LOAN AGREEMENT
(REVOLVING CREDIT LOANS)
THIS LOAN AGREEMENT dated May 24, 1995, by and between Control
Chief Holdings, Inc. and Control Chief Corporation ("Borrowers"),
Pennsylvania corporations, with a principal place of business at
X X Xxx 000, Xxxxxxxx, Xxxxxxxxxxxx 00000 and INTEGRA BANK/NORTH
("Bank"), a Pennsylvania banking institution, with an office at 00 Xxxx
Xxxxxx, X.X. Xxx 000, Xxxxxxxx, XX 00000.
WITNESSETH:
WHEREAS, Borrower has requested Bank to make to Borrower a
loan or loans as provided herein, and Bank is willing to make such loan
or loans to Borrower subject to the terms and conditions hereof.
NOW THEREFORE, Borrower and Bank, in consideration of their
mutual covenants contained in this Loan Agreement and intending to be
legally bound hereby, agree as follows:
1. Revolving Credit Loans. Subject to the terms and
conditions hereof, relying upon the representations and warranties
herein set forth, and subject to the condition that no event of default
as defined herein has occurred and is continuing hereunder, at any time
and from time to time during the period commencing on the date of this
Loan Agreement to and including the Maturity Date (as defined in the
note dated as of the date hereof and delivered simultaneously herewith),
Bank will make revolving credit loans ("Loan(s)") to Borrower up to but
not in excess of the aggregate amount of $750,000.00 at any one time
outstanding ("Commitment Amount"). Within such limits of time and
amount, Borrower may prepay, repay and reborrow hereunder. The
obligation to repay the Loan(s) made pursuant hereto shall be evidenced
by a single revolving credit note of Borrower payable to the order of
Bank, dated as of the date hereof and delivered simultaneously herewith
("Note"). The Note shall bear interest as provided therein.
2. Representations and Warranties. Borrower hereby makes
the following representations and warranties to Bank which shall be, to
the extent applicable to Borrower, true and correct on the date hereof
and shall continue to be true and correct at the time of the making of
any of the Loan(s) and until all Loan(s) are paid in full:
(a) Organization. If Borrower is a corporation or
partnership, Borrower is duly organized, validly existing, and in good
standing under the laws of the jurisdiction in which Borrower is
incorporated or was formed; Borrower has the power and authority to own
its properties and assets and to carry on its businesses as now being
conducted and, in the case of a corporate or partnership Borrower, is
qualified to do business in every jurisdiction in which it is required
to qualify to do business or in which the failure to be qualified could
result in a material adverse change in the operation or financial
condition of Borrower. If Borrower is an individual, Borrower is at
least eighteen years of age and is under no legal disability or
incapacity.
(b) Power and Authority; No Conflict. The execution,
delivery and performance hereof and of all other documents executed in
connection herewith are within Borrower's powers, have been duly
authorized, constitute legal, valid and binding obligations of Borrower
enforceable in accordance with their terms, are not in contravention of
any law, regulation, writ, injunction, decree of any court or
governmental instrumentality or of any agreement or instrument to which
Borrower is a party or by which Borrower is bound or, in the case of a
Borrower which is a corporation or partnership, is not in contravention
of its documents of formation or organization.
(c) Authorization and Consents. No authorization,
consent, approval, license or exemption of, and no registration,
qualification, designation, declaration or filing with, any court or
governmental department, commission, board, bureau, agency, or
instrumentality, domestic or foreign, is necessary to the valid
execution and delivery of this Loan Agreement, the Note or any other
documents evidencing or relating to the Loan(s).
(d) Compliance with Laws. Borrower has complied with all
applicable laws, including but not limited to all provisions of the
Employees' Retirement Income Security Act of 1974, as amended or
supplemented from time to time, and all laws relating to workers'
safety, protection of the environment, and human health, such that
Borrower has neither been nor will be subject to any fines, penalties,
injunctive relief or similar criminal liabilities which could adversely
affect the business operations or financial condition of Borrower or the
ability of Borrower to perform Borrower's obligations under this Loan
Agreement or any document delivered in connection herewith or given in
support hereof.
(e) Financial Statements and Conditions. All financial
statements heretofore furnished Bank are correct and complete and fairly
present the financial condition and results of the operations of the
business of Borrower as of the date and for the period specified and
have been prepared in accordance with generally accepted accounting
principles consistently applied; since the date of the last balance
sheet of Borrower furnished to Bank, there has been no materially
adverse change in the business, assets, liabilities, contingent or
otherwise, or financial condition of Borrower.
(f) Taxes. Except as set forth on Schedule 2(f) to this
Loan Agreement if said schedule is attached, all federal, state, local
and other tax returns required to have been filed with respect to
Borrower have been filed or extensions granted and payment or adequate
provision has been made for the payment of all taxes, fees, assessments
and other governmental charges which have or may become due pursuant to
said returns or to assessments received; or, to the extent that such
taxes, fees, assessments and other charges are being contested in good
faith by appropriate proceedings diligently conducted, adequate reserves
or other appropriate provisions, if any, as shall be required by GAAP
shall have been made.
(g) Litigation and Environmental Responsibility. Except
as set forth on Schedule 2(g) to this Loan Agreement if said schedule is
attached, (i) there is no action, suit, or proceeding at law or in
equity or by or before any governmental instrumentality or other agency
now pending or, to the knowledge of Borrower, threatened by or against
or affecting Borrower or any of its properties or rights of Borrower
which, if adversely determined, could impair the right of Borrower to
carry on its business substantially as now conducted or could result in
a judgment against Borrower in an amount which is equal to or greater
than 10% of the Commitment Amount or $50,000, whichever is lower, and
(ii) Borrower has not received any notice of and is not aware of any
condition to the effect that Borrower is or may be, either directly,
indirectly, singly or together with others, a party actually or
potentially responsible for remediation of any environmental condition
or for civil or criminal penalties resulting from an alleged violation
of any law pertaining to protection of human health or safety or the
environment.
(h) Other Environmental Matters. Borrower does not own
or operate nor has Borrower owned or operated any property where
Hazardous Materials (as defined below) have been used, generated,
stored, or disposed of in a manner inconsistent with applicable
environmental laws, nor to the best of Borrower's knowledge after due
inquiry have there been any Hazardous Materials disposed of by any
previous owner of the property or any other third party on any property
owned or operated by Borrower. The term "Hazardous Materials" includes
hazardous waste, hazardous substances, toxic substances and all related
materials, including but not limited to all materials and substances
regulated by The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, The Resource Conservation and
Recovery Act of 1976, The Superfund Amendments and Reauthorization Act
of 1986, The Clear Water Act, The Clean Air Act, The Toxic Substance
Control Act, and/or any other applicable federal, state or local
environmental law, statute, rule, regulation or ordinance.
(i) Misrepresentation. Neither this Loan Agreement nor
any other document, statement, financial statement, or certificate
furnished to Bank by or on behalf of Borrower in connection herewith
contains an untrue statement of a material fact with respect to the
financial condition or properties of Borrower or omits to state a
material fact necessary to make the statements contained therein not
misleading or, insofar as Borrower can now foresee, which may in the
future materially adversely affect the financial condition or properties
of Borrower.
(j) Additional Representations and Warranties. In
addition to the representations and warranties set forth above, Borrower
hereby makes to Bank the representations and warranties set forth on
Schedule 2(j) to this Loan Agreement if said schedule is attached, all
of which shall be true and correct on the date hereof and shall continue
to be true and correct at the time of the making of any of the Loan(s)
and until all Loan(s) are paid in full.
3. Affirmative Covenants. Until the Note and all other
liabilities whether now or hereafter existing of Borrower to Bank are
paid in full, Borrower will:
(a) Preservation of Existence, Etc.; Use of Proceeds.
Continue Borrower's aforesaid business under Borrower's present form of
organization and not engage in any other business without the written
consent of Bank; and use the proceeds of the Loan(s) only in connection
with the said business and for working capital purposes; if Borrower is
a corporation or partnership, Borrower will remain in good standing
under the laws of the state of its organization or formation and
qualified to do business in each jurisdiction in which failure to be so
qualified could result in a material adverse change to the financial
condition of Borrower;
(b) Payment of Liabilities, Including Taxes, Etc. Pay
all liabilities to which Borrower is subject or which are asserted
against Borrower when due except taxes which shall be paid prior to the
date or dates penalties attach and except liabilities being contested in
good faith by appropriate proceedings diligently conducted, provided
adequate reserves as required by generally accepted accounting
principles are maintained therefor;
(c) Compliance with Laws. Comply with all applicable
laws, including but not limited to all provisions of the Employees'
Retirement Income Security Act of 1974, as amended or supplemented from
time to time, and all laws relating to workers' safety, protection of
the environment, and human health, in all cases applicable to it;
(d) Properties. Maintain and keep all Borrower's
tangible property in good repair, working order and condition, and make
or cause to be made all necessary or appropriate repairs, renewals,
replacements, substitutions, additions, betterments and improvements
thereto so that the efficiency of all such property shall at all times
be properly preserved and maintained, and preserve and protect
Borrower's intangible property including but not limited to patents,
franchises, licenses, permits, trademarks, trade names and copyrights
used or useful in the conduct of its business;
(e) Maintenance of Insurance. Maintain adequate fire,
including so-called extended coverage, public liability and other
insurance, including insurance on the lives of key employees, as Bank
may require, in such forms, in such amounts, and written by such
companies as shall be satisfactory to Bank and deliver to it the
policies concerned naming Bank as additional insured and loss-payee
under such policies;
(f) Maintenance of Records; Reporting Requirements;
Visitation Rights. Maintain and keep correct books of record and
account in accordance with generally accepted accounting principles
consistently applied; and furnish to Bank within 120 days after the
close of each Borrower's fiscal year a balance sheet of each Borrower as
of the close of such year and related statements of income and cash flow
of each Borrower for such year, audited, by an independent certified
public accountant acceptable to Bank; and furnish to Bank within 30 days
of the close of each month a balance sheet of each Borrower and related
statements of income and cash flow for each Borrower for such period,
certified by the chief financial officer of each Borrower that he is
familiar with the books and records of each Borrower and that the same
are true and correct to the best of his knowledge and belief, and at any
time or from time to time, such other data, financial or otherwise, with
respect to Borrower or any guarantor of the Loan(s) as Bank may
reasonably request; and at all reasonable times permit a representative
of Bank to inspect Borrower's business properties and examine and make
extracts from Borrower's books and records;
(g) Maintenance of Executive Management. Maintain
executive management of Borrower satisfactory to Bank;
(h) Litigation and Environmental Responsibility. Within
10 days of Borrower's knowledge thereof, give notice in writing to Bank
of (i) the occurrence of any material litigation, arbitration or
governmental proceeding affecting Borrower, and of any governmental
investigation or labor dispute pending or, to the knowledge of Borrower,
threatened which could reasonably be expected to interfere with the
normal operations of the business of Borrower or could result in a
judgment against Borrower in an amount which is equal to or greater than
10% of the Commitment Amount or $50,000, whichever is lower, and
(ii) receipt by Borrower of any and all notices to the effect that
Borrower is or may be directly, indirectly, singly or together with
others a party actually or potentially responsible for remediation of
any environmental condition or for civil or criminal penalties resulting
from an alleged violation of any law pertaining to protection of human
health or safety or the environment;
(i) Notice of Event of Default. Within 10 days of
Borrower's knowledge thereof, give notice in writing to Bank of the
occurrence of any event of default and of any condition, event, act or
omission which, with the giving of notice or the lapse of time or both,
would constitute an event of default hereunder or under the Note, or
under any agreement or document securing, evidencing or relating to the
Note;
(j) Reimbursement for Expenses. Pay or reimburse Bank on
demand for all reasonable out-of-pocket expenses (including reasonable
legal fees) of every nature which (i) Bank may incur in connection with
this Loan Agreement and the making of the Loan(s) hereunder, and (ii)
arising out of or in connection with any action or proceeding (including
any action or proceeding arising in or related to any insolvency,
bankruptcy or reorganization involving or affecting Borrower) taken to
protect, enforce, determine, or assert any right or remedy under this
Loan Agreement, the Note, or any mortgage, security agreement, or other
document or instrument given in support hereof, including the collateral
covered thereby;
(k) Additional Compensation in Certain Circumstances. If
any law, guideline or interpretation of law subjects Bank to any tax or
changes the basis of taxation with respect to this Loan Agreement, the
Note, the Loan(s), or payments by Borrower in respect thereof, or
imposes, modifies or deems applicable any reserve, special deposit, or
similar requirement against credits or commitments to extend credit
extended by Bank, or imposes, modifies or deems applicable any capital
adequacy or similar requirement against credits or commitments to extend
credit by Bank, and the result of any of the foregoing is to increase
the cost to, or reduce the income receivable by, or impose expense
(including loss of margin) on, Bank with respect to this Loan Agreement,
the Note, or the making, maintenance or funding of any part of the
Loan(s) by an amount which Bank in its sole discretion deems to be
material, Bank may from time to time notify Borrower of the amount
determined in good faith to be necessary to compensate Bank for such
increase in cost, reduction of income or additional expense, and such
amount shall be due and payable by Borrower to Bank within 10 days after
notice; and
(l) Additional Affirmative Covenants. If Schedule 3(l)
is attached to this Loan Agreement, comply with the terms and conditions
of the covenants set forth on said schedule.
4. Negative Covenants. Until the Note and all other
liabilities whether now or hereafter existing of Borrower to Bank are
paid in full, Borrower will not:
(a) Indebtedness. Create, assume, or suffer to remain
outstanding any obligation for money borrowed other than to Bank except
(i) indebtedness subordinated to each and every obligation whether now
or hereafter existing to Bank pursuant to a subordination agreement or
agreements satisfactory to Bank, and (ii) indebtedness identified on
Schedule 4(a) if said schedule is attached to this Loan Agreement;
(b) Liens. Mortgage, pledge or otherwise encumber any of
Borrower's property, real or personal, now owned or hereafter acquired,
or permit any lien or security interest to exist thereon except liens
(i) for taxes not delinquent or being contested in good faith, (ii) of
mechanics or materialmen with respect to obligations not overdue or
being contested in good faith, (iii) resulting from deposits to secure
payments of workers' compensation or other social security obligations
or to secure the performance of bids or contracts in the ordinary course
of business, (iv) in favor of Bank, or (v) for the purposes identified
on Schedule 4(b) if said schedule is attached to this Loan Agreement;
(c) Loans or Advances; Guaranty of Obligation of Others.
Make any loans or advances to others, or endorse, guarantee or become
surety for the obligations of any person, firm or corporation, except
that Borrower may endorse checks or other instruments for deposit or
collection in the ordinary course of business;
(d) Leases. Make or enter into any agreement to rent or
lease real or personal property of any other person in an amount in
excess of $ N/A ;
(e) Capital Expenditures. Spend in any 12-month period,
for fixed assets used in or applicable to Borrower's business, an amount
not to exceed the annual depreciation expense;
(f) Sale and Lease-Back. Sell, convey, assign, or
otherwise transfer or dispose of any property, real or personal, whether
now owned or hereafter acquired, with a view directly or indirectly to
the leasing back of the same or of any similar property;
(g) Investments. Purchase, invest in, or otherwise
acquire any interest in or any equity or debt security of any person
except (i) debt securities issued by the United States Government or by
an agency or instrumentality thereof, (ii) negotiable certificates of
deposit issued by any bank organized under the laws of the United States
of America or any bank organized under the laws of any State thereof
whose deposits are insured by the Federal Deposit Insurance Corporation,
(iii) commercial paper issued by any corporation whose commercial paper
is rated not less than Prime-1 by Xxxxx'x or A-1 by Standard and Poor's,
and (iv) those interests in and equity or debt securities of those
persons set forth on Schedule 4(g) to this Loan Agreement if said
schedule is attached;
(h) Capital Distributions; Acquisition of Own Shares;
Other Distributions and Compensation. (i) If Borrower is a
corporation, declare or pay any dividends, or make any other
distributions on its capital stock, or redeem, purchase or otherwise
acquire any shares of its capital stock, or, if Borrower is a
partnership, make any distributions on any capital account of a partner,
or (ii) permit, make or authorize any payment directly or indirectly to
any director, executive officer, partner, shareholder or individual
owner of Borrower other than IRS Form W-2 compensation which is paid in
the same manner and up to the same amount as paid in the fiscal year
immediately preceding the date hereof payable to any such person plus an
annual increase not to exceed% per year;
(i) Transactions Outside the Ordinary Course of Business.
Sell, transfer or assign any of Borrower's assets, including but not
limited to any accounts receivable, or acquire any assets, except in the
ordinary course of business, or, if a corporation or partnership, enter
into any merger or consolidation with any other entity, or alter or
amend Borrower's Articles of Incorporation or Partnership Agreement, as
the case may be;
(j) Transactions with Affiliate. Enter into any
transactions, including, without limitation, the purchase, sale,
leasing, or exchange of property, real or personal, with or render any
service to any person, firm or corporation affiliated with Borrower,
other than as set forth on Schedule 4(j) to this Loan Agreement if said
schedule is attached;
(k) Modifications of Other Agreements. Amend or modify
any existing agreement with any person, firm or corporation in any
manner materially adverse to Borrower; or
(l) Additional Negative Covenants. If Schedule 4(l) is
attached to this Loan Agreement, violate any of the terms and conditions
of the covenants set forth on said schedule.
5. Events of Default and Consequences Thereof. Borrower
shall be in default under this Loan Agreement upon the happening of any
of the following events of default:
(a) a default in the payment when due or performance of
any obligation, covenant or liability contained or referred to herein,
or in the Note or any security agreement or real estate mortgage
securing the same, or in any other document executed in connection with
or given in support of the Loan(s);
(b) any warranty, representation or statement made or
furnished to Bank by or on behalf of Borrower proves to have been false
or misleading in any material respect when made or furnished;
(c) any letter of credit pledged as collateral for the
Loan(s) is not renewed or extended 30 days prior to expiration or
termination thereof;
(d) the occurrence of any event which constitutes a
default under or results in the acceleration of indebtedness of Borrower
to any person (including Bank) under any note, indenture, agreement or
undertaking;
(e) if Borrower is a corporation or partnership, any
material change in the ownership of the outstanding capital stock or
partnership interests of Borrower, as the case may be, as the same
existed on the date hereof;
(f) any change in the condition, financial or otherwise,
of Borrower which, in the reasonable opinion of Bank, has or could have
a material adverse effect on Borrower, on the assets of Borrower, or on
the validity or enforceability of this Loan Agreement, the Note, or any
other document executed in connection with or given in support of the
Loan(s);
(g) the death, incarceration or adjudication of legal
incompetence of any person who is a Borrower or any person liable to
Bank for any of the obligations of Borrower;
(h) a judgment is entered against Borrower or any person
liable to Bank for any of the obligations of Borrower, or any of
Borrower's assets are attached in a legal proceeding; or
(i) the dissolution, termination of existence,
insolvency, business failure, appointment of a receiver of any part of
the property of, assignment for the benefit of creditors by, or the
commencement of proceedings under any bankruptcy or insolvency laws by
or against, Borrower or any person liable to Bank for any of the
obligations of Borrower.
Upon the occurrence of any of the events of default mentioned
in clauses (a) through (g) hereof and at any time thereafter, Bank may
declare all liabilities and obligations of Borrower to Bank, including
those evidenced by the Note, immediately due and payable, and the same
shall thereupon become immediately due and payable without any further
action on the part of Bank, and upon the occurrence of any event of
default mentioned in clauses (h) or (i) hereof, all liabilities and
obligations of Borrower to Bank, including those evidenced by the Note,
shall immediately become due and payable without any action upon the
part of Bank.
6. Set-off. In addition to all other rights and remedies
available to Bank, Bank shall have a continuing lien on, is hereby
granted a security interest in, and has a right of set-off against, all
property of Borrower and the proceeds thereof held or received by or for
Bank or any Bank Affiliate for any purpose, whether or not for the
express purpose of serving as collateral security for the Loan(s). As
used in this Loan Agreement, the term "Bank Affiliate" includes any
individual, partnership, or corporation acting as nominee or agent for
Bank, and any corporation or bank which is directly or indirectly owned
or controlled by, or under common control with, Bank. Borrower
acknowledges that any moneys held by Bank Affiliates are being held by
such Bank Affiliates as agent for Bank for purposes of perfecting the
security interest set forth above.
7. Accounting Terms. All accounting terms used herein have
the meaning generally ascribed to them by accountants under the rules of
generally accepted accounting principles.
8. Headings. The headings used in this Loan Agreement are
for reference purposes only and shall not be deemed a part of this Loan
Agreement.
9. Binding Nature. "Borrower" refers individually and
collectively to all signers of this Loan Agreement, including, in the
case of any partnership, all general partners of such partnership
individually and collectively, whether or not such partners sign below.
Each of the signers shall be jointly and severally bound by the terms
hereof, and, with respect to any partnership executing this Loan
Agreement, each general partner shall be bound hereby both in such
general partner's individual and partnership capacities. The pronoun
"it" shall, in the case of individual Borrower(s), be deemed to mean
"he," "she," "them," or "they," as appropriate.
10. Successors and Assigns. This Loan Agreement shall be
binding upon Borrower and the heirs, personal representatives,
successors and assigns of Borrower and shall inure to the benefit of
Bank, its successors and assigns.
11. Entire Agreement; Amendments. This Loan Agreement
constitutes the entire contract between Bank and Borrower and supersedes
all prior communications, oral and written, as well as all
contemporaneous oral communications between the parties with respect
hereto. No amendment to or modification of this Loan Agreement shall be
effective unless set forth in writing and signed by each of the parties
to this agreement.
12. Severability. If any one or more of the provisions of
this Loan Agreement should for any reason be invalid, illegal or
unenforceable in any respect, the validity, legality, or enforceability
of the remaining provisions contained herein shall not in any way be
affected or impaired thereby, and such invalid, illegal or unenforceable
provision shall be deemed modified to the extent necessary to render it
valid while most nearly preserving its original intent.
13. Waiver; Survival of Agreement. No waiver hereunder or
with respect to the Note or other documents delivered in connection
herewith shall be effective unless in writing. No delay in exercising
any right shall operate as a waiver thereof. A waiver on any one
occasion shall not be a waiver of any right or remedy on any future
occasion. This Loan Agreement shall survive execution of the Note and
any other documents executed in connection with the Loan(s) and will
terminate when all liabilities whether now or hereafter existing of
Borrower to Bank have been paid in full.
14. Notices. All notices and other communications given or
made upon any party hereto in connection with this Loan Agreement, the
Note, or any other document executed in connection herewith or therewith
shall be in writing and either hand-delivered or mailed first-class or
first-class express mail, in all cases with charges prepaid, to Borrower
and Bank at the addresses set forth on the first page of this Loan
Agreement or at such other address as shall be designated in the latest
written notice given by such party in accordance with the provisions of
this section. Notices may also be given by telecopy, telefax or telex
at such number as shall be designated in the last written notice given
by Bank or Borrower in accordance with this provision.
15. Counterparts. This Loan Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original
but all of which together shall constitute one and the same instrument.
16. Arbitration. BORROWER AND BANK AGREE THAT ANY ACTION,
DISPUTE, PROCEEDING, CLAIM, OR CONTROVERSY BETWEEN BORROWER AND BANK,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE ("DISPUTE" OR
"DISPUTES"), SHALL, AT BANK'S ELECTION, WHICH ELECTION MAY BE MADE AT
ANY TIME PRIOR TO THE COMMENCEMENT OF A JUDICIAL PROCEEDING BY BANK, OR
IN THE EVENT OF A JUDICIAL PROCEEDING INSTITUTED BY BORROWER AT ANY TIME
PRIOR TO THE LAST DAY TO ANSWER AND/OR RESPOND TO A SUMMONS AND/OR
COMPLAINT MADE BY BORROWER, BE RESOLVED BY ARBITRATION IN ACCORDANCE
WITH THE PROVISIONS OF THIS PARAGRAPH AND SHALL, AT THE ELECTION OF
BANK, INCLUDE ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH (i) THIS
LOAN AGREEMENT OR ANY RELATED AGREEMENTS OR INSTRUMENTS; (ii) ALL PAST,
PRESENT, AND FUTURE AGREEMENTS INVOLVING BORROWER AND BANK; (iii) ANY
TRANSACTION RELATED TO THIS LOAN AGREEMENT AND ALL PAST AND FUTURE
TRANSACTIONS INVOLVING BORROWER AND BANK; AND (iv) ANY ASPECT OF THE
PAST, PRESENT, OR FUTURE RELATIONSHIP OF BORROWER AND BANK. BORROWER
AND BANK INTEND TO ARBITRATE, RATHER THAN LITIGATE, THEIR DIFFERENCES IN
ACCORDANCE WITH THE PROCEDURE SET FORTH ABOVE AND TO BE LEGALLY BOUND BY
THE ARBITRATION DECISION.
17. Governing Law. This Loan Agreement, the Note, and any
other documents delivered in connection herewith and the rights and
obligations of the parties hereto and thereto shall for all purposes be
governed by and construed and enforced in accordance with the
substantive law of the Commonwealth of Pennsylvania without giving
effect to conflict of laws principles, except that perfection and the
effect of perfection of the Bank's security interest in collateral shall
be governed by the laws of the jurisdiction in which the security
interest is required to be perfected.
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound, have executed this Loan Agreement on the day and year
first above written with the intention that this Loan Agreement shall
constitute a sealed instrument.
ATTEST: Control Chief Holdings, Inc.
/S/Xxxxxxxxxxx X. Xxxxxx By/S/Xxxxxxx X. Xxxx
Xxxxxxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Secretary Title: President
(Seal)
By/S/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
ATTEST: Control Chief Corporation
/S/Xxxxx X. Comes By/S/Xxxxxx X. Xxxxxxxxx
Xxxxx X. Comes Name: Xxxxxx X. Xxxxxxxxx
Secretary Title: President
(Seal)
By/S/Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
INTEGRA BANK/NORTH
By______________________________
N. Xxxxx Xxxxx
Vice President Commercial Lending
Attachment(s): Schedule 3(l): Additional Affirmative Covenants
Schedule 4(l): Additional Negative Covenants
Schedule 4(l)
Additional
Negative
Covenants
This Schedule 4(l) relates to that certain Loan
Agreement dated as of May 24, 1995 by and between Control Chief Holdings,
Inc. and Control Chief Corporation and INTEGRA BANK/NORTH.
Additional investment. No additional investment in or
indebtedness with subsidiaries without the written consent of the
bank is permitted.
ATTEST: Control Chief Holdings, Inc.
/S/Xxxxxxxxxxx X. Xxxxxx /S/Xxxxxxx X. Xxxx
Xxxxxxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Secretary Title: President
(Seal) /S/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
ATTEST: Control Chief Corporation
/S/Xxxxx X. Comes /S/Xxxxxx X. Xxxxxxxxx
Xxxxx X. Comes Name: Xxxxxx X. Xxxxxxxxx
Secretary Title: President
(Seal) /S/Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
Schedule 3(l)
Additional
Affirmative
Covenants
This Schedule 3(l) relates to that certain Loan Agreement
dated as of May 24, 1995 by and between Control Chief Holdings, Inc.
and Control Chief Corporation and INTEGRA BANK/NORTH.
Debt to worth ratio. Debt to worth ratio will not exceed 1.5:1
Debt service coverage ratio. Debt service coverage ratio will
not exceed 1.0
ATTEST: Control Chief Holdings, Inc.
/S/Xxxxxxxxxxx X. Xxxxxx /S/Xxxxxxx X. Xxxx
Xxxxxxxxxxx X. Xxxxxx Name:Xxxxxxx X. Xxxx
Secretary Title:President
(Seal) /S/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
ATTEST: Control Chief Corporation
/S/Xxxxx X. Comes /S/Xxxxxx X. Xxxxxxxxx
Xxxxx X. Comes Name: Xxxxxx X. Xxxxxxxxx
Secretary Title: President
(Seal) /S/Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
REVOLVING CREDIT NOTE
$750,000.00 Bradford, Pennsylvania
May 24, 1995
FOR VALUE RECEIVED and intending to be legally bound hereby,
undersigned Control Chief Holdings, Inc. and Control Chief Corporation
("Makers"), Pennsylvania corporations, having a principal office at X X Xxx
000, Xxxxxxxx, Xxxxxxxxxxxx 00000, promises to pay to the order of INTEGRA
BANK/NORTH ("Bank") on October 31, 1995 ("Maturity Date") in immediately
available funds at the Bradford office of Bank at 00 Xxxx Xxxxxx, X.X. Xxx
000, Xxxxxxxx, XX 00000 or at such other location as the holder hereof may
from time to time designate, the lesser of (i) the principal sum of seven
hundred fifty thousand and 00/100 Dollars ($750,000.00), or (ii) the
aggregate unpaid principal amount of all loans made by Bank to Maker pursuant
to Section 1 of the loan agreement dated May 24, 1995, between Bank and Maker
("Loan Agreement"), together with interest from the date hereof on the unpaid
principal balance hereof
at a rate per annum (computed on the basis of a year of 360 days and
actual days elapsed) which shall at all times be one half of one percent
(0.5%) above the Prime Rate, as hereinafter defined, such interest rate to
change automatically from time to time effective as of the effective date of
each change in the Prime Rate, payable on the last day of each calendar month
after the date hereof. "Prime Rate" as that term is used herein means the
interest rate per annum announced from time to time by Bank at its principal
office in Titusville, Pennsylvania as its then prime rate, which may not be
the lowest rate of interest charged by Bank to other borrowers. If any
amount of principal due under this Note or otherwise is not paid by Maker
when due, whether at a stated payment date, at the stated maturity of this
Note, by acceleration, on demand, or otherwise, such amount shall bear
interest until paid at a rate per annum which is four percent (4%) above the
rate of interest applicable to this Note immediately prior to maturity. If
any payment due under this Note (whether at the stated payment date, at the
stated maturity date, by acceleration, on demand, or otherwise) is more than
fifteen (15) days late, Maker shall pay Bank a late charge equal to five
percent (5%) of such late payment. The foregoing late payment fees and
default rate of interest shall be immediately due and payable without demand
or notice by Bank.
The aforesaid interest rates shall continue to apply whether or not judgment
shall have been entered on this Note.
If any payment of the principal of or interest on this Note
shall become due and payable on a Saturday, a Sunday, or any other day on
which Bank is not open for business, such payment shall be made on the next
succeeding business day, and such extension of time shall in such case be
included in computing interest in connection with such payment.
Notwithstanding any provision of this Note to the contrary, it
is the intent of Maker and Bank that Bank shall not at any time be entitled
to receive, collect or apply, and Maker and Bank shall not be deemed to have
contracted for, as interest on the principal indebtedness evidenced hereby,
any amount in excess of the maximum rate of interest permitted to be charged
by applicable law, and in the event Bank ever receives, collects or applies
as interest any such excess, such excess shall be deemed partial payment of
the principal indebtedness evidenced hereby, and if such principal shall be
paid in full, any such excess shall forthwith be paid to Maker. In the event
that, but for this paragraph, the rate of interest applicable to this Note
would at any time exceed the maximum lawful rate, then this Note and all
interest hereon shall thereupon be immediately due and payable.
All revolving credit loans made by Bank to Maker pursuant to the
Loan Agreement and all payments and prepayments on account of the principal
and interest thereof shall be noted by Bank in its records; provided,
however, that the failure of Bank to make any such notation shall not limit
or otherwise affect the obligations of Maker hereunder.
This Note is the Note referred to in and issued pursuant to the
Loan Agreement. The Loan Agreement contains among other things provisions
for the acceleration of the stated maturity of this Note upon the happening
of certain events recited therein and also for prepayments on account of the
principal hereof prior to maturity.
This Note is secured by the
collateral identified in that certain Security Agreement executed by Control
Chief Holdings, Inc. and Control Chief Corporation in favor of Bank dated May
24, 1995.
Maker hereby waives presentment, demand, protest or notice of
any kind in connection with this Note.
This Note shall bind Maker and the heirs, personal
representatives, successors and assigns of Maker, and the benefits hereof
shall inure to the benefit of Bank and its successors and assigns. All
references herein to "Maker" shall be deemed to apply to Maker and to the
heirs, personal representatives, successors and assigns of Maker, and all
references herein to "Bank" shall be deemed to apply to Bank and its
successors and assigns.
MAKER DOES HEREBY EMPOWER THE PROTHONOTARY OR ANY ATTORNEY OF
ANY COURT OF RECORD WITHIN THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR FOR
MAKER AND, WITH OR WITHOUT ONE OR MORE COMPLAINTS FILED, CONFESS JUDGMENT OR
JUDGMENTS AGAINST MAKER IN ANY COURT OF RECORD WITHIN THE COMMONWEALTH OF
PENNSYLVANIA AT ANY TIME AFTER THE DATE OF THIS NOTE AND WHETHER OR NOT THIS
NOTE IS THEN DUE OR IN DEFAULT, IN FAVOR OF BANK, ITS SUCCESSORS AND ASSIGNS,
FOR THE UNPAID PRINCIPAL BALANCE OF THIS NOTE AND ALL INTEREST ACCRUED
HEREON, TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S COMMISSION OF 10%, BUT
IN NO EVENT LESS THAN $500.00, FOR COLLECTION OF SUCH SUMS, AND MAKER HEREBY
FOREVER WAIVES AND RELEASES ANY AND ALL ERRORS IN SAID PROCEEDINGS AND WAIVES
STAY OF EXECUTION AND STAY, CONTINUANCE OR ADJOURNMENT OF SALE ON EXECUTION.
THE AUTHORITY AND POWER TO APPEAR FOR AND ENTER JUDGMENT AGAINST MAKER SHALL
NOT BE EXHAUSTED BY ONE OR MORE EXERCISES THEREOF AND MAY BE EXERCISED FROM
TIME TO TIME AND AS OFTEN AS BANK OR ITS SUCCESSORS AND ASSIGNS SHALL DEEM
NECESSARY OR DESIRABLE.
IN WITNESS WHEREOF, Maker, intending to be legally bound, has
executed this Note on the day and year first above written with the intention
that this Note shall constitute a sealed instrument.
ATTEST: Control Chief Holdings, Inc.
/S/Xxxxxxxxxxx X. Xxxxxx By/S/Xxxxxxx X. Xxxx
Xxxxxxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Secretary Title: President
By/S/Xxxxxx X. Xxxxxxxxx
(Seal) Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
ATTEST: Control Chief Corporation
/S/Xxxxx X. Comes By/S/Xxxxxx X. Xxxxxxxxx
Xxxxx X. Comes Name:Xxxxxx X. Xxxxxxxxx
Secretary Title:President
By/S/Xxxxxxx X. Xxxx
(Seal) Name: Xxxxxxx X. Xxxx
Title: Vice President
"Business Loans," for purposes of the Act, shall mean
extensions of credit where the funds are to be utilized in a business
enterprise and where (1) the borrower(s) exercises actual control over the
managerial decisions of the enterprise in which the funds are to be
utilized, and (2) the borrower(s) signs an affidavit under penalty of
perjury setting forth the intended use of proceeds.
AFFIDAVIT OF BUSINESS LOAN
COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF XxXxxx )
Xxxxxxx X. Xxxx and Xxxxxx X. Xxxxxxxxx, being duly sworn
according to law, deposes and says that he (she) (they) is (are) the
Vice President and President respectively, of Control Chief Holdings,
Inc. ("Business"), that he (she) (they) exercise actual control over the
managerial decisions of the Business and is authorized to make this
affidavit on its behalf, and that the loan or extension of credit from
INTEGRA BANK/NORTH evidenced by an instrument dated May 24, 1995 is to be
used solely in connection with the Business and for the business purpose of
working capital.
We hereby verify that the facts contained herein are true
and correct to the best of our knowledge, information and belief. We
understand that false statements herein are made subject to the penalties
of perjury under 18 Pa. C.S.A. Section 4904.
ATTEST: Control Chief Holdings, Inc.
/S/Xxxxxxxxxxx X. Xxxxxx By/S/Xxxxxxx X. Xxxx
Xxxxxxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Secretary Title: President
(SEAL)
By/S/Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
Sworn to and subscribed before me this 1st
day of June, 1995.
By/S/Xxxxx X. Xxxxxxx
Notary Public
My Commission Expires:August 3, 1998
(To be executed by each person executing the Note.)
CERTIFICATE OF CORPORATE AUTHORIZATION
TO BORROW FROM BANK
I, Xxxxx X. Comes, hereby certify that I am the Secretary of
Control Chief Corporation ("Corporation"), a Pennsylvania corporation, and
that the resolutions set forth below were adopted by the Board of Directors
of the Corporation in accordance with the bylaws of the Corporation on May
24, 1995. Such resolutions have been, or will promptly be, entered into
the minute book of the Corporation and (i) have not been amended, modified,
or rescinded and remain in full force and effect on the date hereof, and
(ii) are not in contravention of or in conflict with the bylaws, articles
of incorporation, or charter of the Corporation.
RESOLVED that this Corporation borrow such money and
obtain such credit from INTEGRA BANK/NORTH ("Bank"), from time to
time or at any time hereafter, for such periods, including
amendments, modifications, extensions and renewals, upon such
terms, and with such security as the President, Vice President,
Secretary or Treasurer of this Corporation, or their successors
in office, or any two (2) of them may deem advisable; and that
said officer(s) is (are) hereby authorized and empowered on
behalf of this Corporation and in its name to make, execute and
deliver any and all instruments necessary or desired by Bank to
effect the same, including, without limiting the generality of
the foregoing, notes, drafts, acceptances, assignments or other
evidences of indebtedness, all in such form as may be requested
by Bank and containing one or more warrants of attorney to
confess judgment against the Corporation if required by Bank, and
as security for any such borrowing or credit to mortgage, pledge
and assign, convey or transfer by way of mortgage, pledge,
security agreement, or otherwise, real property, stocks, bonds,
notes, debentures, bills of lading, warehouse receipts, accounts
receivable, amounts due or to become due on open accounts or
contracts, insurance policies, inventory, machinery, equipment,
chattel paper, or any other property, tangible or intangible, of
this Corporation, and to execute any and all instruments
necessary or desired by Bank to effect the same or incidental
thereto, including, without limiting the generality of the
foregoing, security agreements, financing statements,
assignments, transfers, conveyances, mortgages of real and/or
personal property, trust receipts, factors lien contracts or
agreements, powers of attorney, and any other instruments, and
also to execute or have executed guaranties in connection
therewith and to discount bills receivable and negotiable
instruments, with power to endorse the same in the name of this
Corporation, and generally to execute any instrument or do any
other act required, necessary or deemed advisable in connection
with such credit borrowing or security; and that all past acts of
officer(s) of this Corporation in borrowing or obtaining credit
from Bank and in executing instruments and giving security on
behalf of this Corporation are hereby ratified and confirmed.
RESOLVED FURTHER that Bank be and hereby is authorized
and directed, without limitation or inquiry, irrespective of the
circumstances, to honor and carry out all orders, directions or
instructions of said officers as to the disposition of all
amounts borrowed or credit obtained on behalf of this Corporation
hereunder, and Bank shall be under no obligation or liability for
the use or disposition of any amounts borrowed or credit
obtained, even though used for the benefit of or deposited to the
credit of any of said officers.
RESOLVED FURTHER that the Secretary and/or any Assistant
Secretary is (are) authorized to certify to Bank the person(s)
now holding said office(s) and any changes hereafter in the
person(s) holding said office(s), together with specimen(s) of
the signature(s) of such present and future officer(s), and this
Corporation shall fully protect, indemnify, and save harmless
Bank from any claim, loss, cost, damage, or expense arising out
of its acting on such certification.
Undersigned further certifies that the following were duly
elected to and now hold the offices of the Corporation set opposite their
respective signatures.
(PLEASE SUPPLY GENUINE SIGNATURES BELOW.)
Title Typed Name
Signature
Chairman Xxxxxxx X. Xxxx /S/Xxxxxxx X. Xxxx
President Xxxxxx X. Xxxxxxxxx /S/Xxxxxx X. Xxxxxxxxx
Vice President Xxxxxxx X. Xxxx /S/Xxxxxxx X. Xxxx
Vice President Xxxxxx X. Xxxxxxxx /S/Xxxxxx X. Xxxxxxxx
Secretary Xxxxx X. Comes /S/Xxxxx X. Comes
Treasurer Xxxxxx X. Xxxxxxxxx /S/Xxxxxx X. Xxxxxxxxx
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the official seal of the Corporation this 24th day of May, 1995.
(SEAL)
/S/Xxxxx X. Comes
Xxxxx X. Comes, Secretary
CERTIFICATION
I hereby certify that I am a director of the Corporation, that
the foregoing is a correct copy of resolutions passed as therein set forth,
and that the same are now in full force.
/S/Xxxxxxx X. Xxxx
[To be signed by a director other than the Secretary]
"Business Loans," for purposes of the Act, shall mean
extensions of credit where the funds are to be utilized in a business
enterprise and where (1) the borrower(s) exercises actual control over the
managerial decisions of the enterprise in which the funds are to be
utilized, and (2) the borrower(s) signs an affidavit under penalty of
perjury setting forth the intended use of proceeds.
AFFIDAVIT OF BUSINESS LOAN
COMMONWEALTH OF PENNSYLVANIA )
) SS:
COUNTY OF XxXxxx )
Xxxxxxx X. Xxxx and Xxxxxx X. Xxxxxxxxx, being duly
sworn according to law, deposes and says that he (she) (they) is (are) the
Vice President and President respectively, of Control Chief
Corporation ("Business"), that he (she) (they) exercise actual control over
the managerial decisions of the Business and is authorized to make this
affidavit on its behalf, and that the loan or extension of credit from
INTEGRA BANK/NORTH evidenced by an instrument dated May 24, 1995 is to be
used solely in connection with the Business and for the business purpose of
working capital.
We hereby verify that the facts contained herein are true and
correct to the best of our knowledge, information and belief. We
understand that false statements herein are made subject to the penalties
of perjury under 18 Pa. C.S.A. Section 4904.
ATTEST: Control Chief Corporation
/S/Xxxxx X. Comes By/S/Xxxxxxx X. Xxxx
Xxxxx X. Comes Name: Xxxxxxx X. Xxxx
Secretary Title: Vice President
(SEAL)
By/S/Xxxxxx X. Xxxxxxxxx
Name:Xxxxxx X. Xxxxxxxxx
Title:President
Sworn to and subscribed before me this 1st day
of June, 1995.
/S/Xxxxx X. Xxxxxxx
Notary Public
My Commission Expires: August 3, 1998
(To be executed by each person executing the Note.)
EXHIBIT A
UCC-1 FINANCING STATEMENT
Debtor: Control Chief Holdings, Inc.
Control Chief Corporation
Secured Party: INTEGRA BANK/NORTH
THIS FINANCING STATEMENT COVERS THE FOLLOWING TYPES OF PROPERTY:
All of the Debtor's:
(1) accounts, general intangibles, contract rights, chattel paper,
documents, instruments, letters of credit, and advices of credit (each of the
foregoing as defined in the Uniform Commercial Code) now in existence and
those that shall hereafter arise, and all guarantees and security therefor;
(2) inventory and equipment (each of the foregoing as defined in
the Uniform Commercial Code) which it now owns and that which it hereafter
acquires, whether subsequently acquired by way of substitution, replacement,
return, repossession or otherwise;
(3) fixtures (as defined in the Uniform Commercial Code) and each
and every item of personal property, which it now owns and that which it
hereafter acquires, whether subsequently acquired by way of substitution,
replacement, return, repossession or otherwise;
(4) ledger receipts, books, records and documents concerning any
of the items specified in (1), (2) and (3) above, including all computer
records, programs, storage media and computer software used or required in
connection with generating, processing and storing such records or otherwise
used or acquired in connection with documenting information concerning the
items of collateral set forth in Subsections (1), (2) and (3) above, both
that which the Debtor now owns and that which it acquires hereafter;
(5) the proceeds of the items of collateral listed in Subsection
(1) through (4) above, and with respect to said items, all products thereof
and all additions and accessions to, replacements of, insurance proceeds of
and documents covering such items; all property received wholly or partly in
trade or exchange for such items, and all rents, revenues, issues, profits
and proceeds arising from the sale, lease, license, encumbrance, collection
or any other temporary or permanent disposition of such items or any interest
therein, whether or not they constitute "proceeds" as defined in the Uniform
Commercial Code.
SECURITY AGREEMENT
FOR VALUE RECEIVED, undersigned, Control Chief Holdings, Inc.
and Control Chief Corporation ("Debtors"), Pennsylvania corporations,
hereby assigns and pledges to INTEGRA BANK/NORTH ("Secured Party"), a
Pennsylvania banking institution, its successors and assigns, and grants to
it, its successors and assigns, a security interest prior to all other
liens in:
(a) the following described property (capitalized terms used
herein have the meaning given to them by the Pennsylvania Uniform
Commercial Code):
(i) all General Intangibles of Debtor,
both General Intangibles now in existence and
those that shall hereafter arise;
(ii) all Accounts of Debtor, including
both Accounts now in existence and those that
shall hereafter arise;
(iii) all Inventory of Debtor, including
Inventory which Debtor now owns and that which
Debtor shall hereafter acquire;
(iv) all Chattel Paper of Debtor,
including both Chattel Paper which Debtor now
owns and that which Debtor shall hereafter
acquire;
(v) all Equipment of Debtor, including
Equipment which Debtor now owns and that which
Debtor shall hereafter acquire;
(vi) all Goods of Debtor which become
Fixtures, including Goods which Debtor now owns
and those which Debtor shall hereafter acquire;
(vii) all that collateral granted in and described in
the Security
Agreement dated January 7, 1994 between Integra Bank/North
and
Control Chief Corporation and Control Chief Holdings, Inc.
(b) all property received wholly or partly in trade or
exchange for property mentioned in clause (a) above, and all rents,
revenues, issues, profits and proceeds arising from the sale, lease,
license, encumbrance, collection, or any other temporary or permanent
disposition of such property or any interest therein, whether or not they
constitute Proceeds as defined in the Pennsylvania Uniform Commercial Code;
and
(c) all ledger receipts, books, records, and documents
concerning any of the items specified in clauses (a) and (b) above,
including all computer records, programs, storage media, and computer
software used or required in connection with generating, processing, and
storing such records or otherwise used or acquired in connection with
documenting information concerning the items of collateral set forth in
clauses (a) and (b) above, both that which Debtor now owns and that which
Debtor acquires hereafter;
all of the aforesaid property in which Secured Party is granted a security
interest hereunder being hereinafter called the "Collateral."
This Security Agreement and the Collateral secure the payment
of the principal of and interest on each and every loan of Secured Party to
Debtor and each and every other liability of Debtor to Secured Party,
including each and every loan and other liability now in existence, those
incurred or arising contemporaneously herewith, and those that shall
hereafter be incurred or arise (collectively, "Secured Debt").
Debtor hereby covenants and agrees with Secured Party as
follows:
1. Debtor shall maintain in good condition and repair and
shall protect and preserve the Collateral and, if any part thereof is
Inventory, Equipment, Goods which have become Fixtures, or Farm Products,
shall insure such part against all risks to which such part may be exposed,
including, without limitation, fire, flood, theft and collision, in such
amounts as Secured Party may require, and any loss shall be payable to
Secured Party as its interest may appear. Debtor warrants that Debtor has
and will continue to have good and marketable title to the Collateral, free
and clear of all liens, encumbrances and security interests, except that
created hereby and other security interests of Secured Party therein, and
agrees to preserve such unencumbered title and Secured Party's security
interest in the Collateral and to defend it against all parties. Risk of
loss of, damage to, or destruction of the Collateral shall be the
responsibility of Debtor, although Secured Party shall exercise reasonable
care in the custody and preservation of the Collateral in its possession.
Secured Party shall be deemed to have exercised such reasonable care if it
takes such action for that purpose as Debtor shall reasonably request in
writing, but no omission to do any act not requested by Debtor shall be
deemed a failure to exercise reasonable care, and no omission to comply
with any request of Debtor shall of itself be deemed a failure to exercise
reasonable care. Debtor shall execute and deliver to Secured Party any
financing statements, continuation statements, assignments, or other
instruments, or take any other action deemed necessary by Secured Party to
perfect or continue the perfection of its security interest in the
Collateral. Secured Party is hereby irrevocably appointed an attorney-in-
fact of Debtor to do all acts and things which Secured Party may deem
necessary or advisable to perfect and continue perfected its security
interest in the Collateral. Debtor shall maintain Debtor's chief executive
office and all of Debtor's other offices, plants and places of business in
the State of Pennsylvania. Debtor shall keep all Debtor's Inventory,
Equipment, Chattel Paper, Goods which have become Fixtures, Farm Products,
and other property, except that in possession of Secured Party, and books
and records in such offices, plants and places of business. The address of
the chief executive office of Debtor is listed below Debtor's signature
hereto, as are the addresses of any other offices, plants and places of
business maintained by Debtor, each such office, plant and place of
business being located in the county set opposite such address. Debtor
shall give written notice to Secured Party at least thirty (30) days in
advance of any changes in such addresses, the establishment of any
additional office, plant or place of business, and any proposed change in
Debtor's name.
2. If the Collateral or any part thereof is or shall be a
motor vehicle for which a certificate of title may or must be issued under
the laws of the state in which such motor vehicle is registered, Debtor
shall deliver to Secured Party, promptly after such certificate of title is
issued to Debtor, the said certificate of title appropriately executed by
Debtor, so that Secured Party may cause the statement of Secured Party's
security interest to be noted as a lien or encumbrance on the said
certificate of title by the appropriate authorities responsible for motor
vehicle registration.
3. At any time and from time to time, whether any of the
Secured Debt shall be then due and payable, Secured Party, at its option
and at the expense of Debtor, may (1) transfer into its own name, or into
the name of its nominee, all or any part of the Collateral, thereafter
receiving all dividends, income or other distributions upon the Collateral;
(2) notify the obligor on any of the Collateral, whether Accounts or
otherwise, to make payment thereon directly to Secured Party, whether or
not Debtor was theretofore making collections thereon; (3) inspect the
books and records of Debtor and make extracts therefrom; (4) take control
of and manage all or any of the Collateral; (5) apply to the payment of any
of the Secured Debt, whether or not the same shall be then due and payable,
any moneys, including cash dividends and income from any Collateral, now or
hereafter in the hands of Secured Party, on deposit or otherwise, belonging
to Debtor, as Secured Party in its sole discretion shall determine; (6) do
anything which Debtor is required but fails to do hereunder, and in
particular Secured Party may, if Debtor fails to do so, (a) insure or take
any reasonable steps to protect the Collateral, (b) pay all taxes, levies,
expenses and costs arising with respect to the Collateral, or (c) pay any
premiums payable on any policy of insurance required to be obtained or
maintained hereunder, and add any amounts paid under this Section 3 to the
principal amount of the Secured Debt; (7) direct any insurer to make
payment of any insurance proceeds, including any returned or unearned
premiums, directly to Secured Party, and apply such moneys to any of the
Secured Debt in such order or fashion as Secured Party may elect; (8)
inspect the Collateral at any reasonable time; (9) pay any amounts Secured
Party elects to pay or advance hereunder on account of insurance, taxes or
other costs, fees or charges arising in connection with the Collateral,
either directly to the payee(s) of such cost, fee or charge, directly to
Debtor, or to such payee(s) and Debtor jointly. Notwithstanding the rights
of Secured Party set forth under this Section 3, no obligation to perform
any of the foregoing actions or to exercise any of the foregoing rights
shall be required by Secured Party, and Secured Party's failure to so act
or to so exercise shall not result in any liability on the part of Secured
Party.
4. This Security Agreement has been entered into under and
pursuant to the Pennsylvania Uniform Commercial Code, except that
perfection and the effect of perfection of Secured Party's security
interest in collateral in another jurisdiction will be governed by the
Uniform Commercial Code ("UCC") of such other jurisdiction, and Secured
Party has all the rights and remedies of a secured party under the Uniform
Commercial Code of the applicable jurisdiction. If any one or more of the
provisions hereof should for any reason be invalid, illegal or
unenforceable in any respect, the remaining provisions contained herein
shall not in any way be affected or impaired thereby, and such invalid,
illegal, or unenforceable provision shall be deemed modified to the extent
necessary to render it valid while most nearly preserving its original
intent.
5. Any delay or omission by Secured Party to exercise any
rights or powers arising from any default or any partial exercise thereof
shall not impair any such rights or powers, nor shall the same be construed
to be a waiver thereof or any acquiescence therein, nor shall any action or
non-action by Secured Party in the event of any default alter or impair the
rights of Secured Party in respect of any subsequent default, or impair or
affect any rights or powers resulting therefrom. This Security Agreement
shall remain in full force and effect until such time as all Secured Debt
has been paid in full.
6. (a) In case of any default hereunder with respect to any
of the Secured Debt or in case any of the Secured Debt matures, whether by
declaration, acceleration or otherwise, and remains unpaid, then Secured
Party shall have the full power and authority to proceed to exercise any
one or more of the rights accorded to it by the UCC of the applicable
jurisdiction or otherwise accorded to it by law, including the right to
require Debtor to assemble any of the Collateral and make it available to
Secured Party at a place designated by Secured Party and reasonably
convenient to both parties. The proceeds of any collection, sale or other
disposition of the Collateral or any part thereof shall, after Secured
Party has made all deductions of reasonable expenses, including but not
limited to reasonable attorneys' fees and other expenses incurred in
connection with repossession, collection, sale, or disposition of the
Collateral or in connection with the enforcement of Secured Party's rights
with respect to the Collateral in any insolvency, bankruptcy or
reorganization proceedings, be applied against any of the Secured Debt,
whether or not all the same shall be then due and payable, in such manner
as Secured Party shall in its sole discretion determine.
(b) If any notification of intended sale of any of the
Collateral is required by law, such notification shall be deemed reasonable
if mailed at least ten (10) days before such sale, postage prepaid, (i)
addressed to Debtor at the address set forth immediately below Debtor's
signature(s) hereto, and (ii) to any other secured party from whom Secured
Party has received (prior to notification of Debtor or Debtor's
renunciation of his rights after default) written notice of a claim of an
interest in the Collateral.
7. Upon any negotiation, sale or assignment of any of the
Secured Debt by Secured Party, Secured Party may deliver or assign the
Collateral hereunder or any part thereof to the transferee or purchaser,
who thereupon shall have and may exercise all powers, rights and options in
respect of such Collateral and otherwise hereby given to Secured Party, and
the person who thus negotiates, sells or assigns any of such liabilities of
Debtor secured hereby shall thereafter be forever relieved and fully
discharged from any liability or accountability in respect to such
Collateral. Debtor agrees to pay all costs and expenses, including
attorneys' fees, incurred by Bank in selling or disposing of the
Collateral, which Collateral may be sold or disposed of by Bank through
Bank's securities brokerage affiliate.
8. All notices, statements, requests, and demands given to
or made upon Debtor by Secured Party shall be given or made to Debtor at
the address of Debtor's chief executive office set forth below Debtor's
signature hereto.
9. The provisions of this Security Agreement shall be
binding upon Debtor, and the heirs, personal representatives, successors
and assigns of Debtor.
IN WITNESS WHEREOF, Debtor, intending to be legally bound, has
executed this Security Agreement on the 24th day of May, 1995 with the
intention that this agreement shall constitute a sealed instrument.
ATTEST: Control Chief Holdings, Inc.
/S/Xxxxxxxxxxx X. Xxxxxx By/S/Xxxxxxx X. Xxxx
Xxxxxxxxxxx X. Xxxxxx Name:Xxxxxxx X. Xxxx
Secretary Title: President
(Seal)
By/S/Xxxxxx X. Xxxxxxxxx
Name:Xxxxxx X. Xxxxxxxxx
Title:Vice President
ATTEST: Control Chief Corporation
/S/Xxxxx X. Comes By/S/Xxxxxx X. Xxxxxxxxx
Xxxxx X. Comes Name:Xxxxxx X. Xxxxxxxxx
Secretary Title:President
(Seal)
By/S/Xxxxxxx X. Xxxx
Name:Xxxxxxx X. Xxxx
Title:Vice President
Address of chief executive office, including county where located: 00
Xxxxxx Xxxx, Xxxxx Xxx, XxXxxx Xxxxxx, Xxxxxxxxxxxx 00000
CERTIFICATE OF CORPORATE AUTHORIZATION
TO BORROW FROM BANK
I, Xxxxxxxxxxx X. Xxxxxx, hereby certify that I am the
Secretary of Control Chief Holdings, Inc. ("Corporation"), a Pennsylvania
corporation, and that the resolutions set forth below were adopted by the
Board of Directors of the Corporation in accordance with the bylaws of the
Corporation on May 24, 1995. Such resolutions have been, or will promptly
be, entered into the minute book of the Corporation and (i) have not been
amended, modified, or rescinded and remain in full force and effect on the
date hereof, and (ii) are not in contravention of or in conflict with the
bylaws, articles of incorporation, or charter of the Corporation.
RESOLVED that this Corporation borrow such money and
obtain such credit from INTEGRA BANK/NORTH ("Bank"), from time to
time or at any time hereafter, for such periods, including
amendments, modifications, extensions and renewals, upon such
terms, and with such security as the President, Vice President,
Secretary or Treasurer of this Corporation, or their successors
in office, or any two (2) of them may deem advisable; and that
said officer(s) is (are) hereby authorized and empowered on
behalf of this Corporation and in its name to make, execute and
deliver any and all instruments necessary or desired by Bank to
effect the same, including, without limiting the generality of
the foregoing, notes, drafts, acceptances, assignments or other
evidences of indebtedness, all in such form as may be requested
by Bank and containing one or more warrants of attorney to
confess judgment against the Corporation if required by Bank, and
as security for any such borrowing or credit to mortgage, pledge
and assign, convey or transfer by way of mortgage, pledge,
security agreement, or otherwise, real property, stocks, bonds,
notes, debentures, bills of lading, warehouse receipts, accounts
receivable, amounts due or to become due on open accounts or
contracts, insurance policies, inventory, machinery, equipment,
chattel paper, or any other property, tangible or intangible, of
this Corporation, and to execute any and all instruments
necessary or desired by Bank to effect the same or incidental
thereto, including, without limiting the generality of the
foregoing, security agreements, financing statements,
assignments, transfers, conveyances, mortgages of real and/or
personal property, trust receipts, factors lien contracts or
agreements, powers of attorney, and any other instruments, and
also to execute or have executed guaranties in connection
therewith and to discount bills receivable and negotiable
instruments, with power to endorse the same in the name of this
Corporation, and generally to execute any instrument or do any
other act required, necessary or deemed advisable in connection
with such credit borrowing or security; and that all past acts of
officer(s) of this Corporation in borrowing or obtaining credit
from Bank and in executing instruments and giving security on
behalf of this Corporation are hereby ratified and confirmed.
RESOLVED FURTHER that Bank be and hereby is authorized
and directed, without limitation or inquiry, irrespective of the
circumstances, to honor and carry out all orders, directions or
instructions of said officers as to the disposition of all
amounts borrowed or credit obtained on behalf of this Corporation
hereunder, and Bank shall be under no obligation or liability for
the use or disposition of any amounts borrowed or credit
obtained, even though used for the benefit of or deposited to the
credit of any of said officers.
RESOLVED FURTHER that the Secretary and/or any Assistant
Secretary is (are) authorized to certify to Bank the person(s)
now holding said office(s) and any changes hereafter in the
person(s) holding said office(s), together with specimen(s) of
the signature(s) of such present and future officer(s), and this
Corporation shall fully protect, indemnify, and save harmless
Bank from any claim, loss, cost, damage, or expense arising out
of its acting on such certification.
Undersigned further certifies that the following were duly
elected to and now hold the offices of the Corporation set opposite their
respective signatures.
(PLEASE SUPPLY GENUINE SIGNATURES BELOW.)
Title Typed Name
Signature
Chairman Xxxxxxx X. Xxxx /S/Xxxxxxx X. Xxxx
President Xxxxxxx X. Xxxx /S/Xxxxxxx X. Xxxx
Vice President Xxxxxx X. Xxxxxxxxx /S/Xxxxxx X. Xxxxxxxxx
Vice President Xxxxxx X. Xxxxxxxx /S/Xxxxxx X. Xxxxxxxx
Secretary Xxxxxxxxxxx X. Xxxxxx /S/Xxxxxxxxxxx X. Xxxxxx
Treasurer Xxxxxxx X. Xxxxxx /S/Xxxxxxx X. Xxxxxx
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the official seal of the Corporation this 24th day of May, 1995.
/S/Xxxxxxxxxxx X. Xxxxxx
Xxxxxxxxxxx X. Xxxxxx, Secretary
CERTIFICATION
I hereby certify that I am a director of the Corporation, that
the foregoing is a correct copy of resolutions passed as therein set forth,
and that the same are now in full force.
/S/Xxxxxxx X. Xxxx
[To be signed by a director other than the Secretary]
