regulations U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. 221 and 224 or (ii) primarily personal, family or household
purposes.
3
3. AFFIRMATIVE COVENANTS
3.1 Payments and Performance. Borrower will duly and punctually pay all
Obligations becoming due to the Bank and will duly and punctually perform all
Obligations on its part to be done or performed under this Agreement.
3.2 Books and Records: Inspection. Borrower will at all times keep proper
books of account in which full, true and correct entries will be made of its
transactions in accordance with generally accepted accounting principles,
consistently applied and which are, in the opinion of Xxxxxx, Xxxxxxx & Xxxxx
LLP or another firm of Certified Public Accountants that is duly qualified to
audit publicly traded companies, adequate to determine fairly the financial
condition and the results of operations of Borrower. Borrower will at all
reasonable times make its books and records available in its offices for
inspection and examination by the Bank and the Bank's representatives and will
permit inspection of all of its properties by the Bank and the Bank's
representatives. Borrower will from time to time furnish the Bank with such
information and statements as the Bank may request in its sole discretion with
respect to the Obligations.
3.3 Financial Statements. Borrower will furnish to Bank:
(a) as soon as available to Borrower, but in any event not later than
120 days after the close of each fiscal year, a full and complete signed copy of
financial statements, prepared by Xxxxxx, Xxxxxxx & Xxxxx LLP or another firm of
certified public accountants that is duly qualified to audit publicly traded
companies, which shall include a balance sheet of the Borrower, as at the end of
such year, statement of cash flows and statement of profit and loss of the
Borrower reflecting the results of its operations during such year, bearing the
opinion of such certified public accountants and prepared on a audited basis in
accordance with generally accepted accounting principles, consistently applied;
(b) as soon as available to Borrower, but in no event not later than 15
days of filing, a full and complete signed copy of Borrower's Federal Tax
Returns;
(c) from time to time, such financial data and information about
Borrower as Bank may reasonably request.
3.4 Conduct of Business. The Borrower will maintain its corporate existence in
good standing and comply with all laws and regulations of the United States and
of any state or states thereof and of any political subdivision thereof, and of
any governmental authority which may be applicable to it or to its business;
provided that this covenant shall not apply to any tax, assessment or charge
which is being contested in good faith and with respect to which reserves have
been established and are being maintained.
3.5 Operating and Deposit Accounts. The Borrower shall maintain with the Bank
its primary operating and deposit accounts. At the option of the Bank, all loan
payments and
4
fees will automatically be debited from the Borrower's primary operating account
and all advances will automatically be credited to the Borrower's primary
operating account.
3.6 Taxes. Borrower will promptly pay all real and personal property taxes,
assessments and charges and all franchise, income, unemployment, old age
benefits, withholding, sales and other taxes assessed against it or payable by
it before delinquent; provided that this covenant shall not apply to any tax
assessment or charge which is being contested in good faith and with respect to
which reserves have been established and are being maintained or the remaining
balance of a sales tax assessment of $48,558.13 levied by the State of
Connecticut Department of Revenue Services ("DRS") which is being paid in six
monthly installments in accordance with an agreement with the DRS.
3.7 Maintenance. Borrower will keep and maintain its properties, if any, in
good repair, working order and condition. The Borrower will immediately notify
the Bank of any loss or damage to or any occurrence which would adversely affect
the value of any such property.
3.8 Insurance. Borrower will maintain in force casualty insurance on any
property of the Borrower in accordance with the terms contained in the Bank's
mortgage on the property.
3.9 Notification of Default. Within five (5) days of becoming aware of the
existence of any condition or event which constitutes an Event of Default, or
any condition or event which would upon notice or lapse of time, or both,
constitute an Event of Default, Borrower shall give Bank written notice thereof
specifying the nature and duration thereof and the action being or proposed to
be taken with respect thereto.
3.10 Notification of Material Litigation. Borrower will promptly notify the
Bank in writing of any litigation or of any investigative proceedings of a
governmental agency or authority commenced or threatened against it which would
or might be materially adverse to the financial condition of Borrower or any
guarantor of the Obligations.
3.11 Pension Plans. With respect to any pension or benefit plan maintained by
Borrower, or to which Borrower contributes ("Plan"), the benefits under which
are guarantied, in whole or in part, by the Pension Benefit Guaranty Corporation
created by the Employee Retirement Income Security Act of 1974, P.L. 93-406, or
any governmental authority succeeding to any or all of the functions of the
Pension Benefit Guaranty Corporation ("Pension Benefit Guaranty Corporation"),
Borrower will (a) fund each Plan as required by the provisions of Section 412 of
the Internal Revenue Code of 1986, as amended; (b) cause each Plan to pay all
benefits when due; (c) furnish Bank (i) promptly with a copy of any notice of
each Plan's termination sent to the Pension Benefit Guaranty Corporation and
(ii) no later than the date of submission to the Department of Labor or to the
Internal Revenue Service, as the case may be, a copy of any request for waiver
from the funding standards or extension of the amortization periods required by
Section 412 of the Internal Revenue Code of 1986, as amended; and (d) subscribe
to any contingent liability insurance provided by the Pension Benefit Guaranty
Corporation to
5
protect against employer liability upon termination of a guarantied pension
plan, if available to Borrower.
4. NEGATIVE COVENANTS
4.1 Financial Covenants. The Borrower will not at any time or during any
fiscal period (as applicable) Fail to be in compliance with any of the financial
covenants in this section.
(a) Definitions. The following definitions shall apply to this Section:
(i) "Capital Expenditures" ("CAPEX") shall mean for any period,
all acquisitions of machinery, equipment, land, leaseholds,
buildings, improvements and all other expenditures considered to be
for fixed assets under GAAP, consistently applied. Where an asset is
acquired under a capital lease, the amount required to be
capitalized shall be considered a capital expenditure during the
first year of the lease.
(ii) "Current Maturity of Long-Term Debt ("CMLTD") shall mean, for
any period, the current scheduled principal or capital lease
payments required to be paid during the applicable period.
(iii) "Earnings" shall mean earnings as defined under GAAP.
(iv) "EBITDA" shall mean, for any period, Earnings from continuing
operations before payment of federal, state and local income taxes,
plus Interest Expense, depreciation and amortization, in each case
for such period, computed and calculated in accordance with GAAP.
(v) "Indebtedness" shall mean (x) all indebtedness for borrowed
money or for the deferred purchase price of property or services,
and all obligations under leases which are or should be, under GAAP,
recorded as capital leases, in respect of which a person is directly
or contingently liable as borrower, guarantor, endorser or
otherwise, or in respect of which a person otherwise assures a
creditor against loss, (y) all obligations for borrowed money or for
the deferred purchase price of property or services secured by (or
for which the holder has an existing right, contingent or otherwise,
to be secured by) any lien upon property (including without
limitation accounts receivable and contract rights) owned by a
person, whether or not such person has assumed or become liable for
the payment thereof, and (z) all other liabilities and obligations
which would be classified in accordance with GAAP as liabilities on
a balance sheet or to which reference should be made in footnotes
thereto.
(vi) "Intangible Assets" shall mean, as of the date of
determination thereof, assets that in accordance with GAAP are
properly classifiable as
6
intangible assets, including, but not limited to, goodwill,
franchises, licenses, patents, trademarks, trade names and
copyrights.
(vii) "Interest Expense" shall mean, for any period, ordinary,
regular, recurring and continuing expenditures for interest on all
borrowed money.
(viii) "Subordinated Indebtedness" shall mean, as of the date of
determination thereof, all Indebtedness which has been subordinated
in writing to the obligations owing to the Bank on terms and
conditions acceptable to the Bank.
(ix) "Tangible Net Worth" shall mean, as of the date of
determination thereof, total assets, excluding all Intangible Assets
and all obligations owed from affiliates or any employee, less total
liabilities.
(x) "Unfinanced CAPEX" shall mean, for any period, Capital
Expenditures less new long-term Indebtedness issued during such
period to fund the Capital Expenditures.
(b) Debt to Capital Base. The Borrower shall not permit the ratio of its
Indebtedness minus Subordinated Indebtedness to Tangible Net Worth plus
Subordinated Indebtedness to be greater than 4.75 to 1.0 at fiscal year
end.
(c) EBITDA (less Taxes Paid in cash and Unfinanced CAPEX) to Interest
Expense plus CMLTD. The Borrower shall not permit the ratio of its EBITDA,
minus taxes paid in cash and Unfinanced CAPEX, to Interest Expense plus
CMLTD, to be less than 1.0 to 1.0 for year one, 1.15 to 1.0 for year two,
and 1.25 for year three and thereafter. The foregoing formula shall be
tested upon receipt of audited fiscal year end statements.
4.2 Loans or Advances. Borrower shall not make any loans or advances to any
individual, firm or corporation, including without limitation its officers and
employees; provided, however, that Borrower may make advances to its employees,
including its officers, with respect to expenses incurred or to be incurred by
such employees in the ordinary course of business which expenses are
reimbursable by Borrower; and provided further, however, that Borrower may
extend credit in the ordinary course of business in accordance with customary
trade practices.
4.3 Investments. The Borrower shall not make investments in, or advances to,
any individual, partnership, corporation, limited liability company, trust or
other organization or person. The Borrower will not purchase or otherwise invest
in or hold securities, nonoperating real estate or other nonoperating assets or
purchase all or substantially all the assets of any entity.
4.4 Merger. Borrower will not merge or consolidate or be merged or
consolidated with or into any other entity.
7
4.5 Sale of Assets. Borrower shall not sell, lease or otherwise dispose of any
of its assets, except in the ordinary and usual course of business and except
for the purpose of replacing machinery, equipment or other personal property
which, as a consequence of wear, duplication or obsolescence, is no longer used
or necessary in the Borrower's business, provided that fair consideration is
received therefor; provided, however, in no event shall the Borrower sell, lease
or otherwise dispose of any equipment purchased with the proceeds of any loans
made by the Bank.
4.6 Other Business. Borrower shall not engage in any business other than the
business in which it is currently engaged or a business reasonably allied
thereto.
4.7 Change of Name. Borrower shall not change its legal name or the State of
its organization, without giving the Bank at least 30 days prior written notice
thereof.
5. DEFAULT
5.1 Default. "Event of Default" shall mean the occurrence of one or more of
any of the following events:
(a) failure to pay in full and within 15 days of any due date of any
installment of principal and interest under the Note or default of the Borrower
of any other liability, obligation or undertaking hereunder under any other Loan
Document;
(b) if any statement, representation or warranty heretofore, now or hereafter
made by the Borrower in connection with this Agreement or in any supporting
financial statement of the Borrower shall be determined by the Bank to have been
false in any material respect when made;
(c) if the Borrower is a corporation, trust, partnership or limited liability
company, the liquidation, termination or dissolution of any such organization,
or the merger or consolidation of such organization into another entity, or its
ceasing to carry on actively its present business or the appointment of a
receiver for its property;
(d) the institution by or against the Borrower of any proceedings under the
Bankruptcy Code 11 USC Section 101 et seq. or any other law in which the
Borrower is alleged to be insolvent or unable to pay its debts as they mature,
or the making by the Borrower of an assignment for the benefit of creditors or
the granting by the Borrower of a trust mortgage for the benefit of creditors.
Notwithstanding the foregoing, if a proceeding under the Bankruptcy Code is
instituted against the Borrower, the Borrower shall have 60 days to have the
proceedings vacated prior to said event being deemed a default;
8
5.2 Acceleration. If an Event of Default shall occur, at the election of the
Bank, all Obligations shall become immediately due and payable without notice or
demand.
5.3 Nonexclusive Remedies. All of the Bank's rights and remedies not only
under the provisions of this Agreement but also under any other agreement or
transaction shall be cumulative and not alternative or exclusive, and may be
exercised by the Bank at such time or times and in such order of preference as
the Bank in its sole discretion may determine.
6. MISCELLANEOUS
6.1 Waivers. The Borrower waives notice of intent to accelerate, notice of
acceleration, notice of nonpayment, demand, presentment, protest or notice of
protest of any obligations, and all other notices, consents to any renewals or
extensions of time of payment thereof, and generally waives any and all
suretyship defenses and defenses in the nature thereof.
6.2 Waiver of Homestead. To the maximum extent permitted under applicable law,
the Borrower hereby waives and terminates any homestead rights and/or exemptions
respecting any of its property under the provisions of any applicable homestead
laws, including without limitation, Section 52-352b of the Connecticut General
Statutes Annotated.
6.3 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.
6.4 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 Bankin the event of default or event with
which the passage of time and/or with the giving of notice would constitute a
default.
6.5 Indemnification. Subject to the same limitations provided in the Hazardous
Substance Certificate and Indemnity Agreement of even date herewith, the
Borrower shall indemnify, defend and hold the Bank harmless of and from any
claim brought or threatened against the Bank by the Borrower or any other person
(as well as from reasonable attorneys' fees and expenses in connection
therewith) on account of the Bank's relationship with the Borrower (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
9
Borrower), except for any claim arising out of the negligence or intentional act
of the Bank. The within indemnification shall survive payment of the
Obligations, and/or any termination, release or discharge executed by the Bank
in favor of the Borrower.
6.6 Costs and Expenses. The Borrower shall pay to the Bank any and all costs
and expenses (including, without limitation, reasonable attorneys' fees (which
may include allocable cost of the Bank's internal Legal Department), 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 the Obligations, 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 any collateral or in collecting or attempting to
collect or enforcing or attempting to enforce payment of any Obligation.
6.7 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.
6.8 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.
6.9 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
terminated as to future transactions by written notice from either party to the
other party of the termination hereof; provided that any such termination shall
not release or affect any Obligations incurred or rights accrued hereunder prior
to the effective date of such notice (as hereinafter defined) of such
termination. The Bank may transfer and assign this Agreement and deliver it to
the assignee, who, after the assignment is effective, shall 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 arising after such
assignment is effective. The Borrower may not assign or transfer any of its
rights or obligations under this Agreement. 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.
6.10 Further Assurances. Borrower will from time to time execute and deliver to
Bank, and take or cause to be taken, all such other or further action as Bank
may request in order to effect and confirm or vest more securely in Bank all
rights contemplated by this Agreement and the other Loan Documents or to comply
with applicable statute or law.
6.11 Amendments and Waivers. This Agreement may be amended and Borrower may
take any action herein prohibited, or omit to perform any act herein it is
required to perform. If Borrower shall obtain the Bank's prior written consent
to each such
10
amendment, action or omission to act. No delay or omission on the part of 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 or any right or remedy of Bank on any future occasion.
6.12 Terms of Agreement. This Agreement shall continue in full force and effect
so long as any Obligations or obligation of Borrower to Bank shall be
outstanding, or the Bank shall have any obligation to extend any financial
accommodation hereunder, and is supplementary to each and every other agreement
between 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 Borrower under any such agreement, nor shall any
contemporaneous or subsequent agreement between 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 Borrower
hereunder, unless such other agreement specifically refers to this Agreement and
expressly so provides.
6.13 Notices. Any notice under or pursuant to this Agreement shall be a signed
writing or other authenticated record (within the meaning of Article 9 of the
Code). Any such notice shall be deemed duly received and effective (i) if
delivered in hand to, or received by, any officer or agent of the Borrower or
the Bank, upon such delivery or receipt, or (ii) if mailed by registered or
certified mail, return receipt requested, postage prepaid, and properly
addressed to the Borrower or the Bank, two (2) business days after being so
mailed. A party's proper address is that set forth for such party in this
Agreement or such address as that party may from time to time hereafter
designate by notice to the other party.
6.14 Governing Law. This Agreement shall take effect as a sealed instrument and
has been executed or completed and/or is to be performed in Connecticut, 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 domestic laws of Connecticut.
6.15 Reproductions. This Agreement and all documents which have been or may be
hereinafter furnished by Borrower to the Bank may be reproduced by the Bank by
any photographic, photostatic, microfilm, xerographic or similar process, and
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made in the regular course of
business) provided Bank is in fact the holder of the Note.
6.16 Venue. Borrower irrevocably submits to the nonexclusive jurisdiction of
any Federal or state court sitting in Connecticut, over any suit, action or
proceeding arising out of or relating to this Agreement. Borrower irrevocably
waives, to the fullest extent it may effectively do so under applicable law, any
objection it may now or hereafter have to the laying of the venue of any such
suit, action or proceeding brought in any such court
11
and any claim that the same has been brought in an inconvenient forum. Borrower
hereby consents to any and all process which may be served in any such suit,
action or proceeding, (i) by mailing a copy thereof by registered and certified
mail, postage prepaid, return receipt requested, to the Borrower's address shown
in this Agreement or as notified to the Bank and (ii) by serving the same upon
the Borrower in any other manner otherwise permitted by law, and agrees that
such service shall in every respect be deemed effective service upon Borrower.
6.17 JURY WAIVER. THE BORROWER AND BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, (A) WAIVE
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 CANNOT
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.
6.18 PREJUDGMENT REMEDY WAIVER. BORROWER HEREBY REPRESENTS, COVENANTS AND
AGREES THAT THE PROCEEDS OF THE LOAN SHALL BE USED FOR GENERAL COMMERCIAL
PURPOSES AND THAT SUCH LOAN IS A COMMERCIAL TRANSACTION AS DEFINED BY THE
STATUTES OF THE STATE OF CONNECTICUT. BORROWER HEREBY WAIVES ALL RIGHTS TO
NOTICE AND PRIOR COURT HEARING OR COURT ORDER UNDER CONNECTICUT GENERAL STATUTES
ANNOTATED, SECTION 52-278A ET. SEQ., AS AMENDED, OR UNDER ANY OTHER STATE OR
FEDERAL LAW WITH RESPECT TO ANY AND ALL PREJUDGMENT REMEDIES BANK MAY EMPLOY TO
ENFORCE ITS RIGHTS AND REMEDIES HEREUNDER. MORE SPECIFICALLY, BORROWER
ACKNOWLEDGES THAT BANK'S ATTORNEY MAY, PURSUANT TO CONNECTICUT GENERAL STATUTES
ANNOTATED, SECTION 52-278F, ISSUE A WRIT FOR PREJUDGMENT REMEDY WITHOUT SECURING
A COURT ORDER. BORROWER ACKNOWLEDGES AND RESERVES ITS RIGHT TO NOTICE AND A
HEARING SUBSEQUENT TO THE ISSUANCE OF A WRIT FOR PREJUDGMENT REMEDY BY BANK'S
ATTORNEY, AND BANK ACKNOWLEDGES BORROWER'S RIGHT TO SAID HEARING SUBSEQUENT TO
THE ISSUANCE OF SAID WRIT. BORROWER FURTHER HEREBY WAIVES ANY REQUIREMENT OR
OBLIGATION OF BANK TO POST A BOND OR OTHER SECURITY IN CONNECTION WITH ANY
PREJUDGMENT REMEDY OBTAINED BY BANK AND WAIVES ANY OBJECTIONS TO ANY PREJUDGMENT
REMEDY OBTAINED BY BANK BASED ON ANY OFFSETS, CLAIMS, DEFENSES OR COUNTERCLAIMS
OF BORROWER OR ANY OTHER OBLIGATED PARTY TO ANY ACTION BROUGHT BY BANK. BORROWER
ACKNOWLEDGES AND AGREES THAT
12
ALL OF THE WAIVERS CONTAINED IN THIS SECTION HAVE BEEN MADE KNOWINGLY,
VOLUNTARILY, INTENTIONALLY AND INTELLIGENTLY. AND WITH THE ADVICE OF ITS
COUNSEL.
Executed as an instrument under seal as of March 5, 2004.
Witness: Borrower:
Apex Machine Tool Company, Inc.
/s/Xxxxxx X. Xxxx By: /s/Xxxxx X. Purple
----------------------- -------------------------
Xxxxx X. Purple
Its Secretary, duly authorized
Witness: Borrower:
EDAC Technologies Corporation
/s/Xxxxxx X. Xxxx By: /s/Xxxxx X. Purple
------------------------- ----------------------------
Xxxxx X. Purple
Its Vice President-Finance, duly authorized
Accepted: Banknorth, N.A.
By: /s/Xxxx X. Xxxxxxx
----------------------
Xxxx X. Xxxxxxx
Senior Vice President
13
