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Exhibit 10.40
FIRST MODIFICATION TO CREDIT AGREEMENT
This first modification to the Credit Agreement dated as of
November 16, 1994, (the "Credit Agreement"), among Shawmut Bank, N.A. (the
"Lender") and BTU International, Inc., a Delaware corporation (the "Borrower"),
is made as of October 20, 1995. All capitalized terms used herein and not
otherwise defined shall have the respective meanings provided such terms in the
Credit Agreement.
RECITALS
WHEREAS, the Credit Agreement provides Borrower with a Revolving Line
of Credit and an Equipment Line of Credit each of which terminate as of
July 1, 1997;
WHEREAS, the Lender is willing to extend the termination date on the
terms and conditions contained herein provided that the Borrower enters into
this First Modification to Credit Agreement ("Modification"); and
WHEREAS, the Lender and the Borrower desire to make certain other
changes to the Credit Agreement.
NOW, THEREFORE, in furtherance of the foregoing, and in consideration
of mutual promises and other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. MODIFICATIONS TO CREDIT AGREEMENT.
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(a) Section 2.2 of the Credit Agreement is amended by deleting the
words "Eurodollar Rate" throughout this Section and by inserting the words
"Eurodollar Revolving Credit Rate" in place thereof.
(b) Section 2.3(a) of the Credit Agreement is amended by deleting
the words "Eurodollar Rate" and by inserting the words "Eurodollar Revolving
Credit Rate" in place thereof.
(c) Sections 2.3(b) and (c) of the Credit Agreement is amended by
deleting the words "Eurodollar Loan" and inserting the words "Eurodollar
Revolving Credit Loan" in place thereof and by deleting the words "Eurodollar
Rate" and by inserting the words "Eurodollar Revolving Credit Rate".
(d) Section 2.4 of the Credit Agreement is deleted and the
following inserted in place thereof:
2.4 Prepayment of Eurodollar Loans.
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(a) MAKE-WHOLE PAYMENTS. The Borrower shall pay to
Lender on demand such amount or amounts as shall, in the
conclusive judgment of Lender
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(in the absence of manifest error), compensate Lender
for any loss, cost or expense sustained or incurred by the
Lender as a result of (i) any payment or prepayment of any
Eurodollar Loan required or permitted under this Agreement, if
such Eurodollar Loan is prepaid other than on the last day of
the Interest Period for such Eurodollar Loan, (ii) the
conversion, for any reason whatsoever, whether voluntary or
involuntary, of any Eurodollar Loan to a Base Rate Loan on a
date other than the last day of the applicable Interest Period,
or (iii) in the event that after the Borrower delivers an
Eurodollar Loan Notice in respect of an Eurodollar Loan, such
Eurodollar Loan is not made on the first day of the Interest
Period specified in such notice of borrowing for any reason
other than a breach by the Lender of its obligations hereunder.
Such amounts payable by Borrower shall be equal to any
administrative costs incurred by lender, plus any amounts
required to compensate Lender for any loss or expense incurred
or sustained by Lender including, without limitation, any
interest or other amounts payable by the Lender to other
financial institutions in order to make or maintain such
Eurodollar Loan. In the event any such amount is payable by
Borrower, the Lender shall deliver to the Borrower from time to
time one or more certificates setting forth the amount due as
determined by the Lender, which certificate shall be conclusive
and binding on Borrower, absent manifest error.
(b) LIMITATIONS ON EURODOLLAR LOANS. (i) In the
event the Lender determines that by reason of circumstances
affecting the inter-bank Eurodollar market, adequate and
reasonable means do not exist for determining the LIBOR Rate on
Eurodollar deposits in the relevant amount and for the relevant
maturity are not available to Lender in the inter-bank
Eurodollar market, with respect to a proposed Eurodollar Loan,
Lender shall give the Borrower prompt notice of such
determination. If such notice is given, then (A) any requested
Eurodollar Loan shall be made as a Base Rate Loan, unless the
Borrower gives Lender one Business Day's prior written notice
that its request for such borrowing is cancelled; (B) any Loan
which was to have been converted to a Eurodollar Loan shall be
continued as a Base Rate Loan; and (C) any outstanding
Eurodollar Loan shall, upon the expiration of the applicable
Interest Period, be converted to a Base Rate Loan. Until such
notice has been withdrawn, Lender shall have no obligation to
make Eurodollar Loans or maintain outstanding Eurodollar Loans
and the Borrower shall not have the right to convert Base Rate
Loans to Eurodollar Loans.
(ii) Notwithstanding any other provisions of this
Agreement, if, after the date of this Agreement, any applicable
law, treaty, regulation or directive, or any change therein or
in the interpretation or application thereof, shall make it
unlawful for Lender to make or maintain any Eurodollar Loans,
the obligation of Lender hereunder to make or maintain such
Eurodollar Loans shall forthwith be suspended for the duration
of such illegality and the Borrower shall, if any Eurodollar
Loan is outstanding promptly, upon request from Lender, prepay
such advance or convert such Eurodollar Loan to a Base Rate
Loan. If any such payment is made on a day that is not the
last Business Day of the then current
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Interest Period applicable to such Eurodollar Loan, the
Borrower shall pay Lender, upon Lender's request, the amounts
required under Section 2.4(a).
(e) Section 2.9 of the Credit Agreement is amended by deleting the
Section in its entirety and by inserting the following in place thereof:
2.9 Interest on Equipment Loans.
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(a) INTEREST RATE. The Borrower shall pay interest
on the unpaid principal amount of each Equipment Loan
outstanding at any time, and from time to time, for the period
from the Borrowing Date at one of the following rates per annum
elected by Borrower two Business Days prior to the date such
Equipment Loan is made: (i) the Base Rate, or (ii) the
Eurodollar Equipment Rate.
(b) EURODOLLAR LOAN NOTICE. To borrow at the
Eurodollar Equipment Rate, the Borrower must submit a
Eurodollar Loan Notice to Lender prior to 11:00 a.m. (Eastern
Time) on a Business Day at least two (2) Business Days prior to
the commencement of the Interest Period for such Eurodollar
Equipment Rate borrowing. Each Eurodollar Equipment Loan shall
be for an Interest Period of twelve (12) months and shall, upon
expiration of the Interest Period applicable to each Eurodollar
Equipment Loan, be continued as a Base Rate Equipment Loan
unless Borrower shall have timely provided a Eurodollar Loan
Notice prior to the expiration of such Interest Period. For
any Equipment Loan for which the Borrower elects the Eurodollar
Equipment Rate, the Eurodollar Equipment Rate shall apply only
to the portion of the Equipment Loan equal to the principal
amount that will remain outstanding at the end of the
applicable Interest Period given the amortization required by
Section 2.10 and the Base Rate shall apply to all principal
amounts to be amortized pursuant to Section 2.10 during the
applicable Interest Period. All Eurodollar Equipment Loans
shall be subject to prepayment only as provided in Section 2.4.
(c) CONVERSION OF EQUIPMENT LOANS. Provided that
no Event of Default has occurred and is continuing the Borrower
may, on any Business Day, convert any outstanding Base Rate
Equipment Loan to a Eurodollar Equipment Loan and convert a
Eurodollar Equipment Loan to a Base Rate Equipment Loan only on
the last Business Day of the then current Interest Period
applicable to such Eurodollar Equipment Loan. If the Borrower
desires to convert an Equipment Loan, it shall give the Lender
not less than two (2) Business Days' prior written notice,
specifying the date of such conversion, the amount to be
converted, and if conversion is from a Base Rate Equipment Loan
to a Eurodollar Equipment Loan, the duration of the first
Interest Period therefor.
(f) Section 2.10 of the Credit Agreement is amended by deleting the
words "(b) if such Equipment Loan is a Cost of Funds Rate Equipment Loan, of
principal and interest, with each such installment equal in amount, payable on
the First Business Day of each month,
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commencing, in each such case, on the first such day to occur after the
Equipment Loan is made" and inserting the following words in place thereof:
(b) if such Equipment Loan is a Eurodollar Equipment Loan, of
principal each in an amount equal to one-eighty-fourth (1/84th)
of the aggregate principal balance on the Borrowing Date for
such Equipment Loan, together with all interest accrued thereon
payable on the First Business Day of each month.
(g) Section 2.11 of the Credit Agreement is amended by deleting the
section in its entirety and by inserting the following in place thereof:
2.11 PREPAYMENT OF EQUIPMENT LOANS. Borrower may prepay
Base Rate Equipment Loans in whole or in part at any time
without penalty or premium. All Eurodollar Equipment Loans
shall be subject to prepayment only as provided in Section 2.4.
(h) Section 2.14(b) of the Credit Agreement is amended by deleting
the section in its entirety and by inserting the following in place thereof:
(b) For the first Standby Letter of Credit issued
by Lender and on the second and all subsequent Standby Letters
of Credit issued by Lender that are secured by cash pledged to
Lender in a manner satisfactory to Lender, the Borrower shall
pay to Lender a fee equal to the greater (i) one-quarter of one
percent (1/4 of 1.0%) per annum on the face amount of such
Standby Letters of Credit or (ii) the Letter of Credit Fee for
each such Standby Letter of Credit, which fee shall be paid in
full issuance of such Letters of Credit and on the anniversary
of each such issuance. For all unsecured Standby Letters of
Credit issued by Lender, Borrower shall pay to Lender a fee
equal to the greater of (i) five-eights of one percent (5/8 of
1.0%) per annum on the face amount of such unsecured Letters of
Credit or (ii) the Letter of Credit Fee for each such
unsecured Standby Letter of Credit, which fee shall be paid in
full upon issuance of each such Standby Letter of Credit and on
the anniversary of each such issuance. The "Letter of Credit
Fee" is currently $275.00 per annum but is subject to change at
the Lender's discretion. Borrower shall pay to Lender a fee
equal to one-quarter of one percent (1/4 of 1.0%) per annum on
the face amount of all Commercial Letters of Credit, which fee
shall be paid in full upon issuance of each such Commercial
Letter of Credit and on the anniversary of each such issuance.
Borrower shall also pay to Lender on demand all opening,
amendment, drawing and other administrative fees charged by
Lender from time to time on Letters of Credit.
(i) Paragraph 5.5(b) of the Credit Agreement is amended by deleting
the words "and (iv) on" and inserting the words "(iv) on" in place thereof and
by inserting the following words at the end of the paragraph:
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and (v) on December 31, 1997 and thereafter - the Tangible
Net Worth of Borrower at December 31, 1996 plus the net
increase in retained earnings of Borrower during its fiscal
year ended December 31, 1997.
(j) Section 8.10 of the Credit Agreement is amended by deleting the
section in its entirety and by inserting the following in place thereof:
8.10 CHANGE IN LAWS. If while any Loan is outstanding, any
law, executive order or regulation is enforced, adopted or
interpreted which is applicable generally to national bank
associations in the United States of America so as to affect
any of Borrower's obligations or the compensation to Lender in
respect of any Eurodollar Loan or the cost to Lender of making
any Eurodollar Loan, Lender shall notify Borrower thereof in
writing and Borrower shall, promptly upon Lender's request,
reimburse or indemnify Lender, with respect thereto so that
Lender shall be in the same position as if there had been no
such enforcement, adoption or interpretation. The foregoing
agreement of Borrower to reimburse or indemnify Lender shall
apply in (but shall not be limited to) the case of an
imposition of or change in reserve, capital maintenance or
other similar requirements or in United States interest
equalization taxes or other excise or similar taxes or monetary
restraints, except a change in tax on the net income of Lender.
(k) The definition of "INTEREST PERIOD" contained in Schedule 1 of
the Credit Agreement is hereby amended by deleting the words "July 1, 1997"
wherever they appear within such definition and by inserting the words
"July 1, 1998" in place thereof.
(l) Schedule 1 of the Credit Agreement is hereby amended by
deleting the definitions of "BUSINESS DAY", "EURODOLLAR LOAN NOTICE",
"EURODOLLAR LOANS" and "TERMINATION DATE" therefrom and inserting the
following definitions in lieu therof:
"BUSINESS DAY" - any day on which commercial banks are open for
domestic and international business, including dealing in
dollar deposits in New York, New York, Boston, Massachusetts
and Hartford, Connecticut and if the applicable Business Day
relates to a Eurodollar Loan or Eurodollar Equipment Loan, any
London Banking Day.
"EURODOLLAR LOAN NOTICE" - Borrower's notive given pursuant to
either Section 2.3 or 2.9 that Borrower elects (i) to borrow a
Revolving Credit Loan and pay interest at the applicable
Eurodollar Revolving Credit Rate or (ii) to borrow an Equipment
Loan and pay interest at the applicable Eurodollar Equipment
Rate or (iii) convert an outstanding Revolving Credit Loan or
Equipment Loan to a Eurodollar Loan and specifying the
applicable Interest Period therefor.
"EURODOLLAR LOAN" - an Eurodollar Equipment Loan or an
Eurodollar Revolving Credit Loan.
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"TERMINATION DATE" - the earlier of (a) July 1, 1998, and
(b) the date the Lender's commitment to Loans is
terminated pursuant to Section 7.2 of Article 7.
(m) Schedule 1 of the Credit Agreement is hereby amended by
inserting the following definitions:
"BASE RATE LOAN" - a Base Rate Equipment Loan or a Base Rate
Revolving Credit Loan.
"EURODOLLAR EQUIPMENT LOANS" - Equipment Loans bearing interest
at the Eurodollar Equipment Rate.
"EURODOLLAR EQUIPMENT RATE" - the LIBOR Rate plus 150 basis
points.
"EURODOLLAR REVOLVING CREDIT LOANS" - Revolving Credit Loans
bearing interest at the Eurodollar Revolving Credit Rate.
"EURODOLLAR REVOLVING CREDIT RATE" - the LIBOR Rate plus 125
basis points.
(n) Schedule 1 of the Credit Agreement is hereby amended by
deleting the definitions of "COST OF FUNDS RATE", "COST OF FUNDS RATE EQUIPMENT
LOAN" and "EURODOLLAR RATE" therefrom.
(o) Exhibit B to the Credit Agreement is hereby amended by deleting
it in its entirety and replacing it with EXHIBIT B attached hereto.
SECTION 2. REPRESENTATIONS AND WARRANTIES. In order to induce the Lender to
enter into this Modification, The Borrower makes the following representations
and warranties, all of which shall survive the execution and delivery of this
Modification:
(a) The Borrower has adequate corporate power and authority to
execute and deliver this Modification and the other agreements, documents and
instruments executed in connection herewith or contemplated hereby, and to
perform its obligations hereunder and thereunder and under the Credit Agreement
as amended hereby.
(b) This Modification and each of the other agreements, documents
and instruments executed by the Borrower in connection herewith or contemplated
hereby, has been duly authorized, executed and delivered by the Borrower, and
does not contravene any law, rule or regulation applicable to the Borrower or
any of the terms of its Certificate of Incorporation or by-laws or any other
indenture, agreement or undertaking to which the Borrower is a party.
(c) This Modification effectively amends the Credit Agreement in
accordance with the terms hereof. The obligations, of the Borrower hereunder
and under the other agreements, documents and instruments executed in
connection herewith or contemplated hereby, and under the Credit Agreement as
amended hereby constitute the legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their respective
terms.
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(d) Upon the execution and delivery of this Modification and the
other agreements, documents and instruments executed in connection herewith or
contemplated hereby, and the satisfaction of each of the conditions precedent
set forth in Section 3 of this Modification, no Event of Default shall exist
and be continuing.
SECTION 3. CONDITIONS PRECEDENT. The agreements contained herein and
the amendments contemplated hereby shall become effective on the date (the
"Effective Date") when each of the parties hereto shall have executed a copy
hereof and shall have delivered the same to the Lender and when each of the
following conditions shall have been fulfilled:
(a) EXECUTIONS OF DOCUMENTS, ETC. Each of this Modification, and
any other agreements, documents and instruments to be executed and/or delivered
in connection herewith and therewith, including but not limited to a First
Amendment to the Revolving Credit Note in the form attached hereto as Exhibit A
(collectively the "Transaction Documents") shall have been duly and properly
authorized, executed and delivered by the respective party or parties thereto
and shall be in full force and effect on and as of the Effective Date of this
Modification. Executed original counterparts of each of the aforementioned
documents shall have been furnished to the Lender.
(b) PROCEEDINGS; RECEIPT OF DOCUMENTS. All requisite corporate
action and proceedings in connection with the execution and delivery of this
Modification and the other Transaction Documents shall be satisfactory in form
and substance to the Lender and its counsel, and the Lender and its counsel
shall have received all information and copies of all documents, including
without limitation, records of requisite corporate action and proceedings which
the Lender or its counsel may have requested in connection therewith, such
documents where requested by the Lender or its counsel to be certified by
appropriate persons or governmental authorities. All conditions to the
effectiveness of this Section 3, including, without limitation, the delivery of
documents required in connection therewith, shall be completed to the
satisfaction of the Lender at or prior to such execution and delivery.
(c) MATERIAL LITIGATION. There shall be no pending or, to the best
knowledge of the Borrower, threatened litigation with respect to the Borrower
before any court, arbitrator or governmental or administrative body or agency
which challenges or related to (i) the transactions contemplated hereby or (ii)
the Loan Documents, as amended hereby and by the other Transaction Documents,
or which might have a material adverse effect on the business, operations,
properties, assets, liabilities or condition, financial or otherwise, of the
Borrower.
(d) NO MATERIAL ADVERSE CHANGE. In the judgment of the Lender (a)
no material adverse change shall have occurred in the financial condition of
the Borrower from that reflected in the financial statements of the Borrower as
of March 31, 1995 delivered to Lender and (b) no other material adverse change
shall have occured in the assets, liabilities, properties, business, operations
or condition (financial or otherwise) of the Borrower since that date.
SECTION 4. REAFFIRMATION AND RATIFICATION OF EXISTING AGREEMENTS, ETC.
The Borrower: (i) reaffirms and ratifies all the obligations to the Lender
under or in respect of the
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Credit Agreement and the other Loan Documents, (ii) certifies that there are no
defenses, offsets or counterclaims thereto as of the date hereof to said
obligations, (iii) expressly acknowledges its continuing liability pursuant
thereto, and (iv) agrees that each of the Credit Agreement and the other Loan
Documents, shall remain in full force and effect, enforceable against the
Borrower in accordance with its terms, and (v) hereby confirms that such
obligations shall survive and continue in accordance with said terms as said
documents are amended by this Modification. Further, the Borrower understands
that the Lender is relying on these representations as a basis for entering
into this Modification.
SECTION 5. MISCELLANEOUS.
(a) This Modification may be executed on separate counterparts by
the parties hereto, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same agreement.
(b) This Modification and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the laws of
the Commonwealth of Massachusetts (without giving effect to the conflict of law
principles thereof).
(c) The headings of the several sections of this Modification are
inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Modification.
(d) This Modification, together with the other Transaction
Documents, and the Loan Documents, as modified by this Modification and the
other Transaction Documents, embodies the entire agreement and understanding
among the parties relating to the subject matter hereof and supersedes all
prior proposals, negotiation, agreements and understandings relating to such
subject matter.
(e) Each of this Modification and the other Transaction Documents
shall be considered a "Loan Document" under and as defined in the Credit
Agreement.
(f) No provision of this Modification, the Transaction Documents,
or the Loan Documents shall require the payment, or permit the collection, of
interest in excess of the highest rate permitted by applicable law. To the
extent that any interest received by Lender exceeds the maximum amount
permitted, such payment shall be credited to unpaid principal, PROVIDED,
however, that any excess amount remaining after full payment of principal shall
be refunded to Borrower.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Modification to be duly executed by its duly authorized officer as an
instrument under seal in the Commonwealth of Massachusetts as of the day and
year first above written.
WITNESS: SHAWMUT BANK, N.A.
/s/ Xxxxx X. XxXxxxxxx By: /s/ Xxxxx X. XxXxxxxxx
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Name: Xxxxx X. XxXxxxxxx
Title: VP
BTU INTERNATIONAL, INC.
By: /s/ Xxxx Van der Xxxxxx
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Name: Xxxx Van der Xxxxxx
Title: President
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FIRST AMENDMENT TO
REVOLVING CREDIT NOTE
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This is a First Amendment to Revolving Credit Note dated as of
October 20, 1995, amending a certain Revolving Credit Note (the "Note") in
the original principal amount of Five Million Dollars ($5,000,000.00) dated
November 16, 1994, made by BTU International, Inc., a Delaware corporation
(the "Maker"), payable to the order of Shawmut Bank, N.A., a national banking
association (the "Lender").
WHEREAS, the Maker and Lender have agreed to change the "Eurodollar
Rate" of interest payable under the Note;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Note is hereby amended, (i)
to change the term "Eurodollar Rate" to "Eurodollar Revolving Credit Rate"
which shall be a rate per annum equal to the sum of the LIBOR Rate (as defined
in the Agreement) plus 125 basis points and (ii) the entire balance of
principal, accrued interest and other fees and charges shall be due and payable
on July 1, 1998 except as otherwise provided for in the Agreement (as defined
in the Note) as amended.
Except as so amended, the Note shall remain in full force and effect in
accordance with its original terms.
Executed as an instrument under seal as of the date first above
written.
WITNESS: BTU INTERNATIONAL, INC.
/s/ Xxxxx X. XxXxxxxxx By: /s/ Xxxx Van der Xxxxxx
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Name: Xxxx Van der Xxxxxx
Title: President
SHAWMUT BANK, N.A.
By: /s/ Xxxxx X. XxXxxxxxx
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Name: Xxxxx X. XxXxxxxxx
Title: VP
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EXHIBIT B
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EQUIPMENT NOTE
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$ Boston, Massachusetts
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FOR VALUE RECEIVED, the undersigned, BTU International, Inc., a Delaware
corporation, with a principal place of business at 00 Xxxxxxx Xxxx, Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 ("Maker"), hereby promises to pay to the order
of Shawmut Bank, N.A. with an address at Xxx Xxxxxxx Xxxxxx, Xxxxxx, XX 00000
(the "Lender"), the sum of ___________________________ DOLLARS ($____________
_________________________), or so much as may have been advanced to Maker, as
provided under that certain Credit Agreement dated as of November 16, 1994, by
and between Maker and Lender, as the same may be amended from time to time (the
"Agreement") together with interest on the unpaid principal amount from time to
time outstanding as set forth below.
Principal shall be payable in eighty-four (84) consecutive equal monthly
installments of $_____________________ on the first Business Day of each month
commencing on the first such date to occur after the date hereof. Pursuant to
the terms of the Agreement, unpaid principal outstanding hereunder shall bear
interest at a fluctuating rate per annum equal to either (i) the Base Rate or
(ii) the Eurodollar Equipment Rate, as the Borrower may elect pursuant to the
terms of the Agreement, and shall be payable in arrears on the first Business
Day of each month commencing on the first such day to occur after the date
hereof.
The entire balance of principal, accrued interest, and other fees and charges
shall be due and payable on the earlier of an Event of Default or ___________,
19___.
After maturity (whether by acceleration after default or otherwise), interest
shall be payable on the unpaid principal balance from time to time outstanding
at a rate that is three percent (3%) in excess of the rate otherwise payable,
until fully paid. Any payment hereunder not paid within fifteen (15) days after
the date such payment is due shall be subject to a late fee equal to five
percent (5%) of the amount overdue.
"Base Rate" means for any day the rate on such day as announced by Lender as
its Base Rate. Any change in rate resulting from a change in the Base Rate
shall become effective as of the day on which such change in the Base Rate
become effective. "Eurodollar Equipment Rate" means the LIBOR Rate (as defined
in the Agreement) plus 150 basis points. "Business Day" means any day on which
commercial banks are open for domestic and international business, including
dealing on dollar deposits in New York, New York, Boston, Massachusetts and
Hartford, Connecticut and, if the applicable Business Day relates to a
Eurodollar Equipment Loan, any London Banking Day.
Interest and fees shall be calculated on the basis of a 360-day year for the
actual number of days elapsed, from and including the date of each Equipment
Loan to but excluding the date of repayment. If this Note bears interest at the
Base Rate, the principal balance of this Note may be prepaid in whole or in
part, without premium or penalty, at any time. If this Note bears interest
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at the Eurodollar Equipment Rate, the principal balance of this Note may be
prepaid only upon payment of any amount due under Section 2.4 of the
Agreement.
This Note evidences a borrowing under the Agreement and is secured by and
entitled to the benefits of the provisions of the Agreement, and other Loan
Documents, as defined therein. All capitalized terms not specifically defined
herein shall have the same meanings as in the Agreement.
If an Event of Default shall occur, the entire unpaid balance of principal,
accrued interest and any and all other fees and charges may become due and
payable in the manner and with the effect provided in the Agreement.
Maker agrees to pay all costs and expenses, including, without limitation,
reasonable attorneys' fees and expenses incurred, or which may be incurred, by
Lender in connection with the negotiation, documentation, administration,
enforcement and collection of this note and any other agreements, instruments
and documents executed in connection herewith.
Maker and all guarantors and endorsers hereby waive presentment, demand, notice,
protest, and all other demands and notices in connection with the delivery,
acceptance, performance and enforcement of this Note, and assent to extensions
of the time of payment or forbearance or other indulgence without notice.
This instrument shall be governed by Massachusetts law. For purposes of any
action or proceeding involving this note, Maker hereby expressly submits to
the jurisdiction of all federal and state courts located in the Commonwealth of
Massachusetts and consents that any order, process, notice of motion or other
application to or by any of said courts or a judge thereof may be served within
or without such court's jurisdiction by registered mail or by personal
service, PROVIDED a reasonable time for appearance is allowed (but not less
than the time otherwise afforded by any law or rule), and waives any right to
contest the appropriateness of any action brought in any such court based upon
lack of personal jurisdiction, improper venue or FORUM NON CONVENIENS. MAKER
AND LENDER EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE
EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF
ANY DISPUTE ARISING UNDER OR RELATING TO THIS NOTE AND AGREES THAT ANY SUCH
DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
Execute as an instrument under seal as of the date first above written.
WITNESS: BTU INTERNATIONAL, INC.
_____________________________ By:_________________________________
Name:
Title:
