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EXHIBIT 10.18
AMENDMENT TO CREDIT AGREEMENTS
THIS AMENDMENT ("Amendment") made as of October 13, 1995, between ECC
INTERNATIONAL CORP. ("ECC"), ECC SIMULATION LIMITED ("Simulation") and FIRST
FIDELITY BANK, NATIONAL ASSOCIATION ("Bank").
Background
Bank and ECC entered into a certain Term Loan and Revolving Credit
Agreement dated as of September 20, 1994 (as amended to date, the "ECC Credit
Agreement") relative to, inter alia, a Revolver (the "ECC Revolver"), as more
fully set forth therein, the terms of which are incorporated herein by
reference. Bank and Simulation entered into a certain Revolving Credit
Agreement dated as of September 20, 1994 (as amended to date, the "Simulation
Credit Agreement") relative to a Revolver (the "Simulation Revolver"), as more
fully set forth therein, the terms of which are incorporated herein by
reference. The parties desire to amend the ECC Credit Agreement and the
Simulation Credit Agreement in the manner hereinafter provided.
NOW, THEREFORE, the parties, INTENDING TO BE LEGALLY BOUND, agree as
follows:
1. Maximum Principal Amount of ECC Revolver. Effective October 13,
1995 and notwithstanding Section A.2.b. of the ECC Credit Agreement to the
contrary, the maximum aggregate principal amount of advances, including the
face amount of Letters of Credit (as defined in the ECC Credit Agreement), to
be outstanding at any time under the ECC Revolver (the "Maximum Principal
Amount") shall be an amount which, when taken together with the principal
amount of cash advances and the face amount of letters of credit outstanding
under the Simulation Revolver, is not greater than $15,000,000.
2. Maximum Principal Amount of Simulation Revolver. Effective October
13, 1995 and notwithstanding Section A.1.b. of the Simulation Credit Agreement
to the contrary, the Maximum Principal Amount (as defined in the Simulation
Credit Agreement) of advances, including the face amount of letters of credit,
to be outstanding at any time under the Simulation Revolver shall be an amount
which is equal to the lesser of (i) $4,000,000 or (ii) an amount which, when
taken together with the principal amount of cash advances and the face amount
of letters of credit outstanding under the ECC Revolver, is not greater than
$15,000,000.
3. Currency Fluctuations. Notwithstanding Section A.1.i. of the
Simulation Credit Agreement to the contrary, if due solely to fluctuations in
the exchange rate for Dollars and Pounds
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Sterling, the Equivalent Dollar Amount (as defined in the Simulation Credit
Agreement) of outstanding cash advances and the face amount of outstanding
letters of credit made in Pounds Sterling, when taken together with outstanding
cash advances and the face amount of outstanding letters of credit made in
Dollars under the Simulation Credit Agreement, exceeds $4,000,000 but does not
exceed $4,400,000, Simulation need not repay such excess until the Expiration
Date, provided, that if the same exceeds $4,400,000 or if the Equivalent Dollar
Amount of outstanding cash advances and the face amount of outstanding letters
of credit made in Pounds Sterling, when taken together with the sum of
outstanding cash advances and the face amount of outstanding letters of credit
made in Dollars and the principal amount of cash advances and the face amount of
credit outstanding under the ECC Revolver, exceeds $15,000,000, Simulation will
repay the principal of the Simulation Revolver in the amount of such excess
within one (1) Business Day after notice thereof from Bank.
4. Simulation Letters of Credit. Bank agrees that advances under the
Simulation Revolver may, if requested by Simulation, be in the form of one or
more letters of credit (each a "Letter of Credit" and, collectively, the
"Letters of Credit"), subject to the following terms:
a. Upon the request of Simulation made to Bank not later than
ten (10) Business Days prior to the date on which Simulation requests that a
Letter of Credit be issued hereunder, Bank shall under and subject to the terms
and conditions hereof issue standby letters of credit under the Revolver for
the account of Simulation from time to time through but not including the
Expiration Date, up to an aggregate face amount (the "LC Sublimit") at any time
outstanding equal to $500,000. letters of Credit issued hereunder shall be
under such terms, including provisions for draw and expiration date, as shall
be acceptable to Bank in its discretion, and shall be available only for the
purpose of securing rental obligations of Simulation for leased locations.
Letters of Credit shall be denominated in Dollars or Pounds Sterling.
b. Bank shall have the right, in its absolute discretion and
whether or not an Event of Default has occurred or is continuing under the
Simulation Credit Agreement, to provide the beneficiary of any of the Letters
of Credit with notice of non-renewal in accordance with the provisions, if any,
of the Letters of Credit relating thereto.
c. Simulation agrees to provide Bank with Cash Collateral
(meaning for all purposes hereof cash in Dollars) in the following amounts upon
the following events:
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(1) On the Expiration Date, Simulation will provide
Bank with Cash Collateral in an amount equal to
the face amount of all Letters of Credit then
outstanding;
(2) If at any time the face amount of Letters of
Credit then outstanding exceeds the LC Sublimit,
Simulation will at such time provide Bank with
Cash Collateral in an amount equal to the
aggregate of such excess;
(3) Upon the occurrence of an event of Default,
Simulation will provide Bank with Cash Collateral
in an amount equal to the aggregate face amount of
all outstanding Letters of Credit.
d. Cash Collateral provided to Bank pursuant to subparagraph
c. above shall be held by Bank as security for the prompt satisfaction of all
of the Liabilities (as defined in the Simulation Credit Agreement), and shall
be deemed to be "Collateral" for all purposes of the Simulation Credit
Agreement.
e. Reimbursement of Letters of Credit Disbursements.
Simulation agrees to reimburse Bank for the amount of each payment by Bank
under any Letter of Credit (a "Letter of Credit Disbursement") made by Bank on
the date (the "Letter of Credit Disbursement Date") on which the Letter of
Credit Disbursement was made. Such obligation of Simulation to reimburse Bank
for any such Letter of Credit Disbursement is herein referred to as a
"Reimbursement Obligation." If any Reimbursement Obligation is not paid in full
by Simulation to Bank on the corresponding Letter of Credit Disbursement Date
(for this purpose payments received by Bank after 1:30 p.m., Philadelphia,
Pennsylvania time on any Business Day shall be deemed to have been made on the
next succeeding Business Day), the unpaid amount of such Reimbursement
Obligation shall bear interest for each day from the corresponding Letter of
Credit Disbursement Date until payment in full thereof (after, as well as
before, judgment), payable on demand, at the Default Rate (as defined in the
Revolving Credit Note to be executed pursuant to Section 6.b. hereof).
f. Letter of Credit Charges and Fees. Simulation agrees to
pay on demand to Bank, with respect to the amendment or transfer of any Letter
of Credit and each drawing made under any Letter of Credit, documentary and
processing fees and charges in accordance with Bank's fees and charges in
effect at the time of such amendment, transfer or drawing, as the case may be.
Also, a letter of credit fee will be payable by Simulation in the amount of 1%
of the face amount of each Letter of Credit, payable upon issuance thereof and
on each anniversary thereof.
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g. Obligations Absolute. All Reimbursement Obligations of
Simulation arising from Letter of Credit Disbursements shall be unconditional
and absolute and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances whatsoever including, without limitation, the
following circumstances: (i) any lack of validity or enforceability of any
Letter of Credit; (ii) the existence of any claim, set-off, defense or other
right which Simulation may have at any time against any beneficiary or any
transferee of any Letter of Credit (or any person for whom any such beneficiary
or transferee may be acting), or any other person, whether in connection with
the Simulation Credit Agreement, the transactions contemplated therein or any
unrelated transaction (including any underlying transaction between Simulation
or any of its subsidiaries or affiliates and the beneficiary for which any
Letter of Credit was procured); (iii) any draft, demand, certificate or any
other document presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect, except to the extent Simulation
proves that such payment constituted negligence or willful misconduct on the
part of Bank; or (iv) payment by Bank under any Letter of Credit against
presentation of a demand, draft, certificate or other document which does not
comply with the terms of the Letter of Credit, except to the extent that
Simulation proves that such payment constituted negligence or willful
misconduct on the part of Bank; (v) the failure or delay on the part of Bank in
giving any notice hereunder; (vi) any draw thereunder being a consequence of
Bank's non-renewal of any Letter of Credit; or (vii) any other circumstance or
happening whatsoever, whether similar or dissimilar to any of the foregoing.
h. Indemnification; Nature of Duties.
(1) In addition to amounts payable as elsewhere
provided in the Simulation Credit Agreement and/or
in this Amendment, Simulation hereby indemnifies
and holds harmless Bank from and against any and
all claims, damages, losses, liabilities, costs or
expenses whatsoever which Bank may incur (or which
may be claimed against Bank by any person) by
reason of or in connection with the issuance or
transfer of, or payment or failure to pay under,
any Letter of Credit, or the involvement by Bank in
any suit, proceeding or action as a consequence,
direct or indirect, of Bank's issuance of any
Letter of Credit, except for any such claims,
damages, losses, liabilities, costs or expenses to
the extent, but only to the extent, which
Simulation proves were caused by the gross
negligence or
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willful misconduct of Bank in determining whether
a certificate, draft, statement or document
presented under any Letter of Credit complied with
the terms of the Letter of Credit.
(2) As between Simulation and Bank, Simulation assumes
all risks of the act or omissions of the
beneficiary or any transferee of any Letter of
Credit with respect to such beneficiary's or
transferee's use of the Letter of Credit. Bank
shall not be liable or responsible for: (A) the use
which may be made of any Letter of Credit or the
proceeds of any drawing thereunder or for any
acts or omissions of the beneficiary or any
transferee in connection therewith; (B) the
validity, sufficiency or genuineness of
certificates, drafts or documents presented under
any Letter of Credit that appear on their face to
be in order, or of any endorsement thereon, even if
any of the same should in fact prove to be in any
or all respects invalid, insufficient, fraudulent
or forged; (C) payment by Bank under any Letter of
Credit against presentation of drafts, certificates
or documents which do not comply with the terms of
the Letter of Credit, including failure of any such
drafts, certificates or documents to bear any
reference or adequate reference to the Letter of
Credit, or for any failure of the beneficiary of
any Letter of Credit otherwise to comply fully with
the conditions required in order to draw under the
Letter of Credit; (D) the validity or sufficiency
of any instrument transferring or assigning or
purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or the
proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason;
or (E) any other circumstances whatsoever in making
or failing to make payment under any Letter of
Credit, except only that Bank shall be liable to
Simulation to the extent, but only to the extent,
of any direct, as opposed to consequential, damages
suffered by Simulation which Simulation proves were
caused by Bank's gross negligence or willful
misconduct in connection with the matters referred
to in clauses (B) through (E) above. In
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furtherance and not in limitation of the foregoing,
Bank may accept drafts, certificates or documents
presented to it under any Letter of Credit that
appear on their face to be in order, without
responsibility for further investigation,
regardless of any notice or information to the
contrary, and any action taken or omitted by Bank
under or in connection with any Letter of Credit,
if taken or omitted in good faith and without
willful misconduct or gross negligence, shall not
put Bank to any resulting liability to Simulation.
i. Payments to Bank. All payments to be made by Simulation to
Bank in respect of Reimbursement Obligations due from Simulation shall be
payable in Dollars on the day when due without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived, and an action
therefor shall immediately accrue.
j. Application. Simulation shall, as a condition to the
issuance by Bank of any Letter of Credit, execute and deliver to Bank Bank's
then standard Letter of Credit Application as Bank may require in connection
with the issuance of a Letter of Credit, provided, that in the event of any
express inconsistency between the terms of any such Application and the terms
hereof, the latter shall control.
5. Commitment Fee. Effective October 1, 1995, and in lieu of the
Commitment Fee payable by ECC under Section F.2. of the ECC Credit Agreement,
ECC shall pay to Bank an unused commitment fee in the amount of 1/4 of 1% of
the average unused portion of Bank's aggregate commitment under the ECC
Revolver and the Simulation Revolver, determined quarterly and payable in
arrears at the end of each such quarterly period.
6. Conditions. The obligation of Bank to increase the Maximum
Principal Amount of the Revolvers as set forth in Sections 1 and 2 hereof is
subject to the following conditions precedent:
a. ECC shall, concurrently herewith, execute and deliver to
Bank an amended and restated Revolving Credit Note in the face amount of
$15,000,000, which amended and restated Revolving Credit Note, together with
any attachments thereto and amendments, modifications or restatements thereof
or thereto, shall constitute the "Revolving Credit Note" for all purposes of
the ECC Credit Agreement and other Loan Documents referred to therein;
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b. Simulation shall, concurrently herewith, execute and deliver
to Bank an amended and restated Revolving Credit Note in the face amount of
$4,000,000, which amended and restated Revolving Credit Note, together with any
attachments thereto and amendments, modifications or restatements thereof or
thereto, shall constitute the "Revolving Credit Note" for all purposes of the
Simulation Credit Agreement and other Loan Documents referred to therein;
c. Each of ECC and Simulation shall, concurrently herewith,
deliver to Bank certified resolutions of its Board of Directors authorizing ECC
and Simulation, as applicable, to execute, deliver and perform this Amendment
and any documents required to be executed by it in connection herewith.
7. Reaffirmation. Except as specifically modified by this Amendment,
the ECC Credit Agreement and the Simulation Credit Agreement and all other Loan
Documents referred to in either thereof shall remain unchanged and in full
force and effect, and this Amendment shall be construed as supplemental
thereto, and each of ECC and Simulation hereby reaffirms all of its Liabilities
thereunder and agrees that the same are owing to Bank in accordance with the
terms thereof without off-set, counterclaim or defense of any nature. Each of
ECC and Simulation further reaffirms all guaranties, liens and security
interests heretofore granted by it to Bank pursuant to the Loan Documents,
including without limitation the liens, security interests and guaranties
granted pursuant to the Security Agreement dated September 20, 1994 among Bank,
ECC, ECC International, Inc. and Educational Computer Corporation International
("Security Agreement"), that certain Guarantee and Debenture dated September
20, 1994 executed and delivered by Simulation to Bank ("Guaranty and
Debenture") and that certain Guaranty and Surety Agreement dated September 20,
1994 from ECC, ECC International, Inc. and Educational Computer Corporation to
Bank ("Guaranty"); and agrees that the ECC Revolver and the Simulation
Revolver, as the Maximum Principal Amount of each thereof is amended pursuant
to Sections 1 and 2 hereof, and all Reimbursement Obligations of Simulation,
constitute a "Liability" for all purposes of said Security Agreement, a
"Secured Liability" for all purposes of said Guaranty and Debenture and a
"Liability" for all purposes of said Guaranty.
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IN WITNESS WHEREOF, the parties have executed this Amendment as
of the date first above written.
ECC INTERNATIONAL CORP.
By: /s/ X. X. Xxxxxx, CEO
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President/CEO
Attest: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Secretary/Treasurer
ECC SIMULATION LIMITED
By: /s/ X. X. Xxxxxx, Director
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
Attest: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Secretary/Treasurer
FIRST FIDELITY BANK,
NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
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JOINDER
Each of the undersigned consents to the foregoing Amendment, the terms
of which are incorporated herein by reference, and agrees with Bank that the
Revolver for ECC International Corp. and the Revolver for ECC Simulation
Limited, as the Maximum Principal Amount of each thereof is amended pursuant to
Sections 1 and 2 of the within Amendment, and all Reimbursement Obligations of
Simulation for letters of credit, constitute a "Liability" for all purposes of
(A) that certain Guaranty and Surety Agreement dated September 20, 1994
executed and delivered by Educational Computer Corporation International and
ECC International, Inc. to Bank, (B) that certain Guaranty and Surety Agreement
dated September 20, 1994 executed and delivered by Educational Computer
Corporation International, ECC International, Inc. and ECC International Corp.
to Bank, and (C) that certain General Security Agreement dated September 20,
1994 among Bank, ECC International Corp., Educational Computer Corporation
International and ECC International, Inc.
IN WITNESS WHEREOF, the undersigned have executed this Joinder this
13th day of October, 1995.
ECC INTERNATIONAL, INC.
By: /s/ X. X. Xxxxxx, CEO
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President/CEO
EDUCATIONAL COMPUTER CORPORATION
INTERNATIONAL
By: /s/ X. X. Xxxxxx, Director
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Director
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REVOLVING CREDIT NOTE
Obligation No.______________
October 13, 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx
$15,000,000
FOR VALUE RECEIVED, and intending to be legally bound hereby, the undersigned
Borrower, ECC International Corp., unconditionally promises to pay to the order
of FIRST FIDELITY BANK, NATIONAL ASSOCIATION (the "Bank"), the principal amount
of all advances that are now or may hereafter be made hereunder and that are
then outstanding, together with accrued, unpaid interest thereon and any unpaid
costs and expenses payable hereunder, on September 19, 1997.
A. Terms of Note.
1. Interest Payments. Interest on the principal balance hereof shall,
except as provided in subpart A.B. below, accrue at such rates and be
payable in accordance with Section A.2. of that certain Term Loan and
Revolving Credit Agreement dated September 20, 1994 between the Bank and
the Borrower, as amended to date, including by Amendment of even date
herewith (together with any exhibits thereto and amendments and
modifications thereto in effect from time to time, the "Loan Agreement").
2. Computation of Interest. Interest hereunder shall be computed daily on
the basis of a year of 360 days for the actual number of days elapsed.
All payments hereunder shall be made in lawful currency of the United
States of America and in immediately available funds at the Bank's
address set forth in the Loan Agreement or at such other address as the
Bank shall notify the Borrower of in writing.
3. Incorporation by Reference. This Note is the Revolving Credit Note
referred to in the Loan Agreement and is subject to the terms and
conditions thereof, which terms and conditions are incorporated herein,
including, without limitation, terms pertaining to definitions,
representations, warranties, covenants, events of default and remedies.
Any capitalized term used herein without definition shall have the
definition contained in the Loan Agreement.
4. Borrowing Requests; Crediting of Account. Any request for borrowing
pursuant to this Note shall be made by the Borrower in writing in the
form of a "Notice of Borrowing Under Revolving Credit" attached hereto as
Exhibit A and in accordance with the terms of the Loan Agreement. Unless
otherwise requested by the Borrower in writing at least one (1) Business
Day prior to the date of a requested advance, each advance hereunder
shall be made by crediting the Account as defined in the Loan Agreement
with the amount of the advance. All advances made by crediting the
Account or any other account of the Borrower at the Bank shall be
conclusively presumed to have been properly authorized by the Borrower.
5. Bank Records of Advance. The Bank may enter in its business records the
date and the amount of each advance, each conversion from one interest
rate basis to another and each payment made pursuant to this Note and the
Loan Agreement. The Bank's records of such advance, conversion or payment
shall, in the absence of manifest error, be conclusively binding upon the
Borrower. In the event the Bank gives notice or renders a statement by
mailing such notice or statement to the Borrower, concerning any such
advance, conversion or payment, or the amount of principal and interest
due on this Note, the Borrower agrees that, unless the Bank receives a
written notification of exceptions to this statement within forty-five
(45) calendar days after such statement or notice is mailed, the
statement or notice shall be an account stated, correct and acceptable
and binding upon the Borrower.
6. Advance Requests Exceeding Maximum Principal Amount. The Borrower shall
not request the Bank to make any advances under this Note or the Loan
Agreement which exceeds the Maximum Principal Amount set forth in Section
A.2.b. of the Loan Agreement. In the event that the principal balance
outstanding under this Note exceeds at any time the Maximum Principal
Amount, the Borrower shall immediately, and without demand from the Bank,
pay to the Bank the amount in excess thereof, and the Borrower agrees
that until such excess is paid to the Bank, this Note shall evidence and
be enforceable with respect to any and all amounts outstanding hereunder
including such excess.
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7. Application of Payments. All payments received on this Note shall be
applied first to the Bank's fees, costs and expenses which the Borrower
is obligated to pay pursuant to the terms hereof and under any other
Loan Document, then to accrued and unpaid interest and then to principal
or such payments may be applied in such other order as the Bank in its
sole discretion shall determine.
8. Default Rate. At the Bank's option, interest will be assessed on any
principal which remains unpaid at the maturity of this Note, whether by
acceleration or otherwise, or upon and following any Event of Default, at
a rate which is four percent (4%) higher than the rate otherwise charged
hereunder (the "Default Rate") provided that at no time shall the Default
Rate exceed the highest rate of interest allowed by law. Such Default
Rate of interest shall also be charged on the amounts owed by the
Borrower to the Bank pursuant to any judgments entered in favor of Bank
in respect of this Note or any other Loan Document.
9. Prepayment. Prepayment of principal may be made subject to payment of
all amounts required to be paid in connection with such prepayment as
provided in the Loan Agreement.
B. Remedies.
1. Generally. Upon and following an Event of Default, the Bank, at its
option, may exercise any and all rights and remedies it has under this
Note, the Loan Agreement and/or the other Loan Documents and under
applicable law, including, without limitation, the right to charge and
collect interest on the principal portion of the amounts outstanding
hereunder at the Default Rate. Upon and following an Event of Default,
the Bank may proceed to protect and enforce the Bank's rights under any
Loan Document and/or under applicable law by action at law, in equity,
or other appropriate proceeding, including, without limitation, an
action for specific performance to enforce or aid in the enforcement of
any provision contained herein or in any other Loan Document.
2. Remedies Cumulative; No Waiver. The remedies hereunder and under the
other Loan Documents are cumulative and concurrent, and are not
exclusive of any other remedies available to the Bank. No failure or
delay on the part of the Bank in the exercise of any right, power,
remedy or privilege shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power, remedy or privilege
preclude any other or further exercise thereof, or the exercise of any
other right, power, remedy or privilege.
C. Miscellaneous.
1. Governing Law. This Note shall be construed in accordance with and
governed by the substantive laws of the Commonwealth of Pennsylvania
without reference to conflict of laws principles.
2. Integration. This Note and the other Loan Documents constitute the sole
agreement of the parties with respect to the subject matter hereof and
thereof and supersede all oral negotiations and prior writings with
respect to the subject matter hereof and thereof.
3. Amendment; Waiver. No amendment of this Note, and no waiver of any one
or more of the provisions hereof shall be effective unless set forth in
writing and signed by the parties hereto.
4. Successors and Assigns. This Note (i) shall be binding upon the Borrower
and the Bank and their respective successors and permitted assigns, and
(ii) shall inure to the benefit of the Borrower and the Bank and their
respective successors and permitted assigns; provided, however, that the
Borrower may not assign its rights or obligations hereunder or any
interest herein without the prior written consent of the Bank, and any
such assignment or attempted assignment by the Borrower shall be void and
of no effect with respect to the Bank.
5. Severability. The illegality or unenforceability of any provision of
this Note or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Note or any instrument or agreement required
hereunder. In lieu of any illegal or unenforceable provision in this
Note, there shall be added automatically as part of this Note a legal
and enforceable provision as similar in terms to such illegal or
unenforceable provision as may be possible.
6. Inconsistencies. The Loan Documents are intended to be consistent.
However, in the event of any inconsistencies among any of the Loan
Documents, such inconsistency shall not affect the validity or
enforceability of each Loan Document. The Borrower agrees that in the
event of any inconsistency or
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ambiguity in any of the Loan Documents, the Loan Documents shall not be
construed against any one party but shall be interpreted consistent with
the Bank's policies and procedures.
7. Headings. The headings of sections and paragraphs have been included
herein for convenience only and shall not be considered in interpreting
this Note.
8. Schedules. If a Schedule and/or an Exhibit is attached hereto, the
provisions thereof are incorporated herein.
9. Judicial Proceeding; Waivers.
a. THE BORROWER AGREES THAT ANY SUIT, ACTION OR PROCEEDING, WHETHER
CLAIM OR COUNTERCLAIM, BROUGHT OR INSTITUTED BY THE BANK OR THE
BORROWER OR ANY SUCCESSOR OR ASSIGN OF THE BANK OR THE BORROWER, ON
OR WITH RESPECT TO THIS NOTE OR ANY OTHER LOAN DOCUMENT OR THE
DEALINGS OF THE PARTIES WITH RESPECT HERETO, OR THERETO, SHALL BE
TRIED ONLY BY A COURT AND NOT BY A JURY.
b. THE BANK AND THE BORROWER EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT,
ACTION OR PROCEEDING. FURTHER, THE BORROWER WAIVES ANY RIGHT IT MAY
HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
c. THE BORROWER ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC
AND MATERIAL ASPECT OF THIS NOTE AND THAT THE BANK WOULD NOT EXTEND
CREDIT TO THE BORROWER IF THE WAIVERS SET FORTH IN THIS SECTION WERE
NOT A PART OF THIS NOTE.
IN WITNESS WHEREOF, the Borrower has duly executed and delivered to the Bank
this Note as of the date first above written.
ATTEST: ECC INTERNATIONAL CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx /s/ X. X. Xxxxxx
---------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Secretary/Treasurer Title: President/CEO
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
Telecopier No. (000) 000-0000
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REVOLVING CREDIT NOTE
Obligation No.______________
October 13, 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx
$4,000,000
FOR VALUE RECEIVED, and intending to be legally bound hereby, the undersigned
Borrower, ECC SIMULATION LIMITED, unconditionally promises to pay to the order
of FIRST FIDELITY BANK, NATIONAL ASSOCIATION (the "Bank"), the principal amount
of all advances that are now or may hereafter be made hereunder and that are
then outstanding, together with accrued, unpaid interest thereon and any unpaid
costs and expenses payable hereunder, on September 19, 1997.
A. Terms of Note.
1. Interest Payments. Interest on the principal balance hereof shall,
except as provided in subpart A.B. below, accrue at such rates and be
payable in accordance with Section A.1. of that certain Revolving Credit
Agreement dated September 20, 1994 between the Bank and the Borrower, as
amended to date, including by Amendment (the "Amendment") of even date
herewith (together with any exhibits thereto and amendments and
modifications thereto in effect from time to time, the "Loan
Agreement").
2. Computation of Interest. Interest hereunder shall be computed daily in
accordance with the Loan Agreement. All payments hereunder shall be made
in lawful currency of the United States of America or in pounds
sterling, as set forth in the Loan Agreement, and in immediately
available funds at the Bank's address set forth in the Loan Agreement or
at such other address as the Bank shall notify the Borrower of in
writing.
3. Incorporation by Reference. This Note is the Revolving Credit Note
referred to in the Loan Agreement and is subject to the terms and
conditions thereof, which terms and conditions are incorporated herein,
including, without limitation, terms pertaining to definitions,
representations, warranties, covenants, events of default and remedies.
Any capitalized term used herein without definition shall have the
definition contained in the Loan Agreement.
4. Borrowing Requests; Crediting of Account. Any request for borrowing
pursuant to this Note shall be made by the Borrower in writing in the
form of a "Notice of Borrowing Under Revolving Credit" attached hereto
as Exhibit A and in accordance with the terms of the Loan Agreement.
Unless otherwise requested by the Borrower in writing at least five (5)
Business Days prior to the date of a requested advance, each advance
hereunder shall be made by crediting the Account as defined in the Loan
Agreement with the amount of the advance. All advances made by crediting
the Account or any other account of the Borrower at the Bank shall be
conclusively presumed to have been properly authorized by the Borrower.
5. Bank Records of Advance. The Bank may enter in its business records the
date and the amount of each advance, each conversion from one interest
rate basis to another and each payment made pursuant to this Note and
the Loan Agreement. The Bank's records of such advance, conversion or
payment shall, in the absence of manifest error, be conclusively binding
upon the Borrower. In the event the Bank gives notice or renders a
statement by mailing such notice or statement to the Borrower,
concerning any such advance, conversion or payment, or the amount of
principal and interest due on this Note, the Borrower agrees that,
unless the Bank receives a written notification of exceptions to this
statement within forty-five (45) calendar days after such statement or
notice is mailed, the statement or notice shall be an account stated,
correct and acceptable and binding upon the Borrower.
6. Advance Requests Exceeding Maximum Principal Amount. The Borrower shall
not request the Bank to make any advances under this Note or the Loan
Agreement which exceeds the Maximum Principal Amount set forth in
Section A.1.b. of the Loan Agreement. In the event that the principal
balance outstanding under this Note exceeds at any time the Maximum
Principal Amount, the Borrower shall, subject to the terms of the
Amendment, immediately, and without demand from the Bank, pay to the
Bank the amount in excess thereof, and the Borrower agrees that until
such excess is paid to the Bank, this Note shall evidence and be
enforceable with respect to any and all amounts outstanding hereunder
including such excess.
7. Application of Payments. All payments received on this Note shall be
applied first to the Bank's fees, costs and expenses which the Borrower
is obligated to pay pursuant to the terms hereof and under any other
Loan Document, then to accrued and unpaid interest and then to principal
or such payments may be applied in such other order as the Bank in its
sole discretion shall determine.
8. Default Rate. At the Bank's option, interest will be assessed on any
principal which remains unpaid at the maturity of this Note, whether by
acceleration or otherwise, or upon and following any Event of Default,
at a rate which is four percent (4%) higher than the rate otherwise
charged hereunder (the "Default Rate") provided that at no time shall
the Default Rate
14
exceed the highest rate of interest allowed by law. Such
Default Rate of interest shall also be charged on the amounts
owed by the Borrower to the Bank pursuant to any judgments
entered in favor of Bank in respect of this Note or any other
Loan Document.
9. Prepayment. Prepayment of principal may be made subject to
payment of all amounts required to be paid in connection with
such prepayment as provided in the Loan Agreement.
B. Remedies.
1. Generally. Upon and following an Event of Default, the Bank, at
its option, may exercise any and all rights and remedies it has
under this Note, the Loan Agreement and/or the other Loan
Documents and under applicable law, including, without
limitation, the right to charge and collect interest on the
principal portion of the amounts outstanding hereunder at the
Default Rate. Upon and following an Event of Default, the Bank
may proceed to protect and enforce the Bank's rights under any
Loan Document and/or under applicable law by action at law, in
equity, or other appropriate proceeding, including, without
limitation, an action for specific performance to enforce or
aid in the enforcement of any provision contained herein or in
any other Loan Document.
2. Remedies Cumulative; No Waiver. The remedies hereunder and under
the other Loan Documents are cumulative and concurrent, and are
not exclusive of any other remedies available to the Bank. No
failure or delay on the part of the Bank in the exercise of any
right, power, remedy or privilege shall operate as a waiver
thereof, nor shall any single or partial exercise of any right,
power, remedy or privilege preclude any other or further
exercise thereof, or the exercise of any other right, power,
remedy or privilege.
C. Miscellaneous.
1. Governing Law. This Note shall be construed in accordance with
and governed by the substantive laws of the Commonwealth of
Pennsylvania without reference to conflict of laws principles.
2. Integration. This Note and the other Loan Documents constitute
the sole agreement of the parties with respect to the subject
matter hereof and thereof and supersede all oral negotiations
and prior writings with respect to the subject matter hereof and
thereof.
3. Amendment; Waiver. No amendment of this Note, and no waiver of
any one or more of the provisions hereof shall be effective
unless set forth in writing and signed by the parties hereto.
4. Successors and Assigns. This Note (i) shall be binding upon the
Borrower and the Bank and their respective successors and
permitted assigns, and (ii) shall inure to the benefit of the
Borrower and the Bank and their respective successors and
permitted assigns; provided, however, that the Borrower may not
assign its rights or obligations hereunder or any interest
herein without the prior written consent of the Bank, and any
such assignment or attempted assignment by the Borrower shall be
void and of no effect with respect to the Bank.
5. Severability. The illegality or unenforceability of any
provision of this Note or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Note or any
instrument or agreement required hereunder. In lieu of any
illegal or unenforceable provision in this Note, there shall be
added automatically as part of this Note a legal and enforceable
provision as similar in terms to such illegal or unenforceable
provision as may be possible.
6. Inconsistencies. The Loan Documents are intended to be
consistent. However, in the event of any inconsistencies among
any of the Loan Documents, such inconsistency shall not affect
the validity or enforceability of each Loan Document. The
Borrower agrees that in the event of any inconsistency or
ambiguity in any of the Loan Documents, the Loan Documents shall
not be construed against any one party but shall be interpreted
consistent with the Bank's policies and procedures.
7. Headings. The headings of sections and paragraphs have been
included herein for convenience only and shall not be considered
in interpreting this Note.
8. Schedules. If a Schedule and/or an Exhibit is attached hereto,
the provisions thereof are incorporated herein.
9. Judicial Proceeding; Waivers.
a. THE BORROWER AGREES THAT ANY SUIT, ACTION OR PROCEEDING,
WHETHER CLAIM OR COUNTERCLAIM, BROUGHT OR INSTITUTED BY
THE BANK OR THE BORROWER OR ANY SUCCESSOR OR ASSIGN OF
THE BANK OR THE BORROWER, ON OR WITH RESPECT TO THIS
NOTE OR ANY OTHER LOAN DOCUMENT OR THE DEALINGS OF THE
PARTIES WITH RESPECT HERETO, OR THERETO, SHALL BE TRIED
ONLY BY A COURT AND NOT BY A JURY.
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15
b. THE BANK AND THE BORROWER EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT,
ACTION OR PROCEEDING. FURTHER, THE BORROWER WAIVES ANY RIGHT IT MAY
HAVE TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
c. THE BORROWER ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC
AND MATERIAL ASPECT OF THIS NOTE AND THAT THE BANK WOULD NOT EXTEND
CREDIT TO THE BORROWER IF THE WAIVERS SET FORTH IN THIS SECTION WERE
NOT A PART OF THIS NOTE.
IN WITNESS WHEREOF, the Borrower has duly executed and delivered to the Bank
this Note as of the date first above written.
ATTEST: ECC SIMULATION LIMITED
/s/ Xxxxxxx X. Xxxxxxxx By: /s/ X.X. Xxxxxx, Director
---------------------------- -----------------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Secretary/Treasurer Title: Director
Address: 000 Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Telecopier No. (000) 000-0000
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