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EXHIBIT 10.35
LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement (the "Agreement"), effective as of the
date accepted by XXXXXXX X. X'XXXXXX (herein referred to as "you" or "your"),
sets forth the terms and conditions upon which you will make loans and advances
and extend other financial accommodations to ELTRAX SYSTEMS, INC., a Minnesota
corporation (herein referred to as "we", "us" or "our"):
RECITALS
1. DEFINITIONS. As used herein:
(A) "COLLATERAL" means all of our presently owned and hereafter
acquired:
(i) accounts (whether or not earned by performance), proceeds
of any letter of credit naming us as a beneficiary,
chattel paper, contracts, contract rights, instruments and
documents, general intangibles (including without
limitation tax refunds, tax refund claims, trade names,
trademarks, copyrights, patents and licenses with respect
to the foregoing), (individually and collectively referred
to as "RECEIVABLES");
(ii) goods, merchandise and other personal property, wherever
located, to be furnished under any contract of service or
held for sale or lease, all raw materials, work in
process, finished goods and materials and supplies of any
kind, nature or description which are or might be used or
consumed in our business or used in connection with the
manufacture, packing, shipping, advertising, selling or
finishing of such goods, merchandise and other personal
property including without limitation such goods which
give rise to any Receivables and which goods have been
returned to or repossessed or stopped in transit by us
("INVENTORY");
(iii) tangible goods (other than Inventory), equipment and
fixtures including without limitation office machines,
tools, dies, furniture, and vehicles together with all
accessions, parts and appurtenances thereto appertaining
or attached or kept or used or intended for use in
connection therewith, and all substitutions, renewals,
improvements and replacements of and additions thereto
(sometimes hereinafter individually and collectively
referred to as "EQUIPMENT");
(iv) general intangibles, including without limitation, tax
refunds, tax refund claims, trade names, trade marks,
choses-in-action, copyrights, patents and licenses
("GENERAL INTANGIBLES");
(v) property now or at any time hereafter in our possession
(including monies, deposit accounts, claims and credit
balances); and
(vi) books, blueprints, drawings and records related to any of
the foregoing as described in subsection (i) through (v)
above;
and all proceeds (including proceeds of any insurance policies) and products of
and accessions to all the foregoing described property in which we may have any
right, title or interest.
(B) "DEFAULT" shall have the meaning set forth in Paragraph 11 of
this Agreement.
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(C) "INDEBTEDNESS" means all of our present and future obligations,
liabilities, debts, claims and indebtedness, contingent, fixed or otherwise,
however evidenced, created, incurred acquired, owing or arising, whether under
written or oral agreement, operation of law, or otherwise, and includes, without
limiting the foregoing (i) Obligations, (ii) obligations and liabilities of any
Person secured by a lien, claim, encumbrance, or security interest upon property
owned by us, even though we have not assumed or become liable therefor, (iii)
obligations and liabilities created or arising under any lease (including
capitalized leases) or conditional sales contract or other title retention
agreement with respect to property used or acquired by us, even though the
rights and remedies of the lessor, seller or lender are limited to repossession,
(iv) all unfunded pension fund obligations and liabilities, and (v) deferred
taxes.
(D) "OBLIGATIONS" means all present and future loans, advances,
debts, liabilities, obligations, covenants, duties and Indebtedness owing by us
to you, whether evidenced by any note, or other instrument or document, whether
arising from an extension of credit, opening of a letter of credit, loan,
guaranty, indemnification or otherwise, whether direct or indirect (including,
without limitation, those acquired by assignment and any participation by you in
our debts owing to others), absolute or contingent, due or to become due,
including, without limitation, all interest, charges, expenses, fees, attorneys'
fees and any other sums chargeable to us hereunder or under any other agreement
with you.
(E) "OBLIGOR" means us or any guarantor of the Obligations,
individually or collectively.
(F) "PERSON" means any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, government, or any agency or political division thereof, or any
other entity.
(G) "PRIME RATE" means the Prime Rate published from day to day in
The Wall Street Journal in its "Money Rates" column as the "Prime Rate," should
such publication not continue to publish the Prime Rate or a substitute rate
then you will select a comparable announced rate. The interest rate charged for
any loan based upon the Prime Rate will change at any time the prime rate
changes.
(H) "SENIOR LIEN" means any and all liens, encumbrances and claims
upon the Collateral in favor of Citizens Bank of Massachusetts (successor in
interest to State Street Bank and Trust Company) or any lender which has
refinanced the Senior Indebtedness ("CITIZENS BANK").
(I) "SENIOR INDEBTEDNESS" means all loans advanced to us by
Citizens Bank, or any lender which has refinanced such loans, and all costs and
expenses related thereto.
(J) Any accounting terms used in this Agreement, unless otherwise
indicated, shall have the meanings customarily given to them in accordance with
generally accepted accounting principles.
(K) All other terms contained in this Agreement, unless otherwise
indicated, shall have the meanings provided by the Uniform Commercial Code of
the state set forth in Paragraph 14(B) ("CODE") to the extent the same are
defined therein.
2. LOANS AND COLLATERAL.
(A) Loan advances. Subject to the terms of this Agreement, you may,
in your sole discretion and upon our request, make loan
advances to us from time to time.
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You may, in your sole discretion and without notice to us,
disburse any or all of the proceeds of any or all of the
advances made by you to such person or persons as you deem
necessary to insure that the security interest in or lien upon
the Collateral shall at all times have the priority represented
by us in this Agreement.
(B) Promissory Notes. Loans under this Agreement shall be evidenced
by promissory notes executed by us, in form satisfactory to
you, and shall be payable at your principal place of business.
Interest and principal payable by us under such promissory
notes shall be paid at the times, in the amounts, on the terms
and at the rates set forth in the applicable promissory note.
All amounts owing to you as evidenced by the promissory notes
or otherwise shall constitute part of the Obligations.
(C) Interest and Other Charges. We shall pay you interest on the
daily outstanding balance of the various notes at a rate equal
to the Prime Rate plus 1.5%. In addition, we shall also pay you
on the first day of each month, with respect to the prior
calendar month or portion thereof 1/12 of one percent of the
amount of the loans not utilized. In no event whatsoever shall
the interest rate and other charges charged hereunder exceed
the highest rate permissible under any law which a court of
competent jurisdiction shall, in the final determination, deem
applicable hereto. In the event that a court determines that
you have received interest or other charges hereunder in excess
of the highest rate applicable hereto, you shall promptly, in
your sole discretion, either apply such amount to the
Obligations or refund such amount to us and the provisions
herein shall be deemed amended to provide for such permissible
rate.
(D) Term. The Term of this Agreement and of loans shall be on
demand, but if demand is not made, then no later than December
31, 2000.
(E) Monthly Accounting. You will provide us, monthly, with an
account of advances, charges and payments made pursuant to this
Agreement. Such account shall be deemed correct, accurate and
binding upon us, unless we notify you in writing to the
contrary within thirty (30) days after each account is
rendered.
(F) Collateral. As security for the Obligations, we hereby grant
you a continuing security interest in the Collateral, subject
only to the prior interest of the Senior Lien. We acknowledge
that nothing contained in this Agreement shall be (i) construed
as your agreement to resort or look to a particular type of
Collateral as security for any loan to us, or limit in any way
your right to resort to any or all of the Collateral as
security for any of the Obligations, or (ii) deemed to limit or
reduce any security interest in or lien upon any portion of the
Collateral for the Obligations.
3. PERFECTION OF SECURITY INTEREST; PROTECTION OF SECURITY
INTEREST. We shall, at our expense, perform all steps requested by you at any
time to perfect, maintain, protect, and enforce your security interest in the
Collateral, including, without limitation, executing and filing financing or
continuation statements, and amendments thereof, in form and substance
satisfactory to you, placing notations on our books of account to disclose your
security interest therein, and taking such other steps as are deemed necessary
by you to maintain your control of and security interest in the Collateral. You
may file, without our signature, one or more financing statements disclosing
your security interest under this Agreement. We agree that a carbon,
photographic, photostatic, or other reproduction of this Agreement or of a
financing statement is sufficient as a financing statement. If any Collateral is
at any time in the possession or control of any warehouseman, bailee or any of
our agents or
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processors, we shall notify such person of your security interest in such
Collateral and, upon your request, instruct them to hold all such Collateral for
your account subject to your instructions. From time to time, we shall, upon
your request, execute and deliver confirmatory written instruments pledging to
you the Collateral, but our failure to do so shall not affect or limit your
security interest or other rights in and to the Collateral. Until all
Obligations have been fully satisfied, your security interest in the Collateral
shall continue in full force and effect.
4. CHARGES AND INSURANCE.
(A) You may, in your discretion, at any time discharge any lien or
encumbrance or bond the same, pay any insurance, pay any service bureau, or
obtain any record and charge the cost thereof to our loan account.
(B) At your request, we shall insure the Collateral in your name
against loss or damage by fire, theft, burglary, pilferage, loss in transit and
such other hazards as you shall specify in amounts, under policies and by
insurers acceptable to you. Each policy shall include a provision for thirty
(30) days prior written notice to you of any cancellation or substantial
modification and shall show you as mortgagee and loss payee in a manner
acceptable to you. All premiums shall be paid by us and the policies shall be
delivered to you. If we fail to do so, you may (but shall not be required to)
procure such insurance at our expense.
5. EXAMINATION OF RECORDS; REPORTING.
(A) You may at all reasonable times have access to, examine, audit,
make extracts from and inspect our records, files, books of account and the
Collateral. We will deliver to you any instrument necessary for you to obtain
records from any service bureau maintaining records for us. All instruments and
certificates prepared by us showing the value of any of the Collateral shall be
accompanied, upon request, by copies of related purchase orders and invoices.
You may, at any time after default, remove from our premises our books and
records or require us to deliver them to you and you may, without expense to
you, use such of our personnel, supplies and premises as may be reasonably
necessary for maintaining or enforcing your security interest.
(B) We shall furnish you, upon request, information and statements
showing our business affairs, financial condition and the results of our
operations. We will provide you within thirty (30) days after the end of each
calendar quarter, our internally prepared income statement and balance sheet
prepared on a basis consistent with such statement prepared in prior months and
in accordance with generally accepted accounting principles, and within ninety
(90) days after the end of each of our fiscal years, our financial statements
prepared by our independent, certified public accountants prepared in accordance
with generally accepted accounting principles applied on a basis consistent with
prior year-end statements (said interim and year-end financial statements
hereinafter referred to as "FINANCIALS").
6. OTHER LIENS. We represent and warrant that all Collateral is
and will continue to be owned by us free and clear of all liens, claims and
encumbrances whatsoever, except for the Senior Lien, whether prior or
subordinate to the liens we have granted you and that we will not, subject to
the terms of the Senior Indebtedness, without your prior written approval, which
may be withheld in your sole discretion, sell, encumber or dispose of or permit
the sale, encumbrance or disposal of any Collateral, except for sales of
inventory in the ordinary course of business.
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7. GENERAL WARRANTIES AND REPRESENTATIONS.
We warrant and represent that:
(A) We are duly organized and existing in good standing under the
laws of Minnesota, are qualified to do business and are in good standing in all
states in which qualification and good standing are necessary in order for us to
conduct our business and own our property and have all requisite power and
authority to conduct our business, to own our property and to execute, deliver
and perform all of our Obligations;
(B) We have not, during the preceding five (5) years, been known by
or used any other assumed names;
(C) The execution, delivery and performance by us of this Agreement
will not constitute a violation of any applicable law or of our Articles of
Incorporation, By-Laws or any agreement, or document to which we are a party or
bound, except for the Senior Indebtedness;
(D) We possess adequate assets, licenses, patents, patent
applications, copyrights, trademarks, trademark applications, and tradenames for
the conduct of our business;
(E) We have capital sufficient to conduct our business, are solvent
and able to pay our debts as they mature and own property having a fair value
greater than the amount required to pay our debts;
(F) Except for trade payables arising in the ordinary course of our
business, we have (i) no pending or threatened litigation, actions or
proceedings which would materially and adversely affect our business assets,
operations or condition, financial or otherwise, or the Collateral and (ii) no
Indebtedness, other than the Obligations and the Senior Indebtedness;
(G) We have good, indefeasible, and merchantable title to the
Collateral, and there is no lien or encumbrance thereon other than the security
interest granted to you, except for the Senior Lien;
(H) We are not a party to any contract, or subject to any charge,
corporate restriction, judgment, decree or order materially and adversely
affecting our business, assets, operations or condition, financial or otherwise,
and are not subject to any labor dispute; and, no labor contract is scheduled to
expire during the term of this Agreement, except as heretofore disclosed to you
in writing;
(I) We are not in violation of any applicable statute, regulation
or ordinance, in any respect materially and adversely affecting the Collateral
or our business, assets, operations or condition, financial or otherwise;
(J) Other than the Senior Indebtedness, we are not in default with
respect to any note, indenture, loan agreement, mortgage, lease, deed or other
agreement to which we are a party or bound;
(K) The financial statements delivered to you fairly present our
financial condition and results of operations and those of such other Persons
described therein as of the date thereof; and there has been no material and
adverse change in such financial condition or operations since the date of the
statements;
(L) We have received no notice that we are not in full compliance
with any of the requirements of the Employee Retirement Income Security Act of
1974, as amended,
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("ERISA") and its regulations and, to the best of our knowledge, there exists no
event described in Section 4043 of ERISA, excluding subsections 4043(b)(2) and
4043(b)(3) thereof, with respect to us;
(M) We have filed all tax returns and other reports we are required
by law to file and have paid all taxes and similar charges that are due and
payable;
(N) Our chief executive office, principal place of business and the
location of collateral records is at 000 Xxxxxx 00 Xxxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx 00000;
(O) We have not received any notice alleging and are not aware of
any facts indicating noncompliance with any state or federal law governing the
use, generation, storage or release of any hazardous waste or substance;
8. AFFIRMATIVE COVENANTS. We covenant that, so long as any
Obligations remain outstanding and this Agreement is in effect, we shall:
(A) Pay to you on demand all fees and expenses which you incur in
connection with (i) the forwarding of loan proceeds, (ii) the processing of loan
advances, (iii) the establishment and maintenance of any lock box and of all
other accounts created in connection with the transaction contemplated hereby,
and (iv) the examination of the Collateral;
(B) Promptly file all tax returns and other reports which we are
required to file and promptly pay all taxes, assessments and other charges;
(C) Promptly notify you in writing of any litigation affecting us,
whether or not the claim is covered by insurance, and of any suit or
administrative proceeding which may materially and adversely affect the
Collateral or our business, assets, operations or condition, financial or
otherwise;
(D) Notify you in writing (i) promptly upon the occurrence of any
event described in Section 4043 of ERISA, other than a termination, partial
termination or merger of a "Plan" (as defined in ERISA) or a transfer of a
Plan's assets, and (ii) prior to any termination, partial termination or merger
of a Plan or a transfer of a Plan's assets;
(E) Give you thirty (30) days prior written notice of our opening
or closing any place of business;
(F) Maintain our corporate existence and our qualification and good
standing in all states necessary to conduct our business and own our property
and maintain adequate assets, licenses, patents, copyrights, trademarks and
tradenames to conduct our business;
(G) Promptly notify you in writing of any labor dispute to which we
are or may become subject and the expiration of any labor contract to which we
are a party or bound;
(H) Promptly notify you in writing of any violation of any law,
statute, regulation or ordinance of any governmental entity, or of any agency
thereof, applicable to us which may materially and adversely affect the
Collateral or our business, assets, operations or condition, financial or
otherwise;
(I) Notify you in writing within five (5) business days of our
default under any note, indenture, loan agreement, mortgage, lease, or other
agreement to which we are a party or bound;
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(J) Promptly notify you in writing of any default under any
Indebtedness or indebtedness owing to us;
(K) Promptly notify you in writing of the making of any capital
expenditures materially affecting our business, assets, operations or
conditions, financial or otherwise;
(L) Execute and deliver to you, upon request, such documents and
agreements as you may, from time to time, reasonably request to carry out the
terms and conditions of this Agreement;
(M) Promptly, and in any event within five (5) days of the receipt
thereof, deliver any communication in any way concerning any act or omission on
our part regarding the use, generation, storage or release of a hazardous waste
or substance. We agree to indemnify and hold you harmless from any and all loss,
damage, cost, liability or expense (including reasonable attorney fees) arising
out of our use, generation, storage or release of any hazardous waste or
substance;
(N) Promptly, and in any event within five (5) days of the receipt
thereof, deliver to you a copy of any communication from the Federal Department
of Labor concerning any alleged act or omission on our part in connection with
the payment of minimum and/or overtime wages to an employee;
(O) Promptly, and in any event within five (5) days of the receipt
thereof, deliver to you a copy of any communication concerning any violation of
a state or Federal law which could result in the forfeiture of the Collateral;
and
(P) Maintain the liens and security interests granted to you,
subordinate only to the Senior Indebtedness.
9. NEGATIVE COVENANTS. Without your prior written consent, we
covenant that, so long as any Obligations remain outstanding and this Agreement
is in effect, we shall not:
(A) Merge or consolidate with or acquire any other Person;
(B) Declare or pay cash dividends upon any of our stock or
distribute any of our property or make (except in the ordinary course of
business) any loans or extensions of credit, or investments in, any Person, or
redeem, retire, purchase or acquire, directly or indirectly any of our stock,
other than pursuant to employee incentive or stock purchase plans, or make any
material change in our capital structure or in our business or operations which
might adversely affect the repayment of the Obligations;
(C) Enter into any transaction which materially and adversely
affects the Collateral or our ability to repay the Obligations;
(D) Become liable for the indebtedness of any Person, except by
endorsement of instruments for deposit;
(E) Incur Indebtedness, other than trade payables arising in the
ordinary course of our business, the Senior Indebtedness and the Obligations;
(F) Make a sale to any customer on a xxxx-and-hold, guaranteed
sale, sale and return, sale on approval, consignment, or any other repurchase or
return basis;
(G) Use any other corporate or fictitious name; or
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(H) Prepay any Indebtedness.
10. TERMINATION. Either party shall have the right to terminate
this Agreement at any time hereafter by giving the other party written notice by
registered or certified mail not less than sixty (60) days prior to the
effective date of such termination. Upon the effective date of termination, all
Obligations shall become immediately due and payable.
11. DEFAULT. Any one or more of the following events shall
constitute a default ("DEFAULT") under this Agreement: (a) we shall fail to pay
when due, or breach, any Obligations, or (b) we shall (i) become insolvent, (ii)
generally not pay our respective debts as they become due, (iii) make an
assignment for the benefit of creditors, or (iv) make any misrepresentation to
you or fail to observe or perform any covenants or conditions in connection with
this Agreement or any other instrument related to the loan hereto, or (c) there
shall be filed by or against us a petition in bankruptcy for liquidation or for
reorganization, or a custodian, receiver or agent is appointed or authorized to
take charge of its properties, or we authorize any such action, or (d) there
hereafter occur any material and adverse change in the business, assets,
operations and condition, financial or otherwise, or (e) we shall be in default
under any agreement to which we are a party, or (f) any guaranty of the
Obligations shall be terminated or revoked.
We acknowledge that while there are events of default set forth above,
the Obligations are due upon demand, and if demand is not made, then the
Obligations are due and payable by December 31, 2000. Demand may occur with or
without there being an event of default.
12. YOUR RIGHTS AND REMEDIES.
(A) If a Default occurs under this Agreement or any other document
or instrument executed by the undersigned, you may, at your election, without
notice of your election and without demand, do any one or more of the following:
(a) declare our Obligations, whether evidenced by a revolving credit note, a
demand note or otherwise, to be immediately due and payable; (b) stop advancing
money or extending credit to or for our benefit under the Agreement; (c)
exercise any and all of the rights accruing to a secured party under the Code
and any other applicable law; (d) take possession of the Collateral and keep it
on our premises, at no cost to you, or remove any part of it to such other
place(s) as you may desire or we shall, upon your demand, at our cost, assemble
the Collateral and make it available to you at a place reasonably convenient to
you.
(B) You may sell and deliver any Collateral at public or private
sales, for cash, upon credit or otherwise, at such prices and upon such terms as
you deem advisable, at your discretion, and may, if you deem it reasonable,
postpone or adjourn any sale of the Collateral by an announcement at the time
and place of sale of such postponed or adjourned sale without giving a new
notice of sale. We agree that you have no obligation to preserve rights to the
Collateral or xxxxxxxx any Collateral for the benefit of any Person. You are
hereby granted a license or other right to use, without charge, our labels,
patents, copyrights, name, trade secrets, trade names, trademarks and
advertising matter, or any similar property, in completing production,
advertising or selling any Collateral and our rights under all licenses and all
franchise agreements shall inure to your benefit. Any requirement of reasonable
notice shall be met if such notice is mailed postage prepaid to us at our
address set forth below at least five (5) days before sale or other disposition.
The proceeds of sale shall be applied first to all expenses of sale, including
attorneys' fees, and second to (in whatever order you elect) all Obligations.
You will return any excess to us and we shall remain liable for any deficiency.
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(C) IN THE EVENT OF A DEFAULT HEREUNDER, WE HEREBY WAIVE ALL RIGHTS
TO NOTICE AND HEARING PRIOR TO THE EXERCISE BY YOU OF YOUR RIGHTS TO REPOSSESS
THE COLLATERAL WITHOUT JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON SUCH
COLLATERAL WITHOUT NOTICE OR HEARING AND ALL RIGHTS OF SET-OFF AND COUNTERCLAIM
AGAINST YOU.
13. WAIVER; AMENDMENTS; SUCCESSORS AND ASSIGNS. Your failure to
exercise any right, remedy or option under this Agreement or other agreement
between you and us or delay by you in exercising the same will not operate as a
waiver. No waiver by you will be effective unless in writing and then only to
the extent stated. No waiver by you shall affect your right to require strict
performance of this Agreement. Your rights and remedies will be cumulative and
not exclusive. This Agreement cannot be changed or terminated orally. All terms,
conditions, promises, covenants, provisions and warranties shall inure to the
benefit of and bind your and our respective representatives, successors and
assigns.
14. MISCELLANEOUS.
(A) If any provision of this Agreement shall be prohibited or
invalid, under applicable law, it shall be ineffective only to such extent,
without invalidating the remainder of this Agreement.
(B) This Agreement shall be interpreted in accordance with the
governing law of the state of Georgia.
(C) All of our representations and warranties contained in this
Agreement shall survive the execution, delivery and acceptance thereof by the
parties.
(D) No termination of this Agreement or of any guaranty of the
Obligations shall affect or impair the powers, obligations, duties, rights,
warranties, representations or liabilities of the parties hereto and all shall
survive such termination.
(E) Each Obligation may, in your discretion, be evidenced by notes
or other instruments issued or made by us to you. If not so evidenced, such
Obligation shall be evidenced solely by entries upon your books and records.
(F) All Obligations shall constitute one loan secured by the
Collateral. You may, in your sole discretion, subject to the Senior
Indebtedness: (i) exchange, enforce, waive or release any of the Collateral or
(ii) apply Collateral and direct the order or manner without affecting your
right to take any other action with respect to any other Collateral.
(G) You shall have the continuing and exclusive right to apply or
reverse and re-apply any and all payments to any portion of the Obligations. To
the extent that we make a payment or you receive any payment or proceeds of the
Collateral for our benefit, which are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
debtor in possession, receiver or any other party under any bankruptcy law,
common law or equitable cause, then, to such extent, the Obligations or part
thereof intended to be satisfied shall be revived and continue as if such
payment or proceeds had not been received by you.
(H) We shall reimburse you for all expenses incurred or to be
incurred by you in connection with (a) the negotiation, preparation and closing
of this Agreement; (b) the protection, perfection or preservation of your
security interest in or lien upon the Collateral; (c) your inspection or
verification of the Collateral; (d) any court or bankruptcy proceeding relating
to the Agreement or any claim or action by any Person against you which would
not have been asserted were it not for your relationship with us hereunder or
otherwise; (e) actions taken with
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respect to the Collateral and your security interest or lien therein; and (f)
enforcement of any of your rights and remedies with respect to the Obligations
or Collateral. The foregoing expenses shall include, without limitation: (i)
reasonable fees, costs and expenses of your attorneys and paralegals; (ii)
interest on the foregoing at the highest applicable interest rate provided under
this Agreement, which shall be part of the Obligations, payable on demand and
secured by the Collateral. In recognition of your right to have all your
expenses incurred or to be incurred in connection with this Agreement and the
fees due you secured by the Collateral, you shall not be required to record any
discharge of your lien or termination of your security interest unless and until
we deliver to you a general release acceptable to you.
(I) We agree to give you written notice of any action or omission
by you or your agents in connection with this Agreement that may be actionable
against you or that may be a defense to payment of the Obligations for any
reasons. We further agree that unless such a notice specifically describing the
action or omission is given by us within thirty (30) days after we have
knowledge or with the exercise of reasonable diligence should have had knowledge
of the occurrence of said action or omission we shall not assert, and we shall
be deemed to have waived, any claim or defense arising therefrom.
(J) If you shall breach your obligation under this Agreement to
make an advance under the terms of this Agreement, notwithstanding our
conformance with the provisions thereof, we agree that our sole remedy on
account thereof shall be to recover liquidated damages on account of such
breach, computed as hereinafter provided, in recognition of the fact that the
damages which we might incur are uncertain and speculative. Liquidated damages
to which we shall be entitled shall be equal to sixty (60) times the interest
payable for one day on the loans outstanding as of the day that you are deemed
to have failed to fund. In any event, you shall never be liable to us for
special, indirect and consequential damages, whatever the nature of your breach
hereunder.
(K) We authorize and direct you to disburse, for our account, the
proceeds of loans made by you to us to such Person as any of our officers or
directors shall direct, whether in writing or orally.
(L) Any notice required hereunder shall be in writing, and
addressed to the party to be notified as follows:
If to you, to: Xxxxxxx X. X'Xxxxxx
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
If to us, to: Eltrax Systems, Inc.
000 Xxxxxx 00 Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, III, CFO
or to such other address as each party may designate for itself by like notice.
(M) We represent and warrant to you that, with respect to the
financing transaction herein contemplated, no Person is entitled to any
brokerage fee or other commission and we agree to indemnify and hold you
harmless against any and all such claims.
(N) The paragraph titles contained in this Agreement are without
substantive meaning and are not part of the Agreement.
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11
(O) You acknowledge that you have been given full access to all of
the documents pertaining to the Senior Indebtedness and Senior Lien and
understand fully that our ability to repay the Obligations, as well as secure
the Collateral, is circumscribed by the terms and conditions of such documents.
15. WAIVER OF JURY TRIAL. Our legal counsel has advised us that (i)
there may be a constitutional right to a jury trial in connection with any
claim, dispute or lawsuit arising out of this Agreement and (ii) such
constitutional right may be waived. After consultation with our counsel (which
has included our counsel's review of this Agreement), we believe that it is in
our best interest in this commercial transaction to waive such right.
Accordingly, we hereby waive our right to a jury trial, and further agree that
the best forum for hearing any claim, dispute or lawsuit, if any, arising in
connection with this Agreement or our relationship with you, shall be a court of
competent jurisdiction sitting without a jury.
16. NO ORAL AGREEMENTS. We acknowledge that this Agreement
represents the final agreement between you and us and the terms of such
documents may not be contradicted by evidence of prior, contemporaneous, or
subsequent oral agreements that may have or will be exchanged between you
(including your officers, employees and agents) and us.
Very truly yours,
ELTRAX SYSTEMS, INC.
a Minnesota corporation
By: /s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx, President
Accepted on December 30, 1999:
/s/ Xxxxxxx X. X'Xxxxxx
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Xxxxxxx X. X'Xxxxxx
