Exhibit 10.26
FORBEARANCE AGREEMENT
This Forbearance Agreement (this "Agreement") dated as of this ____ day of
June, 2002 by and among Wachovia Bank, National Association, successor-by-name
change to First Union National Bank ("Agent"), for itself and as agent for Fleet
National Bank, successor-by-merger to Summit Bank ("Fleet") and XX Xxxxxx Xxxxx
Bank, successor-by-name change to The Chase Manhattan Bank ("Chase") (sometimes
hereinafter collectively referred to as the " Lenders"), Measurement
Specialties, Inc. ("Borrower"), Measurement Specialties UK Limited. ("MSUK"), IC
Sensors, Inc. ("IC"), Measurement Limited ("ML"), Jingliang Electronics
(Shenzen) Co., Ltd. ("Jingliang") and Terraillon Holdings Limited ("THL").
BACKGROUND
A. Pursuant to the terms of a certain Amended and Restated Revolving
Credit, Term Loan and Security Agreement dated February 28, 2001, all amendments
thereto and various other documents, instruments and agreements, by and between
Lenders and Borrower (the "Loan Agreement", which term will, upon execution,
include this Agreement), Lenders have made available to Borrower (i) a revolving
line of credit of up to Seventeen Million ($17,000,000.00) Dollars (the
"Revolving Credit"), which includes a sub-line of credit of up to Three Million
Five Hundred Thousand ($3,500,000.00) Dollars made available to MSUK (the "MSUK
Sub-limit"); (ii) a term loan in the original principal amount of Twenty-Five
Million ($25,000,000.00) Dollars ("Term Loan"); (iii) an excess revolving credit
facility in the original principal amount of Six Million ($6,000,000.00) Dollars
(the "Excess Facility"). The Revolving Credit, the Excess Facility, and the Term
Loan are evidenced by various promissory notes between Borrower and Lenders,
each of which evidences the individual bank's pro rata share of each loan. Said
promissory notes are hereinafter collectively referred to as the "Notes". The
Revolving Credit, the Term Loan, and the Excess Facility are hereinafter
collectively referred to as the "Credit Facilities."
B. As collateral security for all existing and future indebtedness,
liabilities and obligations of Borrower to Lenders, pursuant to the Loan
Agreement, Borrower granted Lenders a security interest in and to all of
Borrower's personal property, including without limitation, accounts, inventory,
furniture, equipment, machinery, contract rights and general intangibles, now or
hereafter owned by Borrower (the "Personal Property Collateral").
C. As an inducement to Lenders to make available the Credit Facilities,
pursuant to a certain unconditional Amended and Restated Guaranty dated February
28, 2001 (the "Guaranty") executed and delivered by IC to Lenders, IC
unconditionally guaranteed, as surety, the prompt payment and due performance of
all of Borrower's indebtedness, liabilities and obligations to the Lenders.
D. As additional security for all activities and future indebtedness,
liabilities and obligations of Borrower to Lenders, IC granted Lenders a
security interest in all of IC's personal property, including without limitation
accounts, inventory, furniture, equipment,
machinery, contract rights and general intangibles, now or hereafter owned by IC
(the "IC Collateral").
E. As additional security for all existing and future indebtedness,
liabilities and obligations of Borrower to Lenders, Borrower has granted to
Lenders security interests in other collateral, as set forth in the Financing
Agreements. The Personal Property Collateral, the IC Collateral and all other
Collateral securing the Revolving Credit, the Excess Facility, or the Term Loan
are sometimes hereafter referred to as the "Collateral."
F. The Loan Agreement, the Notes, the Mortgages and the Guaranty are
hereinafter collectively referred to as the "Financing Agreements." Unless
otherwise defined, all capitalized terms set forth herein shall have the same
meaning as those in the Financing Agreements. Borrower's liabilities,
obligations and indebtedness to Lenders evidenced and/or secured by the
Financing Agreements are hereinafter collectively referred to as the
"Obligations".
G. Borrower is in default under the Financing Agreements as described on
Exhibit "A" attached hereto (the "Existing Defaults") and made a part hereof.
H. Borrower has requested that Lenders forbear from exercising their
rights and remedies under the Financing Agreements and Lenders are willing to do
so pursuant the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, with the foregoing Background deemed incorporated
hereinafter by this reference and hereby made a part hereof, the parties hereto,
intending to be legally bound hereby, further covenant and agree as follows:
1. CONFIRMATION OF EXISTING INDEBTEDNESS. Borrower, MSUK, IC, ML,
Jingliang, and THL hereby unconditionally acknowledge and confirm that the
following sums are due and owing as of June 20, 2002:
REVOLVING CREDIT
Principal $15,303,308.73
EXCESS FACILITY
Principal $ 4,396,000.00
TERM LOAN
Principal $ 7,163,953.33
TOTAL INDEBTEDNESS $26,863,262.06
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and that the foregoing indebtedness, together with continually accruing interest
and related costs, fees and expenses including, without limitation, expenses
reimbursable to Lenders
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pursuant to and evidenced by the Financing Agreements, are owing by Borrower to
Lenders without claim, counterclaim, right to recoupment, defense or set-offs of
any kind or any nature whatsoever. TO THE EXTENT THAT ANY SUCH CLAIM,
COUNTERCLAIM, RIGHT RECOUPMENT, DEFENSE OR SETOFF EXIST, BORROWER, MSUK, IC, ML,
JINGLIANG, AND THL EXPRESSLY WAIVE AND RELEASE SAME. Interest on account of the
Obligations continues to accrue at Prime + 3%.
2. RATIFICATION, REAFFIRMATION AND CONFIRMATION.
(a) Borrower hereby ratifies, confirms and reaffirms in all respects
and without condition, all of the terms, covenants and conditions set forth in
the Financing Agreements (except as modified or amended hereby), and hereby
agrees that Borrower remains unconditionally liable to Lenders in accordance
with the respective terms, covenants and conditions of such instruments,
agreements and documents. Borrower further hereby ratifies, confirms and
reaffirms that all collateral, liens, security interests, mortgages and pledges
created pursuant to the Financing Agreements and/or referred to therein continue
unimpaired and in full force and effect, except as expressly modified hereby,
and secure and shall continue to secure all of the debts, liabilities and
Obligations of Borrower to Lenders;
(b) IC hereby ratifies, confirms and reaffirms in all respects and
without condition, all of the terms, covenants and conditions set forth in the
Guaranty, and hereby agrees that IC remains unconditionally liable to Lenders in
accordance with the terms, covenants and conditions of the Guaranty;
(c) Borrower and IC hereby ratify and confirm that Borrower and IC
are in default under the Financing Agreements as specified in Exhibit "A" hereto
and all required notices under the Financing Agreements have been received or
are hereby waived;
(d) Borrower and IC remain obligated for and hereby reaffirm and
agree to pay, within the time set forth in this Agreement, any and all
reasonable attorneys' fees and expenses heretofore and hereafter incurred by
Lenders in connection with the preparation, negotiation and/or enforcement of
the Financing Agreements and this Agreement.
3. REPRESENTATIONS AND WARRANTIES. Borrower and IC represent and warrant
to Lenders as follows:
(a) Borrower and IC are corporations duly incorporated, validly
subsisting and in good standing under the laws of their states/countries of
incorporation. Borrower and IC have taken all action required to execute and
deliver this Agreement and to perform the transactions contemplated hereby
including, without limitation, securing the approval of their respective boards
of directors;
(b) The making and performance of this Agreement will not
(immediately, with the passage of time, or with the giving of notice and the
passage of time):
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(i) Violate the charter, minutes or by-laws of Borrower or
IC, violate any law or result in a default under any
contract, agreement or instrument to which Borrower or
IC are a party or by which Borrower /IC or their
properties or assets are or may be bound; or
(ii) Result in the creation or imposition of any security
interest in, or lien or encumbrance upon, any asset of
Borrower or IC, except such as are in favor of Lenders;
(c) Borrower and IC have the power, authority and capacity to enter
into and perform this Agreement and to incur the Obligations herein provided
for;
(d) This Agreement is valid, binding and enforceable against
Borrower and IC, in accordance with its respective terms;
(e) Except as set forth on Exhibit 3(e) attached hereto, there are
no judgments or judicial or administrative orders or proceedings pending, or to
the knowledge of Borrower threatened, against or affecting Borrower, or the
property of Borrower, in any court or before any governmental authority or
arbitration board or tribunal. Borrower is not in default under any order of any
court, governmental authority, arbitration board or tribunal or administrative
agency;
(f) Except as set forth on Exhibit 3(f) attached hereto, Borrower
has good and marketable title in fee simple (or its equivalent under applicable
law) to all of the properties and assets it purports to own including any and
all property reflected in its financial statements, free from consensual liens
and encumbrances of any third party, except for liens and encumbrances in favor
of Lenders. To the best of Borrower's knowledge, there are no non-consensual
liens or encumbrances on such properties or assets in favor of any third party;
(g) Borrower has complied in all material respects with all
applicable laws with respect to (i) the conduct of its business operations, and
(ii) the use, maintenance and operation of the real and personal property owned
or leased by it in the operation of its business;
(h) No representation or warranty by Borrower contained herein, or
in any certificate or other document furnished by Borrower pursuant hereto,
contains any untrue statements of material fact or omits to state a material
fact necessary to make any such representation or warranty not misleading in
light of the circumstances under which it was made; and
(i) No consent, approval or authorization of, or filing,
registration or qualification with, any person or entity is required to be
obtained by Borrower in connection with the execution and delivery of this
Agreement or the undertaking or performance of any obligation hereunder.
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4. CONDITIONS PRECEDENT. As a condition precedent to Lenders' Obligations
hereunder, Lenders shall have received each of the following (all documents to
be in form and substance satisfactory to Lenders) on or before the date hereof:
(a) This Agreement, duly executed by Borrower, IC, ML, Jingliang,
and THL;
(b) Certified (as of the date hereof) copy of a resolution of the
boards of directors of Borrower and IC authorizing the execution and delivery of
this Agreement and Borrower's/IC's performance hereunder and under any and all
related instruments, documents and agreements;
(c) A certificate of the corporate secretary of each of the Borrower
and IC as to the incumbency and specimen signatures of the officers of Borrower
and IC executing this Agreement and each other document to be executed and/or
delivered pursuant hereto;
(d) Borrower shall have paid the Forbearance Fee provided in
paragraph 9(i) hereof; and
(e) Borrower shall have paid any Overadvance in excess of the
Permitted Overadvance, if any, as determined in accordance with paragraph 7 of
this Agreement.
5. TEMPORARY FORBEARANCE. Lenders agree to forbear from exercising their
rights and remedies under the Financing Agreements, which Lenders are entitled
to exercise as a result of, among other things, the occurrence of the Existing
Defaults, during the period (the "Temporary Forbearance Period") commencing on
the date hereof and ending on the earlier of (a) November 1, 2002, or (b) the
date on which any Terminating Event (as hereinafter defined) occurs (such
earlier date, the "Forbearance Termination Date"). For the purposes of this
Agreement, the term "Terminating Event" shall mean (i) the occurrence of any
breach or violation of any provision of this Agreement, (ii) if any
representation made by Borrower in connection with this Agreement is untrue in
any material respect, (iii) filing by or against Borrower or any of them of a
proceeding under the United States Bankruptcy Code, (iv) there occurs a
violation or Event of Default (howsoever defined in the Financing Agreements)
under the Financing Agreements, other than an Existing Default. In the Event of
a non-monetary Event of Default, Borrower shall have five (5) days in which to
cure such default.
6. OCCURRENCE OF TERMINATING EVENT. Borrower and IC expressly understand
and further agree that upon the occurrence of a Terminating Event, the Temporary
Forbearance Period may be terminated by Lenders. If the Terminating Event arises
as a result of the failure of Borrower to make any payment due under the terms
hereof (a "Monetary Default"), no notice or demand will be required for Lenders
to terminate the Temporary Forbearance Period. If the Terminating Event is other
than a Monetary Default (a "Non-Monetary Default"), Agent shall provide a notice
of such Non-Monetary Default and Borrower
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shall have five (5) days from the date of such notice to cure the Non-Monetary
Default (the "Cure Period"). If Borrower fails to cure the Non-Monetary Default
within the Cure Period, the Lenders may terminate the Temporary Forbearance
Period. Lenders are relying on all terms, covenants, conditions, warranties and
representations set forth in this Agreement including, without limitation,
Lenders' right to terminate the Temporary Forbearance Period as aforesaid, as a
material inducement to Lenders to enter into this Agreement.
7. REVOLVING CREDIT. During the Forbearance Period, Borrower shall be
entitled to paydown and borrow under the Revolving Credit subject to the
following terms and limitations:
(a) Availability and the outstanding balance under the Revolving
Credit will be capped at Twenty-Two Million Four Hundred Thousand
($22,400,000.00) Dollars (the "Maximum Availability"). The Maximum Availability,
and the outstanding balance under the Revolving Credit, will be reduced to $
21,500,000.00 on July 31, 2002 (the "July 31 Maximum Availability");
(b) Commencing on the earlier of September 30, 2002 or the closing
of the THL Sale, the July 31 Maximum Availability, and the outstanding balance
under the Revolving Credit, will be reduced to $13,500,000.00 (the "September 30
Maximum Availability"). However, from that date forward, the availability under
the Revolving Credit will be limited to the lesser of (i) the September 30
Maximum Availability, or (ii) Eligible Collateral minus $1,000,000.00;
(c) Currently, Borrower has an advance under the Revolving Credit in
excess of the Eligible Collateral as determined under the Financing Agreements
(the "Overadvance"). Absent a Terminating Event, Borrower may maintain the
Overadvance at not greater than $9,000,000.00 Dollars through July 31, 2002 (the
"Permitted Overadvance"). The Permitted Overadvance shall be reduced to
$8,000,000.00 on August 1, 2002;
(d) The Overadvance must be eliminated on the earlier of (i) the
sale of THL; or (ii) September 30, 2002. It shall be a Terminating Event
hereunder if the Overadvance should exceed the Permitted Overadvance, or if
there shall be any outstanding loans under the Revolving Credit in excess of the
Maximum Availability in effect at that time;
(e) The MSUK Sub-limit is hereby terminated, and MSUK shall have no
further ability to draw down on the Revolving Credit; and
(f) Borrower will submit a Borrowing Base Certificate on or before
Tuesday of each week. There shall be no grace period for the submission of the
weekly Borrowing Base Certificate. Each such Borrowing Base Certificate shall
calculate Eligible Collateral as of Friday of the preceding week.
(g) Daily all available funds of Borrower on deposit with Agent
shall be applied in reduction of the Revolving Credit subject to re-advance in
accordance with the terms hereof.
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(h) Requests for advances may be submitted by Borrower to Agent
daily, subject to section 8.2 of the Loan Agreement, as modified hereby,
provided, however, that no advance will be made by Agent if (i) a Monetary
Default has occurred; (ii) a Non-Monetary Default has occurred for which the
Cure Period has not expired; (iii) Lenders shall have terminated the Temporary
Forbearance Period in accordance with paragraph 6 hereof; (iv) the Temporary
Forbearance Period shall have expired; (v) such advance would exceed the Maximum
Availability; (vi) such advance would cause an Overadvance in excess of the
Permitted Overadvance; or (vii) such advance would be in excess of the
limitation set forth in paragraph 7(b) above. Each advance shall act as a
reaffirmation by Borrower of all representations and warranties contained in the
Loan Agreement, as modified hereby.
(i) In the event of a non-monetary Event of Default, the Lenders
shall have no obligation to make any advances under the Revolving Credit unless
and until such default is cured within the five (5) day period set forth in
Paragraph 5 above.
8. REPAYMENT OF OBLIGATIONS DURING TEMPORARY FORBEARANCE PERIOD. During
the Temporary Forbearance Period:
(a) Interest shall be payable monthly in arrears on account of each
of the Notes at a rate of interest of Prime + 3%. Upon the occurrence of a
Terminating Event, the interest rate on each of the Notes will increase by an
additional two (2%) percent per annum without the necessity of notice or demand
to Borrower;
(b) Borrower shall remain obligated to make all payments of
principal provided for in the Term Notes in a timely manner without necessity of
notice or demand from Lenders;
(c) Upon expiration of the Temporary Forbearance Period, all
Obligations shall be immediately due and payable in full without the necessity
of any notice or demand, and any interest rate hedge contracts will immediately
mature and any termination charges will be immediately payable in full;
(d) Borrower represents and warrants that it is attempting to sell
certain assets, including, without limitation, THL, the California Wafer
Facility and certain consumer inventory (the "Consumer Inventory"). Borrower
agrees to actively seek a purchaser for, and to actively pursue the sale of,
said assets. All proceeds from the sale of assets by Borrower in other than the
ordinary course of business shall, after payment of actual and reasonable costs
of sale, be applied to the Revolving Credit as/when received; and
(e) Borrower has delivered to Lenders an assignment of its Federal
Income Tax refund. All proceeds therefrom shall be deposited into Borrower's
account with Agent to pay down the Revolving Credit, subject to re-advance
pursuant to the terms hereof.
9. ADDITIONAL COVENANTS OF BORROWER. The following shall be applicable to
Borrower's operations during the term of the Temporary Forbearance Period:
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(a) Borrower shall continue to provide to Lenders all financial
reporting required under the Financing Agreements. However, Borrower's future
delinquency in making timely SEC filings shall not constitute a Terminating
Event;
(b) Borrower, through SSG Capital Advisors, shall provide to Lenders
weekly status reports regarding their efforts to sell THL;
(c) Borrower shall maintain all depository accounts with Lenders;
(d) There shall be no transfers of any assets by Borrower except in
the ordinary course of business, without the prior approval of Lenders, which
approval right Lenders may exercise in their sole discretion. Such transfers
shall include, without limitation, sale of THL, the California Wafer Facility.
In the event that any assets are sold, the proceeds therefrom shall, after
payment of actual and reasonable costs of sale, be applied to the Revolving
Credit;
(e) The Borrower has identified approximately $2.2 million worth of
Consumer Inventory that is slow-moving. Lenders have consented to the
liquidation of same, and Borrower agrees to use its best efforts to maximize the
value thereof. Any proceeds generated from the sale of said assets shall be
applied to the Revolving Credit;
(f) Borrower and IC agree to close on the sale of the California
Wafer Facility in a time period and for an amount acceptable to the Lenders;
(g) Borrower agrees to notify Xxxxx Xxxxxxxx (the "Receiver"), who
has been appointed as a receiver to liquidate MSUK, of the covenants contained
herein and will direct the Receiver to remit all proceeds of liquidation to
which Borrower is legally entitled to Agent;
(h) The financial records of Borrower shall be subject to review
from time to time, and at such time as Lenders may reasonably request (during
normal business hours), by accountants retained by Lenders, with the reasonable
expense thereof to be paid by Borrower upon demand;
(i) The Collateral shall be subject to review from time to time, and
at such time as the Lenders may reasonably request, by appraisers retained by
the Lenders, with the reasonable expense thereof to be paid by Borrower on
demand;
(j) In consideration of Lenders entering into this Agreement,
Borrower shall pay to Lenders a forbearance fee of $50,000.00 which shall be
fully earned upon execution of this Agreement;
(k) On or before July 19, 2002, MSI shall execute documents
satisfactory to Lenders to effectuate a pledge to the Agent of the remaining 35%
of issued and outstanding shares of THL stock, so that 100% of the stock will
then be pledged to Agent;
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(l) On or before July 19, 2002, MSI shall execute documents
satisfactory to Lenders to effectuate a pledge to the Agent of the remaining 35%
of issued and outstanding shares of ML stock, so that 100% of the stock will
then be pledged to Agent; and
(m) Borrower agrees to issue on or before July 19, 2002, warrants in
favor of Lenders, giving Lenders the right to acquire in the aggregate 594,456
shares (4.99%) of Borrower's outstanding shares of common stock. Said warrants
shall be in a form acceptable to the Lenders, in their sole discretion. Such
warrants shall not be transferable by Lenders prior to termination of the
Temporary Forbearance Period, and then may be transferred in accordance with
applicable law. The warrants shall be exercisable for a period of five (5) years
from November 10, 2002 at an exercise price equal to the lesser of (i) the
average closing price of Borrower's common stock on the five (5) business days
preceding the date of this Agreement; or (ii) the average closing price of
Borrower's common stock on the five (5) business days preceding November 10,
2002. Lenders agree to return 50% of said warrants for cancellation if Borrower
is in full compliance with the terms hereof on October 1, 2002 to return the
other 50% of said warrants for cancellation if the Obligations are repaid in
full on or before November 1, 2002.
10. ELIMINATION OF NEGATIVE COVENANTS. In consideration for the covenants
of Borrower in this Agreement, the Negative Covenants applicable to ML and MSUK,
as set forth in Section 7 in the Loan Agreement, are hereby deleted from the
Financing Agreements. Additionally, the Lenders have agreed to modify certain
representations, warranties and covenants in the Loan Agreement. Such
modifications are set forth on Exhibit "10" attached hereto.
11. AMENDMENT TO NOTES. The terms of the Notes are hereby amended to make
the maturity dates thereof November 1, 2002.
12. FOREIGN EXCHANGE FACILITY. Lenders have previously made available to
Borrower a certain Foreign Exchange Facility. Said Foreign Exchange Facility is
hereby terminated.
13. REMEDIES OF LENDERS. At Lenders' option, upon the occurrence of a
Terminating Event, without further notice to Borrower or IC, the Obligations
shall become immediately due and payable and Lenders may exercise its remedies
provided under the Financing Agreements and at law or equity.
14. NO WAIVER OF EXISTING DEFAULT. This Agreement is not and shall not be
deemed to be a waiver of the Existing Defaults or defaults which hereafter occur
under the Financing Agreements. Borrower and IC expressly acknowledge and agree
that the Existing Defaults constitute an Event of Default under the Financing
Agreements and that any notices of, or periods of time for curing, such Events
of Default have expired or have been (or are hereby) waived by Borrower and IC.
15. FORBEARANCE LIMITATION This Agreement shall not be deemed to apply to
any indebtedness or obligations of Borrower to Lenders other than the
Obligations.
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Borrower and IC recognize that no forbearance exists as to any other such
indebtedness or obligations.
16. NO DEFENSES, ETC. Borrower and IC hereby confirm and reconfirm that as
of the date hereof there are no existing defenses, claims, counterclaims or
rights of recoupment or set-off against Lenders in connection with the
negotiation, preparation, execution, performance or any other matters relating
to this Agreement or the Financing Agreements. Borrower and IC further
acknowledge and agree that, notwithstanding anything to the contrary set forth
in this Agreement, Lenders has no obligation to further amend the Financing
Agreements, or enter into any other instruments, agreements or documents
regarding any of the same with Borrower or IC, and that Lenders, and their
representatives have not made any agreements with, or commitments or
representations or warranties to, Borrower or IC (either in writing or oral)
other than as expressly stated in this Agreement. Borrower and IC further
acknowledge and agree that, except as expressly set forth in this Agreement,
Lenders have no obligation to forebear from the exercise of their rights and
remedies to collect the indebtedness described in this Agreement.
17. RELEASE. In consideration of the accommodations being made by Lenders
to or for the benefit of Borrower under this Agreement each of Borrower, ML, IC,
Jingliang, and THL (the "Releasing Parties"), for itself, themselves and their
respective agents, employees, successors and assigns, do hereby remise, release
and forever discharge Lenders, and its agents, employees, attorneys,
representatives, officers, successors and assigns of and from any and all
claims, counterclaim, demands, actions and causes of action of any nature
whatsoever, whether at law or in equity including, without limitation, any of
the foregoing arising out of, or relating to the transactions described in this
Agreement, which against Lenders, or its agents, employees, representatives,
officers, successors or assigns, or any of them, the Releasing Parties now have
or hereafter can or may have for or by reason of any cause, matter or thing
whatsoever, from the beginning of the world to the date of this Agreement.
18. NO COERCION OR DURESS. Each of Borrower and IC hereby represents and
warrants that such party is fully aware of the terms set forth in this Agreement
and has voluntarily, and without coercion or duress of any kind, entered in this
Agreement intending to be legally bound by its terms.
19. NO CONTEST TO COLLATERAL SECURITY. In consideration of this Agreement,
Borrower hereby agrees that, after the occurrence of a Terminating Event, it
will not contest the exercise of Lenders' rights to foreclose or otherwise take
action with respect to the liens on and security interests of Lenders in and to
the collateral security for the Obligations under the Financing Agreements, or
to contest the appointment of any receiver in connection of the operation of any
of such Collateral.
20. RENUNCIATION OF NOTIFICATION OF SALE. Borrower and IC hereby renounce
any rights of notification of sale they may have pursuant to Section 9611 of the
Uniform Commercial Code as enacted in the State of New Jersey. Borrower and IC
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acknowledge that this renunciation is intended to be a renunciation after
default as described in Section 9611 of the Uniform Commercial Code.
21. NOTICES. All notices and other communications hereunder or under the
Financing Agreements shall be in writing and will be given to the person either
personally or by sending a copy thereof by first class mail, postage prepaid,
return receipt requested, or by nationally known overnight courier service,
charges prepaid, to such person's address as follows:
If to Lenders:
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Wachovia Bank, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxx, Senior Vice President
With a copy to:
---------------
Klehr, Harrison, Xxxxxx, Branzburg & Xxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esquire
Xxxxxxx Xxxxxxxxxxxx
Fleet Bank
000 Xxxxxxxx Xxxxxx
Xxxxxxxx XX RP 45002L
Xxxxxxxxx, XX 00000
Xxxx Xxxxxxxxx, Vice President
XX Xxxxxx Xxxxx & Co.
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
If to Borrower or IC:
---------------------
Xxxxx Xxxxxxx
CRP, LLC
00000 Xxxx Xxxx
Xxxxx 0000
Xxxxxx, XX 00000
Xxxxxx X. Xxxxxx, Xx.
Measurement Specialties, Inc.
00 Xxxxxx Xxxxx Xxxx
00
Xxxxxxxxx, XX 00000
With a copy to:
---------------
Xxxx X. XxXxxxxxx, Esquire
Xxxxxxxx Xxxxx & Deutsch LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
22. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. LENDERS, BORROWER AND
IC HEREBY AGREE THAT ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR
COUNTERCLAIM, BROUGHT BY BORROWER OR IC ON OR WITH RESPECT TO THIS AGREEMENT OR
ANY OF THE FINANCING AGREEMENTS OR THE DEALINGS OF THE PARTIES WITH RESPECT
HERETO OR THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. LENDERS,
BORROWER AND IC HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT
TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. FURTHER, BORROWER AND
IC HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE
TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL,
EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR IN ADDITION
TO, ACTUAL DAMAGES. BORROWER AND IC ACKNOWLEDGE AND AGREE THAT THIS SECTION IS A
SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT AND THAT LENDERS WOULD NOT ENTER
INTO THIS AGREEMENT IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART OF
THIS AGREEMENT. BORROWER AND IC CONSENT TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED IN PHILADELPHIA COUNTY, PENNSYLVANIA AND AGREE NOT TO
RAISE ANY OBJECTION TO SUCH JURISDICTION OR THE LAYING OF THE VENUE IN SUCH
COURT.
23. INCORPORATION INTO FINANCING AGREEMENTS. This Agreement shall be
deemed incorporated into and made a part of the Financing Agreements. Except as
expressly set forth in this Agreement, the terms and conditions set forth in the
Financing Agreements shall remain in full force and effect. All such
instruments, agreements and documents and this Agreement shall be construed as
integrated and complementary of each other, and as augmenting and not
restricting Lenders' rights, remedies, benefits and security. If, after applying
the foregoing, an inconsistency still exists, the provisions of this Agreement
shall constitute an amendment to the Financing Agreements and shall control.
24. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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Attest: Measurement Specialties, Inc.
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxx (SEAL)
Name: Xxxxx Xxxxxxxxx Name: Xxxxx Xxxxxxx
Title: Secretary Title: CEO
IC Sensors, Inc.
By: /s/ Xxxxx Xxxxxxx (SEAL)
Measurement Limited
By: /s/ Xxxxxx X. Xxxxxx, Xx. (SEAL)
Jingliang Electronics (Shenzen) Co., Ltd.
By: /s/ Xxxxxx X. Xxxxxx, Xx. (SEAL)
Terraillon Holdings Limited
By: /s/ Xxxxxx X. Xxxxxx, Xx. (SEAL)
FIRST UNION
NATIONAL BANK
For itself, and as
agent for Fleet
Bank and JPMorgan
Chase Bank
By: /s/ Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxx, Senior Vice President
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