Exhibit 10.43
RESTRICTED ACCOUNT AND SECURITY AGREEMENT
This RESTRICTED ACCOUNT AND SECURITY AGREEMENT (the "Agreement") is made as of
February 27, 1998, by and among KOPIN CORPORATION, a Delaware corporation (the
"Borrower"), THE SUMITOMO BANK, LIMITED, a Japanese banking corporation (the
"Bank"), and SUMITOMO BANK OF NEW YORK TRUST COMPANY (the "Bailee").
BACKGROUND
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The Borrower and the Bank have entered into a Loan Agreement of even date
herewith (the "Loan Agreement"). Prior to the date of the Loan Agreement, the
Borrower established a custodial and investment account, Account No. 1080410345
(the "Investment Account"), with Sumitomo Bank of New York Trust Company
("Account Holder") in which the Borrower holds cash and marketable securities.
Pursuant to Section 2.6 of the Loan Agreement and a certain Custodian
Agreement between the Borrower and the Bailee (the "Custodian Agreement"), the
Borrower will concurrently establish a restricted account (the "Custodian
Account") for the benefit of the Bank with the Bailee, a wholly owned subsidiary
of the Bank, on the terms and conditions set forth in the Collateral Bailment
Agreement of even date herewith by and among the Bank, the Borrower and the
Bailee (the "Collateral Bailment Agreement"). Pursuant to certain Irrevocable
Instructions and Power of Attorney of even date herewith addressed to Account
Holder, Account Holder shall upon certain events transfer cash and securities
from the Investment Account and transfer or deposit such cash and securities
into the Custodian Account for use and disposition as set forth herein and in
the Collateral Bailment Agreement.
NOW THEREFORE, in consideration of the premises set forth herein, the Borrower
and the Bank agree as follows:
1. DEFINITIONS.
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1.1 DEFINITIONS. Capitalized terms used but not defined in this Agreement
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shall have the meanings specified in the Loan Agreement.
2. ESTABLISHMENT AND MANAGEMENT OF CUSTODIAN ACCOUNT.
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2.1 EXECUTION AND DELIVERY OF COLLATERAL BAILMENT AGREEMENT.
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Concurrently with the execution and delivery of this Agreement, the
Borrower, the Bank and the Bailee shall execute and deliver the Collateral
Bailment Agreement in substantially the form of Exhibit 2.1 to this Agreement.
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2.2 ESTABLISHMENT OF CUSTODIAN ACCOUNT. Pursuant to the Collateral
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Bailment Agreement, Section 2.6 of the Loan Agreement, and the Custodian
Agreement, the Borrower shall establish the Custodian Account at the Bailee,
which Custodian Account shall be administered in accordance with the terms and
conditions of this Agreement, the Collateral Bailment Agreement, the Custodian
Agreement, and the Loan Agreement. In the event of any inconsistency between
this Agreement and the Collateral Bailment Agreement and/or the Custodian
Agreement, the Collateral Bailment Agreement shall be controlling.
2.3 BANK'S SECURITY INTEREST. The Borrower hereby pledges, transfers
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and assigns to the Bank, and grants to the Bank a first priority security
interest in and lien upon (i) the Custodian Account and all of the Borrower's
right, title and interest in all tangible and intangible property in the
Custodian Account, including, without limitation, all of the Borrower's rights
now or hereafter existing against the Bailee with respect to the collateral
described on Exhibit 2.3 hereof and maintained from time to time in
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the Custodian Account and (ii) all accounts, including, without limitation, all
accounts, all rights of the Borrower to payment for and obligations owing to the
Borrower for goods sold or leased or for services rendered (whether or not
evidenced by a writing, an instrument or chattel paper), all accounts receivable
of the Borrower, all rights of the Borrower to payment under a contract not yet
earned by performance, all obligations owing to the Borrower of any kind or
nature, including all writings, if any, evidencing the same, including all
instruments, drafts, acceptances and chattel paper, all of the foregoing whether
now owned or hereafter acquired and any and all products and proceeds of the
foregoing, including, without limitation, any insurance proceeds (collectively,
the "Collateral"), as security for the payment or performance of all obligations
of the Borrower to the Bank relating to the Loan and the Loan Documents
(collectively, the "Obligations").
2.4 POSSESSION OF COLLATERAL. Until released by the Bank in writing, the
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Bailee shall possess all right, title and interest in all funds on deposit and
all Collateral from time to time in the Custodian Account and in all proceeds
thereof, and the Collateral shall be under the sole dominion and control of
Sumitomo Bank of New York Trust Company as bailee and third party pledgeholder
(and not as agent for Borrower) for the purpose of the perfection of the Bank's
security interest in the Collateral, subject to the Borrower's right to invest
the Collateral pursuant to Section 2.6 hereof and the Borrower's right to
withdraw amounts in excess of the Required Restricted Account Balance
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("Excess Amounts") from the Custodian Account under Section 2.7(a) hereof. The
Bailee shall comply with all orders with respect to the Collateral originated by
the Bank without further consent by the Borrower. The Bailee shall maintain in
trust for the benefit of the Bank possession of certificated Collateral from the
time of purchase thereof until the time of sale or maturity. The Bank agrees to
instruct Bailee to release the Collateral within ten (10) Business Days of
Borrower's full and final satisfaction of Borrower's obligations under the Loan
Agreement.
2.5 UNCERTIFICATED SECURITIES. As to Collateral which consists of
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uncertificated securities or federal book entry securities, the Borrower shall
execute and deliver all such instructions and instruments determined by the
Bank, in its sole discretion, to be reasonably necessary (i) with respect to
uncertificated securities, to register the pledge of the Collateral to the
Bailee on behalf of the Bank upon the books and records of the issuer, a
clearing corporation, or such other entity which maintains the registrations of
such pledges, or (ii) with respect to federal book entry collateral, to
accomplish a book entry transfer of such collateral to an account maintained by
the Bailee at the Federal Reserve Bank of New York, and the name of the Bailee
shall appear as the owner of all such federal book entry collateral on the books
and records of said Federal Reserve Bank of New York.
2.6 INVESTMENT OF COLLATERAL. So long as the Bank has not given the
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Bailee notice that an Event of Default under the Loan Agreement has occurred and
is continuing (a "Default Notice"), the Borrower shall have the right, and the
Bank hereby grants the Borrower a license, either directly or through a person
designated by the Borrower, provided that written notice of the identity of such
designee has been given to the Bank and the Bailee, to invest, reinvest,
withdraw and substitute all cash, securities, proceeds and other Collateral
maintained from time to time in the Custodian Account, provided, however, that
except as otherwise permitted by Section 2.7(a), the right to withdraw cash or
securities may be exercised only in connection with the withdrawal of Excess
Amounts under Section 2.7(a) or the purchase and sale of securities and the
substitution of such sold securities with cash or other purchased securities of
equal value that are to be maintained in such Custodian Account. Upon the
Bailee's receipt of the Default Notice, the right and license granted to the
Borrower hereunder shall be automatically revoked without further notice and the
Bailee shall accept and act upon the instructions of only the Bank for the
purpose of investing, reinvesting, withdrawing and substituting the Collateral
and the Bank shall have sole and absolute discretion with respect to such
investing and reinvesting.
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2.7 WITHDRAWALS FROM CUSTODIAN ACCOUNT.
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(a) The Borrower shall not cause the transfer, release, distribution,
or withdrawal of any Collateral (other than in connection with the reinvestment
thereof and the concurrent substitution of Collateral of equal value) without
the Bank's prior written approval; provided that, prior to an Event of Default,
the Borrower may withdraw from the Custodian Account, fifty-one days after the
end of each fiscal quarter, any amount by which the Custodian Account Balance
exceeds the Required Restricted Account Balance. Following the occurrence of an
Event of Default, the Borrower shall have no right to withdraw Collateral from
the Custodian Account.
(b) The Bank will deliver a copy of any Default Notice to the Borrower
simultaneously with any delivery thereof to the Bailee. It is understood and
agreed that the Bailee shall be and hereby is irrevocably authorized and
directed by the Borrower and the Bank to take any course of action which the
Bank, pursuant to the authority granted under the Loan Documents, instructs the
Bailee to follow, including, without limitation, making immediate payment or
transfer of all Collateral solely and directly to the Bank whether or not such
action will cause investment income to be lost or fees to be incurred in
connection with the investment of the Collateral, upon the occurrence of an
Event of Default, without offset or deduction of any kind for any obligations or
indebtedness of the Borrower to the Bailee. The Borrower agrees that the Bailee
is hereby instructed and authorized to disregard any instructions which are
provided by Borrower to the Bailee that are contrary to or inconsistent with
instructions provided by the Bank to the Bailee after a Default Notice has been
given by the Bank.
3. BORROWER'S COVENANTS.
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3.1 BORROWER'S COVENANTS. The Borrower agrees and covenants that:
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(a) In no event shall it do or permit to be done, or omit to do or
permit the omission of, any act or thing, the doing or omission of which would
impair the security created by this Agreement;
(b) It shall, except for the lien and security interest created hereby
and the assignment to the Bank as collateral security provided for herein and as
permitted under the Loan Agreement, keep the Collateral free and clear from any
and all liens, claims, encumbrances, obligations, indebtedness or other similar
interests and that it will not assign any accounts or other Collateral to any
person other than the Bank;
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(c) It shall not (i) create, incur, assume, or permit to exist any
security agreements, security interests or any legal or beneficial ownership, or
other rights in the Collateral, or (ii) sell, transfer or assign the Collateral
or the Custodian Account or any collateral or deposits therein, except pursuant
to this Agreement or as permitted under the Loan Agreement;
(d) It shall not take or permit to be taken any other action which
would adversely affect the lien created hereby on the Collateral or the rights,
benefits and remedies available to the Bank hereunder or under the Collateral
Bailment Agreement;
(e) It shall pay and discharge, before they become delinquent, all
taxes, levies and other charges upon it and upon the Collateral and the Accounts
and the investments and deposits therein subject to its right to contest, by
appropriate legal proceedings diligently conducted and in good faith, any such
tax, levy or other charges and provided that such contest shall not impair the
security interest granted to the Bank hereunder; and
(f) It shall at its own expense, execute, and/or deliver, or cause to
be executed and delivered, to the Bank such notices, instruments, agreements,
financing statements, continuation statements, security agreements, assignments,
affidavits, opinions of Borrower's counsel and other documents, and take such
further actions relating to the Collateral, as the Bank in its sole and absolute
discretion deems necessary or reasonably appropriate or advisable to perfect,
preserve or protect the Bank's perfected first priority lien and security
interest granted hereby or to enable the Bank to exercise and enforce its rights
and remedies hereunder with respect to any Collateral; and it shall execute and
deliver such additional documents as the Bank may reasonably require or deem
advisable to carry into effect the purpose of this Agreement or to maintain the
Bank's interest hereunder.
(g) It shall not change, modify, terminate or amend its irrevocable
instructions delivered to Account Holder (the "Irrevocable Instructions")
pursuant to Section 2.6 of the Loan Agreement without written consent of the
Bank.
3.2 POWER OF ATTORNEY. The Borrower hereby irrevocably constitutes
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and appoints the Bank and any officer or agent thereof, with full power to
substitute other officers and agents for such officers and agents, as its true
and lawful attorney-in-fact with full irrevocable power and authority in the
place and stead of the Borrower without notice to or assent thereof, and in
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the name of the Borrower or in its own name, from time to time, but only upon
(i) the occurrence and continuation of a Trigger Event, or (ii) the failure by
the Borrower to perform any obligation under the Loan Documents or the
occurrence of any event if such failure or event would, in the Bank's reasonable
judgment, materially and adversely affect the Collateral, to take any and all
appropriate action, in the Bank's reasonable discretion, to execute any and all
documents and instruments relating to the Collateral which may be reasonably
necessary or desirable in the judgment of the Bank to protect or preserve the
Bank's interest in the Collateral and to perform any of the Borrower's
obligations hereunder relating to the Custodian Account, in the Borrower's name
or otherwise, provided, however, that unless a Trigger Event shall have occurred
and be continuing, the Bank shall not be entitled to deliver the Demand (as
defined in the Irrevocable Instructions) to Account Holder.
The Borrower hereby ratifies all that said attorneys lawfully do or cause to
be done by virtue hereof. This power of attorney is a power coupled with an
interest and is irrevocable for the term of this Agreement. The powers
conferred on the Bank hereunder are solely to protect its interests in the
Custodian Account and will not impose any duty upon the Bank to exercise any
such powers and the Bank will incur no liability to the Borrower or any third
party for failure to exercise any such powers. The Bank will be accountable
only for amounts that it actually receives as a result of the exercise of such
powers and in no event will the Bank or any of its officers, directors,
employees or agents be responsible to the Borrower for any act or failure to
act, except for gross negligence or willful misconduct, unless a higher standard
is imposed by law. The Borrower agrees to reimburse the Bank upon demand for any
costs and expenses including, without limitation, reasonable attorneys' fees the
Bank may incur while acting as the Borrower's attorney-in-fact hereunder, with
interest thereon at the rate set forth in the Note or the Loan Agreement. All
of such costs, expenses and interest are included in the Obligations secured by
the Collateral.
3.3 PRINCIPAL EXECUTIVE OFFICE. The Borrower represents and warrants
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that its major executive office in the United States and its records concerning
its accounts is located at 000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxxxxx
00000. The Borrower will deliver notice of any relocation of its principal
executive office in the United States not later than five (5) days prior to the
date of such relocation.
3.4 GOVERNMENT ACCOUNTS. The Borrower will immediately notify the Bank
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if any of the Borrower's accounts arise out of contracts with the United States
of America, any state or
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municipality, or any department, agency or instrumentality thereof, and will
execute any instruments and take any and all actions required by the Bank in
order to protect the Bank's interests therein so that all monies due and to
become due under such contracts shall be duly assigned to the Bank.
3.5 CONTINUING REPRESENTATIONS. The Borrower further represents and
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warrants that each of the representations and warranties made by the Borrower
herein is true and correct as of the date hereof, and are continuing
representations and warranties. In the event that any representation or warranty
set forth herein is no longer true or correct, the Borrower will immediately
notify the Bank in writing.
4. BANK'S RIGHTS AND REMEDIES.
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4.1 RIGHTS OF BANK.
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(a) The Bank may:
(i) At any time following the occurrence of an Event of Default,
instruct the Bailee to liquidate the collateral and pay the
proceeds of such liquidation to the Bank; and
(ii) Do any other act the Bank, at its discretion, may deem
proper, provided such action is commercially reasonable and
made in the best business judgment of the Bank.
(b) During the term of this Agreement, except upon the occurrence and
continuance of an Event of Default, the Borrower is hereby granted a license to
exercise all rights and privileges to vote the Collateral, and any other rights
appurtenant to ownership provided that all dividends of Collateral shall be
treated as Collateral. The Borrower agrees to execute and deliver to the Bank on
demand any statement, indorsement (stock or bond power), instruction, or other
document that the Bank in its sole discretion requests as being necessary to
create, preserve, validate, or enforce its security interest in the Collateral.
4.2 REMEDIES. Upon, and at any time following, the occurrence of an
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Event of Default, the Bank may, at the Bank's option:
(a) exercise with respect to the Collateral all of the remedies of a
secured party under Article 9 of the Uniform Commercial Code in the applicable
jurisdiction;
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(b) exercise any and all remedies available under law or in equity; and
(c) recover from the Borrower all costs and expenses, including
reasonable attorneys' fees, incurred by the Bank in exercising any right or
remedy provided for hereunder, or under any of the Loan Documents, or by law, or
in equity, which costs and expenses are included in the Obligations secured by
the Collateral.
Without limiting the foregoing, following the occurrence of an Event of
Default, the Bank shall have the right to sell, assign, deliver, encumber, or
otherwise dispose of any or all of the Collateral or instruct the Bailee to do
so. If any of the Collateral is of a type customarily sold in a recognized
market, it shall be commercially reasonable for the Bank to dispose of such
Collateral in such market within (i) a reasonable period of time after acquiring
possession thereof without further notice to the Borrower or (ii) a reasonable
period of time after receipt of written demand from the Borrower, and Bank shall
not be responsible for the value recognized in such disposition in a recognized
market. In all other events the Bank shall give the Borrower notice of the time
and place of the public sale of the Collateral or of the time after which any
private sale or other intended disposition is to be made by sending a notice of
such sale at least 10 days before the sale or disposition, which the Borrower
agrees shall be reasonable notice. In the event the Collateral is sold or
otherwise disposed of, the resale price or return shall be applied in the first
instance to the reasonable expenses of retaking, holding, preparing for sale or
lease, selling, leasing, and the like. The proceeds of the disposition of
Collateral may also be applied to the payment of the Bank's attorneys' fees and
legal expenses. Thereafter, the proceeds of the disposition of Collateral shall
be applied by the Bank to the payment of Borrower's Obligations. The Bank shall
have sole discretion as to the manner of allocating such proceeds of the
disposition of Collateral to the payment of Borrower's Obligations, including
without limitation the allocation to payment of accrued interest, outstanding
principal and/or other amounts due by Borrower under the Loan or Loan Documents.
Only after full payment of all of the Borrower's Obligations under the Loan and
the Loan Documents and any other payments the Borrower may be required to make
need the Bank account for, and pay to the Borrower, any surplus.
The Borrower recognizes that the Bank may be unable to effect a public sale of
the Collateral by reason of certain prohibitions contained in the Securities Act
of 1933, as amended, but may be compelled to resort to one or more private sales
thereof to a restricted group of purchasers who will be obligated to agree,
among other things, to acquire such securities for
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their own account, for investment and not with a view to the distribution or
resale thereof. The Borrower agrees that any such private sales may be at prices
and on other terms less favorable to the seller than if sold at public sales and
that such private sales shall not be deemed to have been made in a commercially
unreasonable manner on account of their private character.
No delay or omission to exercise any right or remedy of the Bank upon a
default by the Borrower will waive any right or remedy of the Bank or be
construed as a waiver of any similar default which occurs later. The Borrower
waives any right to require the Bank to proceed against any other person or to
exhaust any Collateral or to pursue any other remedy in the Bank's power.
4.3 BANK'S DETERMINATION CONCLUSIVE. The Bank's determination as to
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when an Event of Default or Trigger Event has occurred and what course of action
to take upon the occurrence of any of the foregoing events shall be conclusive
and binding upon the Bailee and the Borrower, insofar as the Bailee's
performance of its duties hereunder, and the Bailee shall have no duty or right
to inquire as to whether the Bank is entitled to give any instruction permitted
to be given under this Agreement. Notwithstanding anything to the contrary
contained herein, the Borrower agrees to indemnify and hold the Bailee harmless
against any and all losses, liabilities, expenses (including, without
limitation, attorneys' fees, costs and expenses), claims, actions or demands
arising out of, relating to or in connection with the Bailee's compliance with
the Bank's instructions, except to the extent any such losses, liabilities,
expenses, claims, actions or demands are the result of the gross negligence or
willful misconduct of the Bailee. The foregoing indemnities in this Section 4.3
shall survive the termination of this Agreement.
4.4 INDEMNIFICATION. The Borrower hereby agrees to indemnify and hold
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the Bank and Bailee harmless from any and all liability, loss, damage or expense
(including, without limitation, reasonable attorney's fees and disbursements)
incurred hereunder, in the enforcement by the Bank of any of its rights or
remedies hereunder, in any action taken by the Bank hereunder, and/or by reason
or in defense of any and all claims and demands whatsoever that may be asserted
against the Bank arising out of the Collateral or otherwise arising in respect
of the Bank acting in accordance with this Agreement (excluding, however, any
such liability, loss, damage or expense incurred by reason of the willful
misconduct or gross negligence of the Bank); and should the Bank incur any such
liability, loss, damage or expense, the amount thereof shall be payable by the
Borrower, following demand therefor, together with interest which shall
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accrue thereon at the interest rate applicable to the Loan in effect at that
time as provided for in the Loan Documents from the date of such demand, and
shall be secured by this Agreement.
4.5 BANK EXCULPATIONS. The Bank shall not be responsible for or have any
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liability for the form, legal sufficiency, genuineness, or legal effect of any
signature, description, guaranty, instruction, or document related to the
Collateral not provided by the Bank or its representatives. The Borrower agrees
that the Bank will not in any way or manner be liable or responsible for any
diminution in the value of the Collateral resulting from the release, sale or
other disposition of the Collateral at the Borrower's request, or from the
failure of the Bank to sell or consent to the sale, liquidation, reinvestment or
other disposition of the Collateral (provided that if such failure to consent
occurred prior to an Event of Default, the Bank's action or consent was not
unreasonably withheld), or for any act or default by the Bailee, any bailee,
forwarding agency, transfer agent or any person whomsoever, in connection with
the Collateral, except that for any release, sale or disposition of the
Collateral not made at the Borrower's request, the Bank may be liable for the
Bank's own gross negligence or willful misconduct.
4.6 BAILEE EXCULPATIONS The Bailee will not be responsible for or have
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any liability for the form, legal sufficiency, genuineness, or legal effect of
any signature, description, guaranty, instruction, or document related to the
Collateral not provided by the Bailee or its representatives. The Borrower
agrees that the Bailee will not in any way or manner be liable or responsible
for any diminution in the value of the Collateral resulting from the release,
sale or other disposition of the Collateral at the Borrower's request, or from
the failure of the Bailee to sell or consent to the sale, liquidation,
reinvestment or other disposition of the Collateral (provided that if such
failure to consent occurred prior to an Event of Default, the Bailee's action or
consent was not unreasonably withheld), or for any acts taken by Bailee in its
capacity as bailee hereunder or as bailee under the Collateral Bailment
Agreement, except that for any release, sale or disposition of the Collateral
not made at the Borrower's request, the Bailee may be liable for the Bailee's
own gross negligence or willful misconduct.
5. MISCELLANEOUS.
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5.1 AMENDMENT. This Agreement may be amended only by a writing signed by the
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parties hereto. Any notice or document required by these instructions may be
signed by the heirs or successors of the Bank and the Borrower.
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5.2 GOVERNING LAW. This Agreement, and the rights of the parties
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hereunder, shall be governed by the laws of the State of New York.
5.3 JURISDICTION.
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(a) Each of the Borrower, the Bailee and the Bank hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any Massachusetts state court or Federal court of the United
States of America in each case sitting in Boston, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
Borrower, the Bailee and the Bank hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such Massachusetts state or, to the extent permitted by law, in
such Federal court. Each of the Borrower and the Bank agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that a party
may otherwise have to bring any action or proceeding relating to this Agreement
against any other party or its respective properties in the court of any
jurisdiction.
(b) Each of the Borrower, the Bailee and the Bank hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
in any such Massachusetts state or Federal court. Each of the Borrower, the
Bailee and the Bank hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
(c) EACH OF THE BORROWER, THE BAILEE AND THE BANK HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE BAILEE, THE BORROWER OR
THE BANK.
5.4 COUNTERPARTS. This Agreement, and any other documents required to
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be signed by the parties hereunder, may be signed in counterparts, each of which
will constitute one and the same instrument.
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5.5 NOTICES. Any notices required or permitted to be given hereunder
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shall be delivered in the manner and shall take effect at the times specified in
the Loan Agreement. Notices to the Bank or the Borrower may be sent to the
addresses set forth in the Loan Agreement and notices to the Bailee may be sent
to the address set forth in the Collateral Bailment Agreement.
5.6 ENTIRE AGREEMENT. This Agreement, the Collateral Bailment Agreement,
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the Loan Agreement, the Note, the Custodian Agreement, the Irrevocable
Instructions and Power of Attorney and the other Loan Documents embody the
entire agreement and understanding between the Bank and the Borrower and
supersede all prior agreements and understandings relating to the subject matter
hereof.
5.7 SECTION HEADINGS. Section headings are for reference only, and shall
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not affect the interpretation or meaning of any provision of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
KOPIN CORPORATION,
a Delaware corporation
By: /s/ Xxxx X.Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: CFO
THE SUMITOMO BANK, LIMITED
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx XxXxxxxx
---------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
SUMITOMO BANK OF NEW YORK TRUST COMPANY
By: /s/ Xxxxxxxx Xxx
---------------------------------
Name: Xxxxxxxx Xxx
Title: President
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EXHIBIT 2.1
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Form of Collateral Bailment Agreement
See attached
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EXHIBIT 2.3
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Description of Collateral
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(a) All accounts, money, deposit accounts, certificated securities,
uncertificated securities, chattel paper, documents, instruments, general
intangibles and all other investment property or other property of any sort
held, maintained or administered or to be held, maintained or administered for
the Borrower by the Bailee under the Custodian Agreement by and between the
Borrower and the Bailee, together with any stock or conversion rights, rights to
subscribe, liquidation dividends or preferences, stock dividends, dividends,
rights to interest, interest payments, dividends paid in stock, distributions
thereon, new securities or other property which the Borrower is or may hereafter
become entitled to receive on account of such property.
(b) All property now owned or hereafter acquired by or for the Borrower of the
type or class described in any schedule supplementary hereto or in any financing
statement filed by the Bank and the Borrower pursuant to the Custodian
Agreement.
(c) All proceeds (including without limitation insurance proceeds from the
Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance
Corporation or the Securities Investor Protection Corporation or any other
insurance company), increase and products of any of the foregoing or
replacements thereof or substitutions therefor.
(d) All items listed in the attachments hereto, if any, and all replacements
thereof or other items purchased with any of said items or their proceeds.
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