XXXXXX WORKING CAPITAL FACILITY
SUBORDINATED LOAN AGREEMENT
THIS SUBORDINATED LOAN AGREEMENT (this "AGREEMENT") is entered into as of
July 20, 1998, among EIP MICROWAVE, INC., a Delaware corporation (the
"COMPANY"), and XXXXX X. XXXXXX, XX. (the "LENDER").
R E C I T A L S
A. The Company desires to obtain the commitment of the Lender to advance
up to a maximum of $500,000 to the Company, and the Lender is willing to make
such commitment on the terms and conditions set forth in this Agreement.
B. As a condition to the initial advance of any funds by the Lender to
the Company, the Company is required to issue to the Lender a subordinated note
evidencing the obligation of the Company to repay such advances and interest
thereon, and to issue a warrant certificate evidencing the right of the Lender
to acquire shares of common stock of the Company, and to grant a security
interest in the assets of the Company to the Lender, in each case, on the terms
and subject to the conditions set forth in this Agreement.
C. The Lender is willing to subordinate his right to repayment of the
advances made to the Company by the Lender and interest thereon to the rights of
the holders of any senior indebtedness of the Company with a financial
institution and to any seller financing in connection with a strategic
acquisition by the Company, in each case, whether currently existing or created
in the future.
A G R E E M E N T
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
"ADVANCE" means an advance by the Lender to the Company pursuant to
Section 2.
"AFFILIATE" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlled by" and
'"under common control with"), as used with respect to any Person shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether in the capacity
of officer or director of such Person, through the ownership of securities, by
agreement or otherwise.
"BORROWING" means a borrowing consisting of advances made on the same day
by the Lender.
"BUSINESS DAY" means the date of the year on which banks are not required
or authorized to close in California or Oregon.
"CLOSING DATE" means the date on which the conditions set forth in
Section 3 applicable to the making of the initial advances under this Agreement
have been fulfilled and such initial advances are made.
"COMMITMENT" has the meaning specified in Section 2.1.
"COMMITMENT TERMINATION DATE" means July 1, 1999, subject to a one year
extension if both parties mutually agree and the Company is not in default of
its obligations under the Note.
"COMMON STOCK" means, with respect to the Company, the Common Stock, par
value $0.01, of the Company.
"DEFAULT" means any event which is, or after notice or passage of time
would be, a Event of Default.
"DOCUMENTS" means this Agreement, the Note, the Warrant, the Security
Agreement, and any other subordination agreements or other agreements relating
to the Note, the Warrant or this Agreement whether entered into on the date
hereof or hereafter, collectively, together with any exhibits, schedules or
other attachments thereto.
"INDEBTEDNESS" means, with respect to any Person, the aggregate amount of
the following: (a) all obligations for borrowed money; (b) all obligations
evidenced by bonds, debentures, notes or other similar instruments; (c) all
obligations to pay the deferred purchase price of property or services, except
trade payables, accrued commissions and other similar accrued current
liabilities in respect of such obligations, in any case, not overdue, arising in
the ordinary course of business; (d) all capitalized lease obligations; (e) all
obligations or liabilities of others secured by a Lien on any asset owned by
such Person or Persons whether or not such obligation or liability is assumed;
(f) all obligations of such Person or Persons, contingent or otherwise, in
respect of any letters of credit or bankers' acceptances; and (g) all
guaranties.
"LIEN" means any mortgage, pledge, lien, encumbrance or claim affecting
title or resulting in a charge against real or personal property, or security
interest of any kind (including, without limitation, any conditional sale or
other title retention agreement, any lease in the nature thereof, any option or
other agreement to sell and any financing statement under the Uniform Commercial
Code or equivalent statute of any jurisdiction).
"MATURITY DATE" means July 1, 1999, subject to a one year extension if both
parties mutually agree and the Company is not in default of its obligations
under the Note.
"PERMITTED LIEN" means any financing statement on file on the date hereof,
and any continuations thereof, securing the Company's existing obligations on
the date hereof, any Lien
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securing any Senior Indebtedness or any lease and any other Liens approved in
writing by the Lender.
"PERSON" means an individual, partnership, corporation, trust or
unincorporated organization or a government or agency or political division
thereof.
"SENIOR INDEBTEDNESS" means any Indebtedness of the Company from the
extension of credit by a financial institution or any seller financing in
connection with a strategic acquisition by the Company, in each case, whether
currently existing or created in the future.
SECTION 2. AMOUNTS AND TERMS OF THE ADVANCES
2.1 ADVANCES. The Lender agrees, on the terms and conditions set forth in
this Agreement, to make Advances to the Company from time to time on any
Business Day during the period from July 1, 1998 until the Commitment
Termination Date in an aggregate amount not to exceed at any time outstanding
$500,000 (the "COMMITMENT"). Each Borrowing shall be in an aggregate amount not
less than $10,000 or an integral multiple of $10,000 in excess thereof. Amounts
borrowed by the Company and prepaid pursuant to Section 2.4 may be reborrowed
under this Section 2.1.
2.2 MAKING THE ADVANCES. Each Borrowing shall be made on notice, given
not later than 5:00 P.M. on the third Business Day prior to the date of the
proposed Borrowing, by the Company to the Lender. Such notice of a Borrowing (a
"NOTICE OF BORROWING") shall be sent by facsimile to the Lender, specifying
therein the requested date of such Borrowing and the aggregate amount of such
Borrowing. The Lender shall, before 5:00 P.M. on the date of such Borrowing,
make such Borrowing available to the Company at its address, upon fulfillment of
the applicable conditions set forth in Section 3.
2.3 REDUCTION OF THE COMMITMENTS. The Commitment of the Lender shall be
reduced to zero on the Commitment Termination Date.
2.4 REPAYMENT AND PREPAYMENT OF ADVANCES. The Company shall repay the
principal amount of each Advance owing to the Lender on the Maturity Date. The
Company may prepay the outstanding principal amounts of the Advances, in whole
or in part, together with accrued interest to the date of such prepayment on the
principal amount prepaid; PROVIDED, HOWEVER, that each partial prepayment shall
be in an aggregate principal amount not less than $10,000 or an integral
multiple of $10,000 in excess thereof.
2.5 INTEREST. The Company shall pay interest on the unpaid principal
amount of each Advance owing to the Lender from the date of such Advance until
such principal amount shall be paid in full, at the prime rate published from
time to time by The Wall Street Journal, plus two percent (2%) per annum.
Interest shall be payable on the first Business Day of each calendar month
during the term of this Agreement and on the Maturity Date.
2.6 PAYMENTS AND COMPUTATIONS. The Company shall make each payment
hereunder not later than 5:00 P.M. on the date when due in U.S. dollars to the
Lender at its address referred to herein. All computations of interest shall be
made on the basis of a year of 365 days for the
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actual number of days (including the first day but excluding the last day)
occurring for which interest is payable. Whenever any payment hereunder
shall be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest.
SECTION 3. CONDITIONS
3.1 CONDITIONS PRECEDENT TO INITIAL ADVANCES. The obligation of the
Lender to make its initial advance is subject to the conditions precedent that
the Lender shall have received the following, each dated the Closing Date
(unless otherwise specified), in form and substance satisfactory to the Lender:
(a) A Subordinated Note for the Lender, duly executed by the
Company, in substantially the form of EXHIBIT A (the "NOTE"), and in a
principal amount equal to the Commitment of the Lender.
(b) A Warrant Certificate for the Lender, duly executed by the
Company, in substantially the form of EXHIBIT B hereto (the
"Warrant"), and for 100,000 shares of Common Stock (the "WARRANT
SHARES").
(c) A Security Agreement, duly executed by the Company, in
substantially the form of EXHIBIT C hereto (the "SECURITY AGREEMENT"),
together with proper Financing Statements (Form UCC-1) for filing
under the Uniform Commercial Code of all jurisdictions as may be
necessary or, in the opinion of the Lender, desirable or required to
perfect the security interests created by the Security Agreement.
3.2 ADDITIONAL CONDITIONS PRECEDENT TO EACH ADVANCE. It shall be an
additional condition precedent to each Advance under this Agreement, before and
after giving effect thereto and the application of the proceeds therefrom:
(a) The representations and warranties of the Company contained in
Section 4 of this Agreement are correct on and as of the date of such
Advance as though made on and as of such date.
(b) No event has occurred and is continuing, or would result from
such Advance that constitutes a Default.
The giving of each notice of Borrowing and the receipt of the proceeds of each
Advance referred to therein, shall each constitute a representation and warranty
by the Company that each of the statements in Section 3.2(a) and (b) shall be
true as of the date of such Advance.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants as follows:
4.1 ORGANIZATION, STANDING AND QUALIFICATION. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. The
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Company has all requisite power and authority to enter into and perform all
of its obligations under the Documents, to issue and perform all of its
obligations under the Note and the Warrant and to carry out the transactions
contemplated hereby and thereby.
4.2 AUTHORIZATION OF AGREEMENT AND OTHER DOCUMENTS. The Company has taken
all corporate actions necessary to authorize it to enter into and perform all of
its obligations under the Documents to which it is a party, to issue and perform
all of its obligations under the Note and the Warrant and to consummate the
transactions contemplated hereby and thereby. The Documents and the Note and
the Warrant are legal, valid and binding obligations of the Company, enforceable
against it in accordance with their respective terms.
4.3 NO VIOLATION. Neither the execution or delivery of the Documents nor
the issuance or delivery of the Note or the Warrant nor the performance by the
Company of its obligations under the Documents or the Note or the Warrant nor
the consummation of the transactions contemplated hereby and thereby, will (a)
violate any provision of the certificate of incorporation and bylaws of the
Company; (b) violate any statute, law, rule or regulation or any judgment,
order, regulation or rule of any court or governmental authority to which the
Company or any of its properties may be subject; (c) permit or cause the
acceleration of the maturity of any debt or obligation of the Company; or (d)
violate, or be in conflict with, or constitute a default under, or permit the
termination of or require the consent of any Person under, or result in the
creation of any Lien upon any property of the Company under, any mortgage,
indenture, loan agreement, note, debenture or other agreement for borrowed money
or any other agreement to which the Company is a party or by which the Company
or its properties may be bound.
4.4 USE OF PROCEEDS. The net proceeds from the Advances hereunder will be
used for operating the Company's business and such other lawful purposes as the
Company shall determine.
4.5 FINANCIAL STATEMENTS. The books of account and related records of the
Company fairly reflect in all material respects and reasonable detail all of the
assets, liabilities and transactions of the Company in accordance with generally
accepted accounting principles. The audited balance sheet of the Company as at
September 30, 1997, and the audited statement of income for the fiscal year then
ended as well as the unaudited balance sheet of the Company as at March 31,
1998, and the unaudited statement of income for the six months ended March 31,
1998, as delivered to the Lender, are in accord with the books and records of
the Company and present fairly in all material respects the financial condition
and results of operations of the Company as at September 30, 1997 and March 31,
1998, respectively, and for the periods therein referred to, in accordance with
generally accepted accounting principles. Since March 31, 1998, the Company has
not suffered any material adverse change in its properties, business, prospects,
operations, earnings, assets, liabilities or condition (financial or otherwise).
4.6 FULL DISCLOSURE. None of the Documents or any document contemplated
hereby or thereby, or the financial statements referred to in Section 4.5
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made not misleading.
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4.7 LITIGATION. There is no action, proceeding or investigation pending,
or to the knowledge of the Company after due inquiry, threatened, against or
affecting the Company in any court or before any governmental authority or
arbitration board or tribunal, foreign or domestic, and there is no such action
pending to restrain, enjoin, prevent the consummation of or otherwise challenge
any of the Documents or the issuance of the Note or the Warrant or the other
transactions contemplated hereby or thereby. The Company is not subject to any
judgment, order, decree, rule or regulation of any court, governmental authority
or arbitration board or tribunal.
4.8 TITLE TO AND CONDITION OF PROPERTIES. Except for the Permitted Liens,
the Company has good and marketable title to all assets used in its business
free and clear of all Liens. The Company enjoys peaceful and undisturbed
possession under all leases to which it is a party as lessee. All leases and
other agreements to which the Company is a party are valid and binding and in
full force and effect, no default has occurred or is continuing thereunder and
no consent need be obtained from any Person in respect of any such lease or
agreement in connection with the transactions contemplated hereby. All tangible
assets, plants and facilities of the Company are in acceptable condition and
repair and are proper for the uses to which they are being put; and none of such
facilities and assets is in need of maintenance or repair, except for routine
maintenance and repair.
4.9 TAXES. All tax returns required to be filed by the Company have been
filed, and all taxes, assessments, fees and other charges due or claimed to be
due from the Company which are due and payable have been paid. The Company does
not know of any actual or proposed additional tax assessments for any fiscal
period against the Company or of any basis therefor. None of the Company's tax
returns are under audit, and no waivers of the statute of limitations or
extensions of time with respect to any tax returns have been granted by the
Company.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE LENDER
The Lender hereby represents and warrants that:
5.1 PURCHASE ENTIRELY FOR OWN ACCOUNT. The Note and the Warrant will be
acquired and the Warrant Shares that the Lender may purchase upon exercise of
the Warrant will be acquired for investment for the Lender's own account, not as
a nominee or agent, and not with a view to the resale or distribution of any
part thereof. The Lender has no present intention of selling, granting any
participation in, or otherwise distributing the same.
5.2 DISCLOSURE OF INFORMATION. The Lender believes he has received all
the information he considers necessary or appropriate for deciding whether to
acquire the Note and the Warrant and/or purchase the Warrant Shares. The Lender
has had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the offering of the Note, Warrant and the
Warrant Shares.
5.3 INVESTMENT EXPERIENCE. The Lender is an investor in securities of
companies in the development stage and acknowledges that he is able to fend for
himself, and bear the economic risk of his investment and has such knowledge and
experience in financial or business
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matters that he is capable of evaluating the merits and risks of the
investment in the Note, the Warrant and the Warrant Shares.
5.4 RESTRICTED SECURITIES. The Lender understands that the Note, the
Warrant and the Warrant Shares are "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act of 1933, as amended (the "ACT") only in certain limited
circumstances. In this connection, the Lender represents that he is familiar
with Rule 144 promulgated under the Act, as presently in effect, and understands
the resale limitations imposed thereby and by the Act.
5.5 LEGENDS. The Lender acknowledges that the Note, the Warrant and the
certificates evidencing the Warrant Shares may bear one or all of the following
legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933; THEY HAVE BEEN ACQUIRED BY
HOLDER FOR INVESTMENT AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT AS MAY BE AUTHORIZED UNDER THE
SECURITIES ACT OF 1933 AND THE RULES AND REGULATIONS PROMULGATED
THEREUNDER."
(b) Any legend required by the laws any applicable state.
SECTION 6. COVENANTS OF THE COMPANY
So long as any obligations under the Note remain unpaid and outstanding,
the Company covenants and agrees for the benefit of the Lender as follows:
6.1 LIMITATION ON RESTRICTED PAYMENTS AND ADDITIONAL INDEBTEDNESS. The
Company shall not, directly or indirectly: (a) declare or pay any dividend or
make any distribution in respect of any capital stock; or (b) purchase, redeem
or otherwise acquire or retire for value any capital stock. The Company will
not, directly or indirectly, create, incur, guarantee or otherwise become or
remain directly or indirectly liable with respect to any Indebtedness other than
(a) Indebtedness reflected on the balance sheet of the Company as of Xxxxx 00,
0000, (x) the Indebtedness represented by the Note, (c) the Senior Indebtedness,
(d) up to $2,000,000 in the aggregate in other Indebtedness at any time
outstanding, and (e) such other Indebtedness approved in writing by the Lender.
6.2 RESTRICTIONS ON LIENS. The Company will not create or suffer to exist
any Liens upon any assets of the Company, other than the Permitted Liens.
6.3 COMPLIANCE WITH LAWS. The Company shall comply in all material
respects with all statutes, ordinances, rules, regulations, judgements, orders
and directives to which it is subject, and obtain and keep in effect in all
material respects all licenses, permits, franchises and other governmental
authorizations as to the ownership or operation of its properties or the
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conduct of its businesses. The Company shall pay prior to delinquency all
taxes, assessments and governmental levies.
6.4 NO MERGER, ETC. The Company shall not consolidate or merge with or
into, or sell, lease, convey or otherwise dispose of all or substantially all of
its assets to, any Person.
6.5 INSURANCE. The Company shall maintain liability, casualty and other
insurance with reputable insurers in such amounts and against such risks as is
carried by responsible companies engaged in similar businesses and owning
similar assets.
SECTION 7. COVENANTS OF THE LENDER
7.1 SUBORDINATION. The Lender agrees to subordinate the payment of all
obligations by the Company under the Note to the Company's obligations under any
Senior Indebtedness and any seller financing in connection with a strategic
acquisition by the Company, on such reasonable terms and conditions as are
required by the lender of such Senior Indebtedness.
SECTION 8. INDEMNIFICATION AND CONTRIBUTION
8.1 INDEMNIFICATION. The Company hereby agrees, without limitation as to
time, to indemnify the Lender and its agents and Affiliates (collectively, the
"INDEMNIFIED PARTIES") against, and hold him harmless from, all loss, claims,
damages, liabilities, costs (including the costs of preparation and attorneys'
fees and expenses) (collectively, "LOSSES") incurred by him and arising out of
or in connection with this Agreement or the other Documents or the transactions
contemplated hereby or thereby (or any other document or instrument executed
herewith or pursuant hereto or thereto), whether or not any Indemnified Party is
a formal party to any proceeding, other than to the extent, and only to the
extent, that any Losses directly result from action on the part of any
Indemnified Party which is finally determined to constitute either gross
negligence or willful misconduct. The Company agrees to reimburse any
Indemnified Party promptly for all such Losses as they are incurred by such
Indemnified Party. The obligations of the Company to each Indemnified Party
hereunder shall be separate obligations and the Company's liability to any such
Indemnified Party hereunder shall not be extinguished solely because any other
Indemnified Party is not entitled to indemnity hereunder. The obligations of
the Company under this Section 8.1 shall survive the payment or prepayment of
the Note, at maturity, upon acceleration, redemption or otherwise, any transfer
of the Note by the Lender, and the termination of this Agreement and the other
Documents.
8.2 PROCEDURE FOR INDEMNIFICATION. In case any action shall be brought
against any Indemnified Party with respect to which indemnity may be sought
against the Company hereunder, such Indemnified Party shall promptly notify the
Company in writing and it shall, if it so desires, assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Party and payment of all reasonable fees and expenses. The failure to so notify
the Company shall not affect any obligation it may have to any Indemnified Party
under this letter or otherwise except to the extent the Company is materially
adversely affected by such failure. Each Indemnified Party shall have the right
to employ separate counsel in such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the Indemnified Party unless: (i) the Company has agreed in writing to
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pay such expenses; or (ii) the Company has failed to assume the defense and
employ counsel or (iii) the named parties to any such action (including any
impleaded parties) include any Indemnified Party and the Company, and such
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to it which are inconsistent with or additional
to those available to the Company, PROVIDED that, if such Indemnified Party
notifies the Company in writing that it elects to employ separate counsel in
the circumstances described in clauses (i), (ii) or (iii) above, the Company
shall not have the right to assume the defense of such action or proceeding.
The Company shall not be liable for any settlement of any such action
affected without its written consent (which shall not be unreasonably
withheld). The Company agrees that it will not, without the Indemnified
Party's prior consent, which shall not be unreasonably withheld, settle or
compromise any pending or threatened claim, action or suit in respect of
which indemnification or contribution may be sought hereunder unless the
foregoing contains an unconditional release of the Indemnified Parties from
all liability and obligation arising therefrom.
8.3 CONTRIBUTION. If the indemnification provided for in Sections 8.1 and
8.2 is unavailable to any Indemnified Party in respect of any Losses referred to
therein, then the Company, in lieu of indemnifying such Persons, shall
contribute to the amount paid or payable by such Persons as a result of such
Losses in such proportion as is appropriate to reflect the fault of the Company,
and the Lender and the other Indemnified Parties in connection with the actions
which resulted in such Losses as well as any other relevant equitable
considerations. The amount paid or payable by any such Person as a result of the
Losses referred to above shall be deemed to include, subject to the limitations
set forth in Sections 8.1 and 8.2, any legal or other fees or expenses
reasonably incurred by such Person in connection with any investigation, lawsuit
or legal or administrative action or proceeding. The parties hereto agree that
it would not be just and equitable if contribution pursuant to this Section 8.3
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in this
paragraph.
SECTION 9. DEFAULTS AND REMEDIES
9.1 EVENTS OF DEFAULT. An "EVENT OF DEFAULT" occurs if:
(a) the Company defaults in the payment of any principal on the Note
when the same becomes due and payable;
(b) the Company defaults in the payment of interest on the Note when
the same becomes due and payable and the Default continues for a period of five
days after notice thereof to the Company;
(c) the Company fails to comply in any material respect with any of
the agreements, covenants, or provisions of this Agreement, the Note, or the
Documents and the Default continues for a period of 30 days after notice thereof
to the Company;
(d) if any of the representations or warranties of the Company made
in or in connection with any of the Documents are untrue in any material respect
as of the date such representations and warranties are made;
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(e) an event of default occurs under any material loan agreement,
note, mortgage, indenture or instrument under which there may be issued or by
which there may be acquired or evidenced any material Indebtedness of the
Company, whether such Indebtedness now exists or shall be created hereafter; and
the obligation to pay such Indebtedness is accelerated by the lender thereof;
(f) a final judgment or final judgments for the payment of money in
an amount in excess of $100,000 are entered by a court of competent jurisdiction
against the Company and such judgment remains undischarged for a period of 30
days;
(g) the Company pursuant to or within the meaning of any bankruptcy
law or any similar federal or state law (1) commences a voluntary action, (2)
consents to the entry of an order for relief against it in an involuntary case,
(3) consents to the appointment of any custodian, receiver, trustee, assignee,
liquidator or similar official of the Company or for all or substantially all of
its property, (4) makes a general assignment for the benefit of its creditors,
or (5) generally is unable to pay its debts as the same become due; or
(h) a court of competent jurisdiction enters an order or decree under
any bankruptcy law or any similar federal of state law that: (1) is for relief
against the Company in an involuntary case against it, (2) appoints any
custodian, receiver, trustee, assignee, liquidator or similar official of the
Company or for all or substantially all of its property, or (3) grants the
liquidation of the Company, and the order or decree remains unstayed and in
effect for 30 days.
9.2 ACCELERATION OF NOTE. If an Event of Default (other than an Event of
Default described in clauses (g) and (h) of Section 9.1) occurs and is
continuing, the Lender by notice to the Company, may declare the unpaid
principal of and any accrued interest on the Note to be due and payable.
Immediately upon such declaration, the principal and interest shall be due and
payable. If an Event of Default described in clause (g) or (h) of Section 9.1
occurs, all principal and interest shall IPSO FACTO become and be immediately
due and payable without any declaration or other act on the part of the Lender.
9.3 OTHER REMEDIES. If an Event of Default occurs and is continuing, the
Lender may pursue any available remedy to collect the payment of principal or
interest on the Note or to enforce the performance of any provision of the Note
or this Agreement. A delay or omission by the Lender exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
9.4 WAIVER OF PAST DEFAULTS. The Lender by written notice to the Company
may waive an existing Default or Event of Default and its consequences.
9.5 EXPENSES AND FEES. The Company agrees to promptly pay all reasonable
fees, costs and expenses (including attorneys' fees) incurred by the Lender
prior to execution of this Agreement (up to a maximum of $1000) in connection
with the preparation, review and negotiation of this Agreement, the Note, the
Warrant or the other Documents. In addition, the Company agrees to promptly pay
all reasonable fees, costs and expenses (including attorneys'
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fees) incurred by the Lender in any action to enforce this Agreement, the
Note, the Warrant or the other Documents or to collect any payments due from
the Company under this Agreement, the Note, the Warrant or the other
Documents.
SECTION 10. MISCELLANEOUS
10.1 NOTICES. All notices and other communications provided for or
permitted hereunder shall be made by hand delivery, first class mail,
telecopier, or overnight air courier guaranteeing next day delivery (a) if to
the Lender, at his address set forth on the signature page; or (b) if to the
Company, at its address set forth on the signature page. Any such notices and
communications shall be deemed to have been duly given at the time delivered by
hand, if personally delivered; five business days after being deposited in the
mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and
the next business day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery. The parties may change the addresses
to which notices are to be given by giving five days' prior notice of such
change in accordance herewith.
10.2 COUNTERPARTS; HEADINGS; ENTIRE AGREEMENT; SEVERABILITY; SUCCESSORS AND
ASSIGNS. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. This Agreement, together with the other Documents and the Note,
are intended by the parties as a complete statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. There are no restrictions or undertakings, other than those
set forth or referred to herein and therein. This Agreement, together with the
other Documents and the Note, supersedes all prior agreements and understandings
between the parties with respect to such subject matter. In the event that any
one or more of the provisions contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions hereof shall not be in any
way impaired or affected, it being intended that all rights and privileges of
the Lender shall be enforceable to the fullest extent permitted by law. This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties.
10.3 AMENDMENT AND WAIVER. This Agreement may be amended, modified or
supplemented, and waivers or consents to departure from the provisions hereof
may be granted provided that the same are in writing and signed by the Company
and the Lender.
10.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Oregon.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first set forth above.
THE COMPANY
EIP MICROWAVE, INC.
0000 XxXxxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Fax Number: (000) 000-0000
By: /s/ J. XXXXXXXX XXXXXX
-------------------------------------
J. Xxxxxxxx Xxxxxx
Chairman and Chief Executive Officer
THE LENDER
/s/ XXXXX X. XXXXXX, XX.
--------------------------------
Xxxxx X. Xxxxxx, Xx.
0000 X.X. Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Fax Number: (000) 000-0000
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