SIGNET BANK
LOAN AGREEMENT
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$10,000,000.00 10-31-1996 01-31-1998 0124843566 000 EAEngine 17548
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Borrower: EA Engineering Science and Technology, Inc. Lender: SIGNET BANK
00000 XxXxxxxxx Xxxx XXXXXX XXXXX
Xxxx Xxxxxx, XX 00000 0 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
THIS LOAN AGREEMENT between EA Engineering, Science, and Technology, Inc.
("Borrower") and SIGNET BANK ("Lender") is made on the following terms and
conditions. Borrower has received prior commercial loans from Lender or has
applied to Lender for a commercial loan or loans and other financial
accommodations, including those which may be described on any exhibit or
schedule attached to this Agreement. All such loans and financial
accommodations, together with all future loans and financial accommodations from
Lender to Borrower, are referred to in this Agreement individually as the "Loan"
and collectively as the "Loans." Borrower understands and agrees that: (a) in
granting, renewing, or extending any Loan, Lender is relying upon Borrower's
representations, warranties, and agreements, as set forth in this Agreement; (b)
the granting, renewing, or extending of any Loan by Lender at all times shall be
subject to Xxxxxx's sole judgment and discretion; and (c) all such Loans shall
be and shall remain subject to the following terms and conditions of this
Agreement.
TERM. This Agreement shall be effective as of October 31, 1996, and shall
continue thereafter until all indebtedness of Borrower to Lender has been
performed in full and the parties terminate this Agreement in writing.
DEFINITIONS. The following words shall have the following meanings when used in
this Agreement. Terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. All references
to dollar amounts shall mean amounts in lawful money of the United States of
America.
Agreement. The word "Agreement" means this Loan Agreement, as this Loan
Agreement may be amended or modified from time to time, together with all
exhibits and schedules attached to this Loan Agreement from time to time.
Account. The word "Account" means a trade account, account receivable, or
other right to payment for goods sold or services rendered owing to
Borrower (or to a third party grantor acceptable to Lender).
Account Debtor. The words "Account Debtor" mean the person or entity
obligated upon an Account.
Advance. The word "Advance" means a disbursement of Loan funds under this
Agreement.
Borrower. The word "Borrower" means EA Engineering Science and
Technology, Inc. and its successors and assigns. The word "Borrower" also
includes, as applicable, all subsidiaries and affiliates of Borrower as
provided below in the paragraph titled "Subsidiaries and Affiliates."
Borrowing Base. The words "Borrowing Base" mean, as determined by Xxxxxx
from time to time, the lesser of (a) $10,000,000.00; or (b) a percentage
of the aggregate amount of Eligible Accounts.
10-31-1996 LOAN AGREEMENT Page 2
(Continued)
Business Day. The words "Business Day" mean a day on which commercial
banks are open for business in the State of Maryland.
CERCLA. The word "CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
Cash Flow. The words "Cash Flow" mean net income after taxes, and
exclusive of extraordinary gains and income, plus depreciation and
amortization.
Collateral. The word "Collateral" means and includes without limitation
all property and assets granted as collateral security for a Loan, whether
real or personal property, whether granted directly or indirectly, whether
granted now or in the future, and whether granted in the form of a
security interest, mortgage, deed of trust, assignment, pledge, chattel
mortgage, chattel trust, factor's lien, equipment trust, conditional sale,
trust receipt, lien, charge, lien or title retention contract, lease or
consignment intended as a security device, or any other security or lien
interest whatsoever, whether created by law, contract, or otherwise. The
word "Collateral" includes without limitation all collateral described
below in the section titled "COLLATERAL."
Debt. The word "Debt" means all of Borrower's liabilities excluding
Subordinated Debt.
Eligible Accounts. The words "Eligible Accounts" mean, at any time, all of
Borrower's Accounts which contain selling terms and conditions acceptable
to Lender. The net amount of any Eligible Account against which Borrower
may borrow shall exclude all returns, discounts, credits, and offsets of
any nature. Unless otherwise agreed to by Xxxxxx in writing, Eligible
Accounts do not include:
(a) Accounts with respect to which the Account Debtor is an officer, an
employee or agent of Xxxxxxxx.
(b) Accounts with respect to which the Account Debtor is a subsidiary of,
or affiliated with or related to Borrower or its shareholders, officers,
or directors.
(c) Accounts with respect to which goods are placed on consignment,
guaranteed sale, or other terms by reason of which the payment by the
Account Debtor may be conditional.
(d) Accounts with respect to which Borrower is or may become liable to the
Account Debtor for goods sold or services rendered by the Account Debtor
to Borrower.
(a) Accounts which are subject to dispute, counterclaim, or setoff.
(f) Accounts with respect to which the goods have not been shipped or
delivered, or the services have not been rendered, to the Account Debtor.
(g) Accounts with respect to which Xxxxxx, in its sole discretion, deems
the creditworthiness or financial condition of the Account Debtor to be
unsatisfactory.
(h) Accounts of any Account Debtor who has filed or has had filed against
it a petition in bankruptcy or an application for relief under any
provision of any state or federal bankruptcy, insolvency, or
debtor-in-relief acts; or who has had appointed a trustee, custodian, or
receiver for the assets of such Account Debtor; or who has made an
assignment for the benefit of creditors or has become insolvent or fails
generally to pay its debts (including its payrolls) as such debts become
due.
(i) Accounts which have not been paid in full within 90 days from the
Invoice date.
10-31-1996 LOAN AGREEMENT Page 3
(Continued)
ERISA. The word "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended.
Event of Default. The words "Event of Default" mean and include without
limitation any of the Events of Default set forth below in the section
titled "EVENTS OF DEFAULT."
Expiration Date. The words "Expiration Date" mean the date of termination
of Xxxxxx's commitment to lend under this Agreement.
Grantor. The word "Grantor" means and includes without limitation each and
all of the persons or entities granting a Security Interest in any
Collateral for the Indebtedness, and their personal representatives,
successors and assigns.
Guarantor. The word "Guarantor" means and includes without limitation each
and all of the guarantors, sureties, and accommodation parties in
connection with any indebtedness and their personal representatives,
successors and assigns.
Indebtedness. The word "Indebtedness" means and includes without
limitation all Loans, including all principal, interest and other fees,
costs and charges, if any, together with all other present and future
liabilities and obligations of Borrower, or any one or more of them, to
Lender, whether direct or indirect, matured or unmatured, and whether
absolute or contingent, joint, several, or joint and several, and no
matter how the same may be evidenced or shall arise.
Lender. The word "Lender" means SIGNET BANK, its successors and assigns.
Line of Credit. The words "Line of Credit" mean the credit facility
described in the Section titled "LINE OF CREDIT" below.
Liquid Assets. The words "Liquid Assets" mean Borrower's cash on hand
plus Borrower's readily marketable securities.
Loan. The word "Loan" or "Loans" means and includes without limitation any
and all commercial loans and financial accommodations from Lender to
Borrower, whether now or hereafter existing, and however evidenced,
including without limitation those loans and financial accommodations
described herein or described on any exhibit or schedule attached to this
Agreement from time to time.
Note. The word "Note" means and includes without limitation Borrower's
promissory note or notes, if any, evidencing Borrower's Loan obligations
in favor of Lender, as well as any substitute, replacement or refinancing
note or notes therefor.
Permitted Liens. The words "Permitted Liens" mean: (a) liens and security
interests securing indebtedness owed by Borrower to Lender; (b) liens for
taxes, assessments, or similar charges either not yet due or being
contested in good faith; (c) liens of materialmen, mechanics,
warehousemen, or carriers, or other like liens arising in the ordinary
course of business and securing obligations which are not yet delinquent;
(d) purchase money liens or purchase money security interests upon or in
any property acquired or held by Borrower in the ordinary course of
business to secure indebtedness outstanding on the date of this Agreement
or permitted to be incurred under the paragraph of this Agreement titled
"Indebtedness and Liens"; (e) liens and security interests which, as of
the date of this Agreement, have been disclosed to and approved by the
Lender in writing; and (f) those liens and security interests which in the
aggregate constitute an immaterial and insignificant monetary amount with
respect to the net value of Xxxxxxxx's assets.
Related Documents. The words "Related Documents" mean and include without
limitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages,
deeds
10-31-1996 LOAN AGREEMENT Page 4
(Continued)
of trust, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
Security Agreement. The words "Security Agreement" mean and include
without limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract, or
otherwise, evidencing, governing, representing, or creating a Security
Interest.
Security Interest. The words "Security Interest" mean and include without
limitation any and all types of liens and encumbrances, whether created by
law, contract, or otherwise.
XXXX. The word "XXXX" means the Superfund Amendments and Reauthorization
Act of 1986 as now or hereafter amended.
Subordinated Debt. The words "Subordinated Debt" mean indebtedness and
liabilities of Borrower which have been subordinated by written agreement
to indebtedness owed by Borrower to Lender in form and substance
acceptable to Lender.
Tangible Net Worth. The words "Tangible Net Worth" mean Borrower's total
assets excluding all intangible assets (i.e., goodwill, trademarks,
patents, copyrights, organizational expenses, and similar intangible
items, but including leaseholds and leasehold improvements) less total
Debt.
Working Capital. The words "Working Capital" mean Borrower's current
assets, excluding prepaid expenses, less Borrower's current liabilities.
LINE OF CREDIT. Xxxxxx agrees to make Advances to Borrower from time to time
from the date of this Agreement to the Expiration Date, provided the aggregate
amount of such Advances outstanding at any time does not exceed the Borrowing
Base. Within the foregoing limits, Borrower may borrow, partially or wholly
prepay, and reborrow under this Agreement as follows.
Conditions Precedent to Each Advance. Xxxxxx's obligation to make any
Advance to or for the account of Borrower under this Agreement is subject
to the following conditions precedent, with all documents, instruments,
opinions, reports, and other items required under this Agreement to be in
form and substance satisfactory to Lender:
(a) Lender shall have received evidence that this Agreement and all
Related Documents have been duly authorized, executed, and delivered by
Xxxxxxxx to Lender.
(b) Xxxxxx shall have received such opinions of counsel, supplemental
opinions, and documents as Xxxxxx may request.
(e) Lender, at its option and for its sole benefit, shall have
conducted an audit of Xxxxxxxx's Accounts, books, records, and
operations, and Lender shall be satisfied as to their condition.
(f) Borrower shall have paid to Lender all fees, costs, and expenses
specified in this Agreement and the Related Documents as are then due
and payable.
(g) There shall not exist at the time of any Advance a condition which
would constitute an Event of Default under this Agreement, and Borrower
shall have delivered to Lender the compliance certificate called for in
the paragraph below titled "Compliance Certificate."
10-31-1996 LOAN AGREEMENT Page 5
(Continued)
Making Loan Advances. Advances under the credit facility, as well as
directions for payment from Borrower's accounts, may be requested orally
or in writing by authorized persons. Lender may, but need not, require
that all oral requests be confirmed in writing. Each Advance shall be
conclusively deemed to have been made at the request of and for the
benefit of Borrower (a) when credited to any deposit account of Xxxxxxxx
maintained with Lender or (b) when advanced in accordance with the
instructions of an authorized person. Lender, at its option, may set a
cutoff time, after which all requests for Advances will be treated as
having been requested on the next succeeding Business Day. Under no
circumstances shall Lender be required to make any Advance in an amount
less than $1,000.00.
Mandatory Loan Repayments. If at any time the aggregate principal amount
of the outstanding Advances shall exceed the applicable Borrowing Base,
Borrower, immediately upon written or oral notice from Lander, shall pay
to Lender an amount equal to the difference between the outstanding
principal balance of the Advances and the Borrowing Base. On the
Expiration Date, Borrower shall pay to Lender in full the aggregate unpaid
principal amount of all Advances then outstanding and all accrued unpaid
interest, together with all other applicable fees, costs and charges, if
any, not yet paid.
Loan Account. Lender shall maintain on its books a record of account in
which Lender shall make entries for each Advance and such other debits and
credits as shall be appropriate in connection with the credit facility.
Lender shall provide Borrower with periodic statements of Xxxxxxxx's
account, which statements shall be considered to be correct and
conclusively binding on Borrower unless Borrower notifies Lender to the
contrary within thirty (30) days after Xxxxxxxx's receipt of any such
statement which Borrower deems to be incorrect.
Schedules. Concurrently with the execution and delivery of this Agreement,
Xxxxxxxx shall execute and deliver to Lender a schedule of Accounts and
Eligible Accounts, in form and substance satisfactory to the Lender.
Thereafter and at such frequency as Lender shall require, Borrower shall
execute and deliver to Lender such supplemental schedules of Eligible
Accounts and such other matters and information relating to Xxxxxxxx's
Accounts as Lander may request.
Representations and Warranties Concerning Accounts. With respect to the
Accounts, Borrower represents and warrants to Lender: (a) Each Account
represented by Borrower to be an Eligible Account for purposes of this
Agreement conforms to the requirements of the definition of an Eligible
Account; (b) All Account information listed on schedules delivered to
Lender will be true and correct, subject to immaterial variance; and (c)
Lender, its assigns, or agents shall have the right at any time and at
Borrower's expense to inspect, examine, and audit Xxxxxxxx's records and
to confirm with Account Debtors the accuracy of such Accounts.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of Loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any Indebtedness exists:
Organization. Borrower is a corporation which is duly organized, validly
existing, and in good standing under the laws of the State of Maryland and
is validly existing and in good standing in all states in which Borrower is
doing business. Borrower has the full power and authority to own its
properties and to transact the businesses in which it is presently engaged
or presently proposes to engage. Borrower also is duly qualified as a
foreign corporation and is in good standing in all states in which the
failure to so qualify would have a material adverse effect on its businesses
or financial condition.
Authorization. The execution, delivery, and performance of this Agreement
and all Related Documents by Xxxxxxxx, to the extent to be executed,
delivered or performed by Xxxxxxxx, have been duly authorized by all
necessary action by Borrower; do not require the consent or approval of any
other person, regulatory authority or
10-31-1996 LOAN AGREEMENT Page 6
(Continued)
governmental body; and do not conflict with, result in a violation of, or
constitute a default under (a) any provision of its articles of
incorporation or organization, or bylaws, or any agreement or other
instrument binding upon Borrower or (b) any law, governmental regulation,
court decree, or order applicable to Borrower.
Financial Information. Each financial statement of Xxxxxxxx supplied to
Lender truly and completely disclosed Xxxxxxxx's financial condition as of
the date of the statement, and there has been no material adverse change in
Borrower's financial condition subsequent to the date of the most recent
financial statement supplied to Lender. Borrower has no material contingent
obligations except as disclosed in such financial statements.
Legal Effect. This Agreement constitutes, and any instrument or agreement
required hereunder to be given by Xxxxxxxx when delivered will constitute,
legal, valid and binding obligations of Borrower enforceable against
Borrower in accordance with their respective terms.
Properties. Except for Permitted Liens, Xxxxxxxx owns and has good title to
all of Borrower's properties free and clear of all Security Interests, and
has not executed any security documents or financing statements relating to
such properties. All of Xxxxxxxx's properties are titled in Borrower's legal
name, and Xxxxxxxx has not used, or filed a financing statement under, any
other name for at least the last five (5) years.
Hazardous Substances. The terms "hazardous waste," "hazardous substance," "
disposal," "release," and "threatened release," as used in this Agreement,
shall have the same meanings as set forth in the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C.
Section 9601, et seq. ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. No. 99-499 ("XXXX"), the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource
Conservation and Recovery Act, 49 U.S.C. Section 6901, et seq., or other
applicable state or Federal laws, rules, or regulations adopted pursuant to
any of the foregoing. Except as disclosed to and acknowledged by Xxxxxx in
writing, Xxxxxxxx represents and warrants that: (a) During the period of
Borrower's ownership of Borrower's properties, there has been no use,
generation, manufacture, storage, treatment, disposal, release or threatened
release of any hazardous waste or substance by any person on, under, or
about any such properties. (b) Borrower has no knowledge of, or reason to
believe that there has been (i) any use, generation, manufacture, storage,
treatment, disposal, release, or threatened release of any hazardous waste
or substance by any prior owners or occupants of any such properties, or
(ii) any actual or threatened litigation or claims of any kind by any person
relating to such matters. (c) Neither Borrower nor any tenant, contractor,
agent or other authorized user of any such properties shall use, generate,
manufacture, store, treat, dispose of, or release any hazardous waste or
substance on , under, or about any such properties; and any such activity
shall be conducted in compliance with all applicable federal, state, and
local laws, regulations, and ordinances, including without limitation those
laws, regulations and ordinances described above. Borrower authorizes Lender
and its agents to enter upon such properties to make such inspections and
tests as Lender may deem appropriate to determine compliance of such
properties with this section of the Agreement. Any inspections or tests made
by Lender shall be for Lender's purposes only and shall not be construed to
create any responsibility or liability on the part of Lender to Borrower or
to any other person. The representations and warranties contained herein are
based on Borrower's due diligence in investigating such properties for
hazardous waste. Borrower hereby (a) releases and waives any future claims
against Lender for indemnity or contribution in the event Borrower becomes
liable for cleanup or other costs under any such laws, and (b) agrees to
indemnity and hold harmless Lender against any and all claims, losses,
liabilities, damages, penalties, and expenses which Lender may directly or
indirectly sustain or suffer resulting from a breach of this section of the
Agreement or as a consequence of any use, generation, manufacture, storage,
disposal, release or threatened release occurring prior to Borrower's
ownership or interest in such properties, whether or not the same was or
should have been known to Borrower. The provisions of this section of the
Agreement, including the obligation to indemnify, shall survive the payment
of the Indebtedness and the termination or expiration of this Agreement and
shall not be affected by Lender's acquisition of any interest in any such
properties, whether by foreclosure or otherwise.
10-31-1996 LOAN AGREEMENT Page 7
(Continued)
Litigation and Claims. No litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against
Borrower is pending or threatened, and no other event has occurred which may
materially adversely affect Borrower's financial condition or properties,
other than litigation, claims, or other events, if any, that have been
disclosed to and acknowledged by Xxxxxx in writing.
Taxes. To the best of Xxxxxxxx's knowledge, all tax returns and reports of
Borrower that are or were required to be filed, have been filed, and all
taxes, assessments and other governmental charges have been paid in full,
except those presently being or to be contested by Borrower in good faith in
the ordinary course of business and for which adequate reserves have been
provided.
Lien Priority. Unless otherwise previously disclosed to Lender in writing,
Xxxxxxxx has not entered into or granted any Security Agreements, or
permitted the filing or attachment of any Security Interests on or affecting
any of the Collateral directly or indirectly securing repayment of
Borrower's Loan and Note, that would be prior or that may in any way be
superior to Xxxxxx's Security Interests and rights in and to such
Collateral.
Binding Effect. This Agreement, the Note, all Security Agreements directly
or indirectly securing repayment of Xxxxxxxx's Loan and Note and all of the
Related Documents are binding upon Borrower as well as upon Xxxxxxxx's
successors, representatives and assigns, and are legally enforceable in
accordance with their respective terms.
Commercial Purposes. Borrower intends to use the Loan proceeds solely for
business or commercial related purposes.
Employee Benefit Plans. Each employee benefit plan as to which Borrower may
have any liability complies in all material respects with all applicable
requirements of law and regulations, and (i) no Reportable Event nor
Prohibited Transaction (as defined in ERISA) has occurred with respect to
any such plan, (ii) Borrower has not withdrawn from any such plan or
initiated steps to do so, (iii) no steps have been taken to terminate any
such plan, and (iv) there are no unfunded liabilities other than those
previously disclosed to Lender in writing.
Location of Xxxxxxxx's Offices and Records. Borrower's place of business, or
Xxxxxxxx's Chief executive office, if Xxxxxxxx has more than one place of
business, is located at 00000 XxXxxxxxx Xxxx, Xxxx Xxxxxx, XX 00000. Unless
Borrower has designated otherwise in writing this location is also the
office or offices where Borrower keeps its records concerning the
Collateral.
Information. All information heretofore or contemporaneously herewith
furnished by Borrower to Lender for the purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all
information hereafter furnished by or on behalf of Borrower to Lender will
be, true and accurate in every material respect on the date as of which such
information is dated or certified; and none of such information is or will
be incomplete by omitting to state any material fact necessary to make such
information not misleading.
Survival of Representations and Warranties. Xxxxxxxx understands and agrees
that Xxxxxx, without independent investigation, is relying upon the above
representations and warranties in extending Loan Advances to Borrower.
Xxxxxxxx further agrees that the foregoing representations and warranties
shall be continuing in nature and shall remain in full force and effect
until such time as Borrower's Indebtedness shall be paid in full, or until
this Agreement shall be terminated in the manner provided above, whichever
is the last to occur.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Xxxxxx that, while
this Agreement is in effect, Borrower will:
Litigation. Promptly inform Xxxxxx in writing of (a) all material adverse
changes in Borrower's financial condition, and (b) all existing and all
threatened litigation, claims, investigations, administrative proceedings
or
10-31-1996 LOAN AGREEMENT Page 8
(Continued)
similar actions affecting Borrower or any Guarantor which could materially
affect the financial condition of Borrower or the financial condition of
any Guarantor.
Financial Records. Maintain its books and records in accordance with
generally accepted accounting principles, applied on a consistent basis,
and permit Xxxxxx to examine and audit Xxxxxxxx's books and records at all
reasonable times.
Financial Statements. Furnish Lender with, as soon as available, but in no
event later than ninety (90) days after the end of each fiscal year,
Xxxxxxxx's balance sheet and income statement for the year ended, audited
by a certified public accountant satisfactory to Lender, who shall state
that such financial statements present fairly the consolidated financial
position of Borrower as of the date of such financial statements and the
results of its operations for the period covered by such financial
statements in conformity with generally accepted accounting principles
applied on a consistent basis (except for changes in the application of
which such accountants concur) and shall not contain any "going concern"
or like qualification or exception or qualifications arising out of the
scope of the audit, and, as soon as available, but in no event later than
forty-five (45) days after the end of each fiscal quarter, Borrower's
balance sheet and profit and loss statement for the period ended, prepared
and certified as correct to the best knowledge and belief by Xxxxxxxx's
chief financial officer or other officer or person acceptable to Lender.
All financial reports required to be provided under this Agreement shall
be prepared in accordance with generally accepted accounting principles
applied on a consistent basis, and certified by Borrower as being true and
correct.
Additional Information. Furnish such additional information and
statements, lists of assets and liabilities, agings of receivables and
payables, inventory schedules, budgets, forecasts, tax returns, and other
reports with respect to Xxxxxxxx's financial condition and business
operations as Lender may reasonably request from time to time.
Financial Covenants and Ratios. Comply with the following covenants and
ratios:
Net Worth Ratio. Maintain a ratio of Total Liabilities to Tangible Net
Worth of less than 1.30 to 1.00. Current Ratio. Maintain a ratio of
Current Assets to Current Liabilities in excess of 2.00 to 1.00.
Income. Maintain not less than the following Income level: maintain not
less than quarterly net Income greater than or equal to 0, except for
quarter end February 1997 when not loss is not to exceed $250,000.00.
Except as provided above, all computations made to determine compliance
with the requirements contained in this paragraph shall be made in
accordance with generally accepted accounting principles, applied on a
consistent basis, and certified by Borrower as being true and correct.
Insurance. Maintain fire and other risk insurance, public liability
insurance, and such other insurance as Lender may from time to time
reasonably require with respect to Borrower's properties and
operations, in form, amounts, coverages and with insurance companies
acceptable to Lender. Borrower, upon request of Xxxxxx, will deliver to
Lender from time to time the policies or certificates of insurance in
form satisfactory to Lender, including stipulations that coverages will
not be canceled or diminished without at least thirty (30) days' prior
written notice to Lender. Each insurance policy also shall include an
endorsement providing that coverage in favor of Lender will not be
impaired in any way by any act, omission or default of Borrower or any
other person. In connection with all policies covering assets in which
Lender holds or is offered a security interest for the Loans, Borrower
will provide Lender with such loss payable or other endorsements as
Lender may require.
Insurance Reports. Furnish to Lender, upon request of Lender, reports on
each existing insurance policy showing such information as Lender may
reasonably request, including without limitation the following: (a) the
name of the insurer; (b) the risks insured; (c) the amount of the policy;
(d) the properties insured; (a) the then current property values on the
basis of which insurance has been obtained, and the manner of determining
those values; and (f) the expiration date of the policy. In addition, upon
request of Xxxxxx (however not more often than
10-31-1996 LOAN AGREEMENT Page 9
(Continued)
annually), Borrower will have an independent appraiser satisfactory to
Lender determine, as applicable, the actual cash value or replacement cost
of any Collateral. The cost of such appraisal shall be paid by Borrower.
Other Agreements. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between Borrower and any
other party and notify Lender immediately in writing of any default in
connection with any other such agreements.
Loan Fees and Charges. In addition to all other agreed upon fees and
charges, pay the following: a commitment fee at the rate of 25% per annum
(based on a year of 360 days for the actual number of days elapsed) on the
average daily unused portion of the Line of Credit, payable on the 1st day
of each month after the date hereof.
Loan Proceeds. Use all Loan proceeds solely for Xxxxxxxx's business
operations, unless specifically consented to the contrary by Xxxxxx in
writing.
Taxes, Charges and Liens. Pay and discharge when due all of its
indebtedness and obligations, including without limitation all
assessments, taxes, governmental charges, levies and liens, of every kind
and nature, imposed upon Borrower or its properties, income, or profits,
prior to the date on which penalties would attach, and all lawful claims
that, if unpaid, might become a lien or charge upon any of Borrower's
properties, income, or profits. Provided however, Xxxxxxxx will not be
required to pay and discharge any such assessment, tax, charge, xxxx, xxxx
or claim so long as (a) the legality of the same shall be contested in
good faith by appropriate proceedings, and (b) Borrower shall have
established on its books adequate reserves with respect to such contested
assessment, tax, charge, levy, lien, or claim in accordance with generally
accepted accounting practices. Xxxxxxxx, upon demand of Lender, will
furnish to Lender evidence of payment of the assessments, taxes, charges,
levies, liens and claims and will authorize the appropriate governmental
official to deliver to Lender at any time a written statement of any
assessments, taxes, charges, levies, liens and claims against Xxxxxxxx's
properties, income, or profits.
Performance. Perform and comply with all terms, conditions, and provisions
set forth in this Agreement and in the Related Documents in a timely
manner, and promptly notify Xxxxxx if Xxxxxxxx learns of the occurrence of
any event which constitutes an Event of Default under this Agreement or
under any of the Related Documents.
Operations. Maintain executive and management personnel with substantially
the same qualifications and experience as the present executive and
management personnel; provide written notice to Lender of any change in
executive and management personnel; conduct its business affairs in a
reasonable and prudent manner and in compliance with all applicable
federal, state and municipal laws, ordinances, rules and regulations
respecting its properties, charters, businesses and operations, including
without limitation, compliance with the Americans With Disabilities Act
and with all minimum funding standards and other requirements of ERISA and
other laws applicable to Borrower's employee benefit plans.
Inspection. Permit employees or agents of Lender at any reasonable time to
inspect any and all Collateral for the Loan or Loans and Xxxxxxxx's other
properties and to examine or audit Xxxxxxxx's books, accounts, and records
and to make copies and memoranda of Xxxxxxxx's books, accounts, and
records. If Borrower now or at any time hereafter maintains any records
(including without limitation computer generated records and computer
software programs for the generation of such records) in the possession of
a third party, Borrower, upon request of Xxxxxx, shall notify such party
to permit Lender free access to such records at all reasonable times and
to provide Lender with copies of any records it may request, all at
Borrower's expense.
Compliance Certificate. Unless waived in writing by Xxxxxx, provide Lender
at least annually and at the time of each disbursement of Loan proceeds
with a certificate executed by Xxxxxxxx's chief financial officer, or
other officer or person acceptable to Lender, certifying that the
representations and warranties set forth in this Agreement are true and
correct as of the date of the certificate and further certifying that, as
of the date of the certificate, no Event of Default exists under this
Agreement.
10-31-1996 LOAN AGREEMENT Page 10
(Continued)
Environmental Compliance and Reports. Borrower shall comply in all
respects with all environmental protection federal, state and local laws,
statutes, regulations and ordinances; not cause or permit to exist, as a
result of an intentional or unintentional action or omission on its part
or on the part of any third party, on property owned and/or occupied by
Borrower, any environmental activity where damage may result to the
environment, unless such environmental activity is pursuant to and in
compliance with the conditions of a permit issued by the appropriate
federal, state or local governmental authorities; shall furnish to Lender
promptly and in any event within thirty (30) days after receipt thereof a
copy of any notice, summons, lien, citation, directive, letter or other
communication from any governmental agency or instrumentality concerning
any intentional or unintentional action or omission on Borrower's part in
connection with any environmental activity whether or not there is damage
to the environment and/or other natural resources.
Additional Assurances. Make, execute and deliver to Lender such promissory
notes, mortgages, deeds of trust, security agreements, financing
statements, instruments, documents and other agreements as Lender or its
attorneys may reasonably request to evidence and secure the Loans and to
perfect all Security Interests.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
Indebtedness and Liens. (a) Except for trade debt incurred in the normal
course of business and indebtedness to Lender contemplated by this
Agreement, create, incur or assume indebtedness for borrowed money,
including capital leases, (b) except as allowed as a Permitted Lien, sell,
transfer, mortgage, assign, pledge, lease, grant a security interest in,
or encumber any of Borrower's assets, or (c) sell with recourse any of
Borrower's accounts, except to Lender.
Continuity of Operations. (a) Engage in any business activities
substantially different than those in which Borrower is presently engaged,
(b) cease operations, liquidate, merge, transfer, acquire or consolidate
with any other entity, change ownership, change its name, dissolve or
transfer or sell Collateral out of the ordinary course of business, (c)
pay any dividends on Borrower's stock (other than dividends payable in its
stock), provided, however that notwithstanding the foregoing, but only so
long as no Event of Default has occurred and is continuing or would result
from the payment of dividends, if Borrower is a "Subchapter S Corporation"
(as defined in the Internal Revenue Code of 1986, as amended), Borrower
may pay cash dividends on its stock to its shareholders from time to time
in amounts necessary to enable the shareholders to pay income taxes and
make estimated income tax payments to satisfy their liabilities under
federal and state law which also solely from their status as Shareholders
of a Subchapter S Corporation because of their ownership of shares of
stock of Borrower, or (d) purchase or retire any of Borrower's outstanding
shares or alter or amend Borrower's capital structure.
Loans, Acquisitions and Guaranties. (a) Loan, invest in or advance money
or assets, (b) purchase, create or acquire any interest in any other
enterprise or entity, or (c) Incur any obligation as surety or guarantor
other than in the ordinary course of business.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to
Borrower, whether under this Agreement or under any other agreement, Lender
shall have no obligation to make Loan Advances or to disburse Loan proceeds if:
(a) Borrower or any Guarantor is in default under the terms of this Agreement or
any of the Related Documents or any other agreement that Borrower or any
Guarantor has with Lender; (b) Borrower or any Guarantor becomes insolvent,
files a petition in bankruptcy or similar proceedings, or is adjudged a
bankrupt; (c) there occurs a material adverse change in Borrower's financial
condition, in the financial condition of any Guarantor, or in the value of any
Collateral securing any Loan; or (d) any Guarantor seeks, claims or otherwise
attempts to limit, modify or revoke such Guarantor's guaranty of the Loan or any
other loan with Lender.
10-31-1996 LOAN AGREEMENT Page 11
(Continued)
ADDITIONAL FINANCIAL INFORMATION. Borrower shall execute and deliver to Lender a
schedule and aging of receivables as of the end of each month end accounting
period of the Borrower, in form and content satisfactory to Lender, which shall
be Certified if required by Lender, within 15 days after the end of each such
accounting period of Borrower.
ADDITIONAL FINANCIAL COVENANTS AND RATIOS. Comply with the following covenants
and ratios:
Tangible Net Worth. Maintain a minimum Tangible Net Worth of not less than
$18,500,000.00 for fiscal year 1996, increasing to $19,250,000.00 as of
August 31, 1997.
Minimum Cash Flow. Maintain a minimum annual cash flow of not less than
$1,500,000.00.
LIMITS ON ELIGIBLE ADVANCES. The amount of the advances shall be equal to 80% of
unbonded, billed receivables less than 90 days; plus 25% of unbonded, unbilled
receivables less than 90 days; with total bank exposure including term loans,
not to exceed $10,000,000.00.
XXXXXX'S RIGHT OF SETOFF. In addition to all liens upon and rights of setoff
against the moneys, securities or other property of Borrower given to Lender by
law, Lender shall have, with respect to Borrower's obligations to Lender under
this Agreement and to the extent permitted by law, a contractual possessory
security interest in and a right of setoff against, and Borrower hereby assigns,
conveys, delivers, pledges, and transfers to Lender all of Xxxxxxxx's right,
title, and interest in and to all deposits, moneys, securities, and other
property of Borrower now or hereafter in the possession of or on deposit with
Lender, whether held in a general or special account or deposit, whether held
jointly with someone else, or whether held for safekeeping or otherwise,
excluding however all IRA, Xxxxx, and trust accounts. Every such security
interest and right of setoff may be exercised without demand upon or notice to
Borrower. No security interest or right of setoff shall be deemed to have been
waived by any act or conduct on the part of Lender or by any neglect to exercise
such right of setoff or to enforce such security interest or by any delay in so
doing. Every right of setoff and security interest shall continue in full force
and effect until such right of setoff or security interest is specifically
waived or released by an instrument in writing executed by Xxxxxx.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default
under this Agreement: Default on Indebtedness. Failure of Borrower to make
any payment when due on the Indebtedness. Other Defaults. Failure of
Borrower or any Grantor to comply with or to perform when due any other
term, obligation, covenant or condition contained in this Agreement or in
any of the Related Documents, or failure of Borrower to comply with or to
perform any other term, obligation, covenant or condition contained in any
other agreement between Lender and Borrower.
Default In Favor of Third Parties. Should Borrower or any Grantor default
under any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person
that may materially affect any of Borrower's property or Borrower's or any
Grantor's ability to repay the Loans or perform their respective obligations
under this Agreement or any of the Related Documents.
False Statements. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Borrower or any Grantor under this
Agreement or the Related Documents is false or misleading in any material
respect at the time made or furnished, or becomes false or misleading at any
time thereafter.
Defective Collateralization. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any Security
Agreement to create a valid and perfected Security Interest) at any time and
for any reason.
10-31-1996 LOAN AGREEMENT Page 12
(Continued)
Insolvency. The dissolution or termination of Borrower's existence as a
going business, or a trustee or receiver is appointed for Borrower or for
all or a substantial portion of the assets of Borrower, or Xxxxxxxx makes a
general assignment for the benefit of Xxxxxxxx's creditors, or Borrower
files for bankruptcy, or an involuntary bankruptcy petition is filed against
Borrower and such involuntary petition remains undismissed for sixty (60)
days.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower, any creditor
of any Grantor against any collateral securing the Indebtedness, or by any
governmental agency. This includes a garnishment, attachment, or levy on or
of any of Borrower's deposit accounts with Lender.
Events Affecting Guarantor. Any of the preceding events occurs with respect
to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes
incompetent, or revokes or disputes the validity of, or liability under, any
Guaranty of the Indebtedness.
Change In Ownership. Any change in controlling ownership of twenty-five
percent (25%) or more of the common stock of Borrower.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where
otherwise provided in this Agreement or the Related Documents, all commitments
and obligations of Lender under this Agreement or the Related Documents or any
other agreement immediately will terminate (including any obligation to make
Loan Advances or disbursements), and, at Lender's option, all sums owing in
connection with the Loans, including all principal, interest, and all other
fees, costs and charges, it any, will become immediately due and payable, all
without notice of any kind to Borrower, except that in the case of an Event of
Default of the type described in the "Insolvency" subsection above, such
acceleration shall be automatic and not optional. In addition, Lender shall have
all the rights and remedies provided in the Related Documents or available at
law, in equity, or otherwise. Except as may be prohibited by applicable law, all
of Lender's rights and remedies shall be cumulative and may be exercised
singularly or concurrently. Election by Xxxxxx to pursue any remedy shall not
exclude pursuit of any other remedy, and an election to make expenditures or to
take action to perform an obligation of Borrower or of any Grantor shall not
affect Xxxxxx's right to declare a default and to exercise its rights and
remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
Amendments. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Agreement. No alteration of or amendment to
this Agreement shall be effective unless given in writing and signed by
the party or parties sought to be charged or bound by the alteration or
amendment.
Applicable Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Maryland. XXXXXX AND
BORROWER EACH HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
WHICH LENDER OR BORROWER MAY BE PARTIES, ARISING OUT OF, OR IN ANY WAY
PERTAINING TO, THIS AGREEMENT. IT IS AGREED THAT THIS WAIVER CONSTITUTES A
WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS
OR PROCEEDINGS. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE
BY XXXXXX AND XXXXXXXX, AND XXXXXX AND BORROWER EACH HEREBY REPRESENT THAT
NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS
EFFECT. XXXXXXXX FURTHER REPRESENTS THAT XXXXXXXX HAS BEEN REPRESENTED IN
THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL, SELECTED OF XXXXXXXX'S OWN FREE WILL, AND THAT
XXXXXXXX HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
10-31-1996 LOAN AGREEMENT Page 13
(Continued)
Caption Headings. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions of
this Agreement.
Multiple Parties; Corporate Authority. All obligations of Borrower under this
Agreement shall be joint and several, and all references to Borrower shall mean
each and every Borrower. This means that each of the Borrowers signing below is
responsible for all obligations in this Agreement.
Consent to Jurisdiction. Borrower irrevocably submits to the jurisdiction of any
state or federal court sitting in the State of Maryland over any suit, action,
or proceeding arising out of or relating to this Agreement. Borrower irrevocably
waives, to the fullest extent permitted by law, any objection that Borrower may
now or hereafter have to the laying of venue of any such suit, action, or
proceeding brought in any such court and any claim that any such suit, action,
or proceeding brought in any such court has been brought in an inconvenient
forum. Final judgment in any such suit, action, or. proceeding brought in any
such court shall be conclusive and binding upon Borrower and may be enforced in
any court in which Borrower is subject to jurisdiction by a suit upon such
judgment provided that service of process is affected upon Borrower as provided
in this Agreement or as otherwise permitted by applicable law.
Consent to Loan Participation. Xxxxxxxx agrees that Xxxxxx may at any time grant
participating interests in the Loans to one or more purchasers (each a
"Participant). In such event, whether or not upon notice to Xxxxxxxx, Xxxxxx
shall remain responsible for the performance of its obligations hereunder, and
Xxxxxx shall continue to deal solely and directly with Borrower in connection
with Xxxxxx's rights and obligations under this Agreement. Any agreement
pursuant to which Lender may grant such a participation interest shall provide
that Lender shall retain the sole right and responsibility to enforce the
obligations of Borrower hereunder including, without limitation, the right to
approve any amendment, modification or waiver of any provision of concerning the
Loans; provided that such participation agreement may provide that Lender will
not agree to any such modification, amendment or waiver which would have the
effect increasing or extending the term hereof or subjecting Lender to any
additional obligation, reducing the principal of or rate of interest on any
Loan, postponing the date fixed for any payment of principal or of interest on
any Loan or fees hereunder without the consent of the Participant. Lender may at
any time assign all or any portion of its rights with respect to the Loans to a
Federal Reserve Bank. No such assignment shall release Lender from its
obligations hereunder. Lender may furnish any information concerning Borrower in
its possession from time to time to Participants (including prospective
Participants) and may furnish such information in response to credit inquiries
consistent with general banking practice.
Costs and Expenses. Subject to any limits under applicable law, if Xxxxxx hires
an attorney to help enforce this Agreement or to collect any Indebtedness,
Xxxxxxxx agrees to pay Xxxxxx's attorneys' fees, and all of Xxxxxx's other
collection expenses, whether or not there is a lawsuit and including legal
expenses for bankruptcy proceedings.
Notices. All notices required to be given under this Agreement shall be given in
writing, may be sent by telefacsimilie, and shall be effective when actually
delivered if hand delivered or when deposited with a nationally recognized
overnight courier or deposited as certified or registered mal in the United
States mail, first class, postage prepaid, addressed to the party to whom the
notice is to be given at the address shown above. Any party may change its
address for notices under this Agreement by giving formal written notice to the
other parties, specifying that the purpose of the notice is to change the
party's address. To the extent permitted by applicable law, if there is more
than one Borrower, notice to any Borrower will constitute notice to all
Borrowers. For notice purposes, Borrower will keep Lender informed at all times
of Xxxxxxxx's current address(es).
Severability. If a court of competent jurisdiction finds any provision of this
Agreement to be invalid or unenforceable as to any person or circumstance, such
finding shall not render that provision invalid or unenforceable as to any other
persons or circumstances. If feasible, any such offending provision shall be
deemed to be modified to be within the limits of enforceability or validity;
however, if the offending provision cannot be so modified, it shall be stricken
and all other provisions of this Agreement in all other respects shall remain
valid and enforceable.
10-31-1996 LOAN AGREEMENT Page 14
(Continued)
Subsidiaries and Affiliates of Borrower. To the extent the context of any
provisions of this Agreement makes it appropriate, including without limitation
any representation, warranty or covenant, the word "Borrower"' as used herein
shall include all subsidiaries and affiliates of Borrower. Notwithstanding the
foregoing however, under no circumstances shall this Agreement be construed to
require Lender to make any Loan or other financial accommodation to any
subsidiary or affiliate of Borrower.
Successors and Assigns. All covenants and agreements contained by or on behalf
of Borrower shall bind its successors and assigns and shall inure to the benefit
of Lender, its successors and assigns. Borrower shall not, however, have the
right to assign its rights under this Agreement or any interest therein, without
the prior written consent of Lender.
Survival. All warranties, representations, and agreements of Borrower in this
Agreement shall survive the making of the Loan or Loans contemplated hereby, and
shall be deemed made and redated by Xxxxxxxx at the time of the making of each
disbursement of Loan proceeds.
Time is of the Essence. Time is of the essence in the performance of this
Agreement.
Waiver. Indulgence by Xxxxxx with respect to any of the terms and conditions of
this Agreement or the failure of Lender to exercise any of its rights under this
Agreement shall not constitute a waiver thereof, and Borrower shall remain
liable for the strict performance of such terms and conditions until this
Agreement shall be terminated. No provision of this Agreement may be waived or
modified orally, but all such waivers or modifications shall be in writing.
Whenever the consent of Lender is required under this Agreement, the granting of
such consent by Xxxxxx in one instance shall not constitute Lender's continuing
consent in subsequent instances, and in all cases such consent may be granted or
withhold in the sole discretion of Lender.
10-31-1996 LOAN AGREEMENT Page 15
(Continued)
THIS LOAN AGREEMENT IS SIGNED, SEALED AND DELIVERED EFFECTIVE IN ALL RESPECTS AS
OF OCTOBER 31, 1996.
BORROWER:
EA Engineering, Science, and Technology, Inc.
By: (SEAL)
Xxxxxx X. Xxxxxxx, Executive Vice President-Chief Financial Officer
LENDER:
SIGNET BANK
By: Xxxx Xxxxxxxx, Vice President
Authorized Officer
SIGNET BANK
PROMISSORY NOTE
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$10,000,000.00 10-31-1996 01-31-1998 0124843566 000 EAEngine 17548
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Borrower: EA Engineering Science and Technology, Inc. Lender: SIGNET BANK
00000 XxXxxxxxx Xxxx XXXXXX XXXXX
Xxxx Xxxxxx, XX 00000 0 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Principal Amount: $10,000,000.00 Initial Rate: 6.953% Date of Note: October 31, 1996
PROMISE TO PAY. EA Engineering, Science, and Technology, Inc. ("Borrower")
promises to pay to SIGNET BANK ("Lender"), or order, in lawful money of the
United States of America, the principal amount of Ten Million & 00/100 Dollars
($10,000,000.00) or so much as may be outstanding, together with interest on the
unpaid outstanding principal balance of each advance. Interest shall be
calculated from the date of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in one payment of all outstanding principal
plus all accrued unpaid Interest on January 31, 1998. In addition, Xxxxxxxx will
pay regular monthly payments of accrued unpaid interest beginning November 1,
1996, and all subsequent interest payments are due on the same day of each month
after that. Interest on this Note is computed on a 365/360 simple interest
basis; that is, by applying the ratio of the annual interest rate over a year of
360 days, multiplied by the outstanding principal balance, multiplied by the
actual number of days the principal balance is outstanding. Borrower will pay
Lender at Xxxxxx's address shown above or at such other place as Lender may
designate in writing. Unless otherwise agreed or required by applicable law,
payments will be applied first to accrued unpaid interest, then to principal,
and any remaining amount to any unpaid collection costs and late charges.
VARIABLE INTEREST RATE. Subject to designation of a different interest rate
index by Borrower as provided below, the interest rate on this Note is subject
to change from time to time based on changes in an independent index which is
the per annum rate of interest determined by Lender to equal the offered rate on
30 day Eurodollar deposits which appear on the display designated as Page Libor
on the Reuters Monitor Money Rates Service (the "Index"). The Index is not
necessarily the lowest rate charged by Lender on its loans. If the Index becomes
unavailable during the term of this loan, Lender may designate a substitute
index after notice to Borrower. Lender will tell Borrower the current Index rate
upon Xxxxxxxx's request. Borrower understands that Lender may make loans based
on other rates as well. The interest rate change will not occur more often than
each 30 days. The Index currently Is 5.453% per annum. The interest rate to be
applied to the unpaid principal balance of this Note will be at a rate of 1.500
percentage points over the Index, resulting in an initial rate of 6.953% per
annum. NOTICE: Under no circumstances will the interest rate on this Note be
more than the maximum rate allowed by applicable law.
INTEREST RATE OPTIONS. The following interest rate options are available under
this Note:
(a) Default Option. The interest rate margin and index described in the
"VARIABLE INTEREST RATE" paragraph above (the "Default Option").
10-31-1996 PROMISSORY NOTE Page 2
(Continued)
(b) Prime Rate. For purposes of this Note, Prime Rate shall mean 90% of
the announced prime rate of the Lender.
When the interest rate is based on a fixed rate, the rate shall be in effect for
a period of the number of days or months as indicated in the rate option
description (the "Interest Period"), in any case extended to the next succeeding
business day when necessary, beginning on a borrowing date, conversion date or
expiration date of the then current Interest Period. Adjustments in the interest
rate due to changes in the maximum nonusurious interest rate allowed (the
"Highest Lawful Rate") shall be made on the effective day of any change in the
Highest Lawful Rate.
Provided Borrower is not in default under this Note, Borrower may designate in
advance which of the above interest rate indexes shall be applicable to any loan
advance under this Note and shall designate any optional Interest Period
applicable to any fixed rate loan or advance. In the absence of any such
designation, the interest rate option shall be the Default Option. Thereafter,
unpaid principal balances under this Note may be converted (at the end of an
Interest Period if the index used to determine the interest rate therefore is a
fixed rate) to another of the above interest rate options, or continued for an
additional interest period, when applicable, as designated by Borrower in
advance; and in the absence of sufficient advance designation as to conversion
to or continuation of a fixed rate index, the index shall be converted to the
Default Option. Notwithstanding the foregoing, a fixed rate index may not be
elected for a loan or advance under this Note, nor any conversion to or
continuation of a fixed rate index be elected, if the Interest Period thereof
would extend beyond the maturity of this Note.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed
earlier than it is due. Early payments will not, unless agreed to by Xxxxxx in
writing, relieve Xxxxxxxx of Xxxxxxxx's obligation to continue to make payments
of accrued unpaid interest. Rather, they will reduce the principal balance due.
DEFAULT. Borrower will be in default if any of the following happens: (a) the
failure of any "Party" (which term shall mean and include each Borrower,
endorser, surety and guarantor of this Note) to make any payment on this Note or
on any other indebtedness due Lender when due; (b) if any asset(s) of a Party
are attached, levied upon, seized or repossessed or if any asset(s) of a Party
should come into the possession of a receiver, trustee, custodian or assignee
for the benefit of creditors, or if a Party makes an assignment for the benefit
of creditors; (c) the failure of a Party to observe or perform any obligation or
covenant contained in any agreement, document or instrument furnished in
connection herewith or in any other agreement between a Party and Lender; (d)
any representation or warranty at any time made by a Party to Lender in
connection herewith or in any other agreement between a Party and Lender, or in
any document or instrument delivered to Lender in connection herewith or
pursuant to such other agreement, shall have been materially false at the time
it was made; (e) the termination or withdrawal of a Party's guaranty with
respect to any indebtedness due Lender; (f) any Party files a petition in
bankruptcy, petitions or applies to any tribunal for any receiver or any trustee
of a Party or any substantial part of its property, or commences any proceeding
relating to such party under any insolvency, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in affect; (g) if, within 30 days after
the filing of a petition in bankruptcy against a Party or the commencement of
any proceeding against a Party seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or future statute, law or regulation, such petition or proceeding shall
not have dismissed, or, if, within 30 days after the appointment, without the
consent or acquiescence of a Party, of any trustee, receiver or liquidator of
such Party or of all or any substantial part of the properties of the such
Party, such appointment shall not have been vacated; (h) the application for the
appointment of a receiver for a party or for property of a Party; (i) the making
or sending of a notice of an intended bulk sale by a Party, (j) commencement of
any foreclosure, levy, seizure or forfeiture proceeding, whether by judicial.
self-help, repossession, or any other method, by any creditor of a Party, any
creditor of the owner of any collateral securing this Note, or by any
governmental agency with respect to a Party or such collateral; (k) it any event
occurs which is or, with the passage of time and/or the giving of notice, could
be a default under or breach of the terms of any instrument or document
evidencing a debt or obligation of a Party to any third party and is not cured
within five (5) days after the occurrence thereof; (1) any judgment against a
Party or any attachment against it or its property remains unpaid, undischarged,
10-31-1996 PROMISSORY NOTE Page 3
(Continued)
unbonded or undismissed for a period of 30 days, unless and to the extent that
such judgment is appealed in good faith in a court of higher jurisdiction and
such appeal remains pending; (m) if any proceeding is filed for the dissolution
or liquidation of a Party; (n) if any Party shall be enjoined or restrained in
any manner from conducting its business in whole or in part, and such injunction
shall not be dismissed or dissolved within thirty (30) days after the filing
thereof; (o) if any tax lien or notice thereof is filed against a Party or any
of the assets of a Party and remains undismissed, unpaid or unbounded for a
period of thirty (30) days; (p) if, without Lender's prior written consent, any
Party which is not a natural person enters into or becomes a party to any
merger, consolidation or share exchange or if any Party sells, transfers,
conveys or leases, except in the ordinary course of business, any significant
part of its assets or properties or (if not a natural person) alters its capital
structure, business activities or scope of operations; (q) if, without Lender's
prior written consent, there is a sale, exchange or transfer of the voting
control or any significant portion of the stock or ownership interests of any
Party which is not a natural person; (r) if any Party who is a natural person
shall die or become incompetent.*
LENDER'S RIGHTS. Upon default, Xxxxxx may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest, together with all other
applicable fees, costs and charges, if any, immediately due and payable, without
notice, and then Borrower will pay that amount. Upon default, including failure
to pay upon final maturity, Lender, at its option, may also, if permitted under
applicable law, increase the variable interest rate on this Note to 4.500
percentage points over the Index. The interest rate will not exceed the maximum
rate permitted by applicable law. Furthermore, subject to any limits under
applicable law, upon default, Xxxxxxxx also agrees to pay Xxxxxx's attorneys'
fees, and all of Xxxxxx's other collection expenses, whether or not there is a
lawsuit and including without limitation legal expenses for bankruptcy
proceedings. This Note shall be governed by, construed and enforced in
accordance with the laws of the State of Maryland. XXXXXX AND BORROWER EACH
HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH LENDER OR
BORROWER MAY BE PARTIES, ARISING OUT OF, OR IN ANY WAY PERTAINING TO, THIS NOTE.
IT IS AGREED THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL
CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS. THIS WAIVER IS
KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY XXXXXX AND XXXXXXXX, AND XXXXXX AND
BORROWER EACH HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE
BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY
WAY MODIFY OR NULLIFY ITS EFFECT. XXXXXXXX FURTHER REPRESENTS THAT XXXXXXXX HAS
BEEN REPRESENTED IN THE SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY
INDEPENDENT LEGAL COUNSEL, SELECTED OF XXXXXXXX'S OWN FREE WILL, AND THAT
XXXXXXXX HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $15.00 if Borrower
makes a payment on Borrower's loan and the check with which Borrower pays is
later dishonored.
XXXXXX'S RIGHT OF SETOFF. In addition to all liens upon and rights of setoff
against the moneys, securities or other property of Borrower given to Lender by
law, Lender shall have, with respect to Borrower's obligations to Lender under
this Note and to the extent permitted by law, a contractual possessory security
interest in and a right of setoff against, and Borrower hereby assigns, conveys,
delivers, pledges, and transfers to Lender all of Xxxxxxxx's right, title, and
interest in and to all deposits, moneys, securities, and other property of
Borrower now or hereafter in the possession of or on deposit with Lender,
whether held in a general or special account or deposit, whether held jointly
with someone else, or whether held for safekeeping or otherwise, excluding
however all IRA, Xxxxx, and trust accounts. Every such
*DEFAULT. Borrower will be granted a 15-day cure period with respect to all
of the aforementioned, except Sections D, E, and F. The 15-day cure period
will commence on the date of technical default, and will terminate on the
15th calendar day thereafter.
10-31-1996 PROMISSORY NOTE Page 4
(Continued)
security interest and right of setoff may be exercised without demand upon or
notice to Borrower. No security interest or right of setoff shall be deemed to
have been waived by any act or conduct on the part of Lender or by any neglect
to exercise such right of setoff or to enforce such security interest or by any
delay in so doing. Every right of setoff and security interest shall continue in
full force and effect unfit such right of setoff or security interest is
specifically waived or released by an instrument in writing executed by Xxxxxx.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances
hereunder shall be conclusively presumed to have been made to and for the
benefit of and at the request of Borrower when: (1) deposited or credited to an
account of Borrower with Xxxxxx, notwithstanding that such advance was
requested, orally or in writing, by someone other than the person(s) signing
below or that someone other than the person(s) signing below is authorized to
draw on such account and may or does withdraw the whole or part of any such
advance; or (2) made in accordance with oral or written instructions of Borrower
or anyone signing below for or on behalf of Borrower. Lender is hereby
authorized to maintain records of the date and amount of each advance, the date
and amount of any payment of principal or interest and the principal balance
then remaining unpaid hereon. Borrower hereby agrees that the amount so
evidenced in such records shall, for all purposes, constitute prima facie
evidence thereof and shall be binding upon Borrower, absent manifest error.
LATE CHARGE. Xxxxxxxx agrees to pay to Xxxxxx on demand a late charge not to
exceed 5% of the amount of any payment of principal or interest. or both, that
is more than ten (10) days past due.
ADDITIONAL PROVISION. In the event tangible net worth ratio as measured at the
end of each fiscal quarter equals to or exceeds 1.25x, interest will be charged,
at EA Engineering, Science and Technology, Inc. option on either the Lender's
Prime Rate of interest as it changes from time to time or LIBOR plus 200 basis
points.
CONSENT TO JURISDICTION. Borrower irrevocably submits to the jurisdiction of any
state or federal court sitting in the State of Maryland over any suit, action,
or proceeding arising out of or relating to this Note. Borrower irrevocably
waives, to the fullest extent permitted by law, any objection that Borrower may
now or hereafter have to the laying of venue of any such suit, action, or
proceeding brought in any such court and any claim that any such suit, action,
or proceeding brought in any such court has been brought in an inconvenient
forum. Final judgment in any such suit, action, or proceeding brought in any
such court shall be conclusive and binding upon Borrower and may be enforced in
any court in which Borrower is subject to jurisdiction by a suit upon such
judgment provided that service of process is affected upon Borrower as provided
in this Note or as otherwise permitted by applicable law.
GENERAL PROVISIONS. This loan is being made under the terms and provisions of
the Maryland Interest and Usury Law. If any part of this Note cannot be
enforced, this fact will not affect the rest of the Note. In particular, this
section means (among other things) that Borrower does not agree or intend to
pay, and Lender does not agree or intend to contract for, charge, collect, take,
reserve or receive (collectively referred to herein as "charge or collect"), any
amount in the nature of interest or in the nature of a fee for this loan, which
would in any way or event (including demand, prepayment, or acceleration) cause
Lender to charge or collect more for this loan than the maximum Lender would be
permitted to charge or collect by federal law or the law of the State of
Maryland (as applicable). Any such excess interest or unauthorized fee shall,
instead of anything stated to the contrary, be applied first to reduce the
principal balance of this loan, and when the principal has been paid in full, be
refunded to Borrower. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, protest and notice of dishonor. Upon any change
in the terms of this Note, and unless otherwise expressly stated in writing, no
party who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that Lender
may renew or extend (repeatedly and for any length of time) this loan, or for
any party or guarantor or collateral; or impair, fail to realize upon or perfect
Lender's security Interest in the collateral; and take
10-31-1996 PROMISSORY NOTE Page 5
(Continued)
any other action deemed necessary by Xxxxxx without the consent of or notice to
anyone. All such parties also agree that Xxxxxx may modify this loan without the
consent of or notice to anyone other than the party with whom the modification
is made.
PRIOR TO SIGNING THIS NOTE, XXXXXXXX READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. XXXXXXXX AGREES TO
THE TERMS OF THE NOTE.
BORROWER:
A Engineering, Science, and Technology, Inc.
By: (SEAL)
Xxxxxx X. Xxxxxxx, Executive Vice President-Chief Financial Officer
SIGNET BANK
DISBURSEMENT REQUEST AND AUTHORIZATION
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$10,000,000.00 10-31-1996 01-31-1998 0124843566 000 EAEngine 17548
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Borrower: EA Engineering Science and Technology, Inc. Lender: SIGNET BANK
00000 XxXxxxxxx Xxxx XXXXXX XXXXX
Xxxx Xxxxxx, XX 00000 0 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
LOAN TYPE. This is a Variable Rate (1.500% over per annum rate of interest
determined by Lender to equal the offered rate on 30 day Eurodollar deposits
which appear on the display designated as Page Libor on the Reuters Monitor
Money Rates Service, making an initial rate of 6.953%), Revolving Line of Credit
Loan to a Corporation for $10,000,000.00 due on January 31, 1998, made under the
Maryland Interest and Usury Law.
PRIMARY PURPOSE OF LOAN. The primary purpose of this loan is for:
Personal, Family, or Household Purposes or Personal
Investment.
X Business (including Real Estate Investment).
SPECIFIC PURPOSE. The specific purpose of this loan is: Finance Borrower's
accounts receivable and work in process.
DISBURSEMENT INSTRUCTIONS. Xxxxxxxx understands that no loan proceeds will be
disbursed until all of Xxxxxx's conditions for making the loan have been
satisfied. Please disburse the loan proceeds of $10,000,000.00 as follows:
Undisbursed Funds: $10,000,000.00
Note Principal: $10,000,000.00
FINANCIAL CONDITION. BY SIGNING THIS AUTHORIZATION, XXXXXXXX REPRESENTS AND
WARRANTS TO LENDER THAT THE INFORMATION PROVIDED ABOVE IS TRUE AND CORRECT AND
THAT THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN BORROWER'S FINANCIAL CONDITION
AS DISCLOSED IN BORROWER'S MOST RECENT FINANCIAL STATEMENT TO XXXXXX. THIS
AUTHORIZATION IS DATED OCTOBER 28.1996.
BORROWER:
EA Engineering, Science, and Technology, Inc.
By: (SEAL)
Xxxxxx X. Xxxxxxx, Executive Vice President-Chief Financial Officer
SIGNET BANK
CORPORATE RESOLUTION TO BORROW
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$10,000,000.00 10-31-1996 01-31-1998 0124843566 000 EAEngine 17548
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Borrower: EA Engineering Science and Technology, Inc. Lender: SIGNET BANK
00000 XxXxxxxxx Xxxx XXXXXX XXXXX
Xxxx Xxxxxx, XX 00000 0 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
I, the undersigned Secretary or Assistant Secretary of EA Engineering Science
and Technology, Inc. (the "Corporation"), HEREBY CERTIFY that the Corporation is
organized and existing under and by virtue of the laws of the State of Maryland
as a corporation for profit, with its principal office at 00000 XxXxxxxxx Xxxx,
Xxxx Xxxxxx, XX 00000, and is duly authorized to transact business in the State
of Maryland.
I FURTHER CERTIFY that at a meeting of the Directors of the Corporation, duly
called and held on November 7, 1996, at which a quorum was present and voting,
or by other duly authorized corporate action in lieu of a meeting, the following
resolutions were adopted:
BE IT RESOLVED, that any one (1) of the following named officers, employees, or
agents of this Corporation, whose actual signatures are shown below:
NAMES POSITIONS ACTUAL SIGNATURES
Xxxxxx X. Xxxxxxx Executive Vice President, Chief Financial Officer
Xxxxx X. Xxxxxx President, Chief Executive Officer
acting for and on behalf of the Corporation and as its act and deed be, and
they hereby are, authorized and empowered:
Borrow Money. To borrow from time to time from SIGNET BANK (Lender), on
such terms as may be agreed upon between the Corporation and Lender, such
sum or sums of money as in their judgment should be borrowed, without
limitation.
Execute Notes. To execute and deliver to Lender the promissory note or
notes, or other evidence of credit accommodations of the Corporation, on
Lender's forms, at such rates of interest and on such terms as may be
agreed upon, evidencing the sums of money so borrowed or any indebtedness
of the Corporation to Lender, and also to execute and deliver to Lender one
or more renewals, extensions, modifications, refinancings, consolidations,
or substitutions for one or more of the notes, any portion of the notes, or
any other evidence of credit accommodations.
Grant Security. To mortgage, pledge, transfer, endorse, hypothecate, or
otherwise encumber and deliver to Lender, as security for the payment of
any loans or credit accommodations so obtained, any promissory notes so
executed (including any amendments to or modifications, renewals, and
extensions of such promissory notes), or any other or further indebtedness
of the Corporation to Lender at any time owing, however the same may be
evidenced, any property now or hereafter belonging to the Corporation or in
which the Corporation now or hereafter may have an interest, including
without limitation all real property and all personal property (tangible or
intangible) of the
10-31-1996 CORPORATE RESOLUTION TO BORROW Page 2
(Continued)
Corporation. Such property may be mortgaged, pledged, transferred,
endorsed, hypothecated, or encumbered at the time such loans are obtained
or such indebtedness is incurred, or at any other time or times, and may be
either in addition to or in lieu of any property theretofore mortgaged,
pledged, transferred, endorsed, hypothecated, or encumbered.
Execute Security Documents. To execute and deliver to Lender the forms of
mortgage, deed of trust, pledge agreement, hypothecation agreement, and
other security agreements and financing statements which may be submitted
by Lender, and which shall evidence the terms and conditions under and
pursuant to which such liens and encumbrances, or any of them, are given;
and also to execute and deliver to Lender any other written instruments,
any chattel paper, or any other collateral, of any kind or nature, which
they may in their discretion deem reasonably necessary or proper in
connection with or pertaining to the giving of the liens and encumbrances.
Negotiate Items. To draw, endorse, and discount with Lender all drafts,
trade acceptances, promissory notes, or other evidences of indebtedness
payable to or belonging to the Corporation in which the Corporation may
have an interest, and either to receive cash for the same or to cause such
proceeds to be credited to the account of the Corporation with Xxxxxx, or
to cause such other disposition of the proceeds derived therefrom as they
may deem advisable.
Further Acts. In the case of lines of credit, to designate additional or
alternate individuals as being authorized to request advances thereunder,
and in all cases, to do and perform such other acts and things, to pay any
and all fees and costs, and to execute and deliver such other documents and
agreements, including agreements waiving the right to a trial by jury as
they may in their discretion deem reasonably necessary or proper in order
to carry into effect the provisions of these Resolutions. The following
person or persons currently are authorized to request advances and
authorize payments under the line of credit until Xxxxxx receives written
notice of revocation of their authority:
Xxxxxx X. Xxxxxxx, Executive Vice President.
BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to these
Resolutions and performed prior to the passage of these Resolutions are hereby
ratified and approved, that these Resolutions shall remain in full force and
effect and Lender may rely on these Resolutions until written notice of their
revocation shall have been delivered to and received by Xxxxxx. Any such notice
shall not affect any of the Corporation's agreements or commitments in effect at
the time notice is given.
BE IT FURTHER RESOLVED, that the Corporation will notify Lender in writing at
Xxxxxx's address shown above (or such other addresses as Lender may designate
from time to time) prior to any (a) change in the name of the Corporation, (b)
change in the assumed business name(s) of the Corporation, (c) change in the
management of the Corporation, (d) change in the authorized signer(s) or (e)
change in any other aspect of the Corporation that directly or indirectly
relates to any agreements between the Corporation and Lender. No change in the
name of the Corporation will take effect until after Xxxxxx has been notified.
I FURTHER CERTIFY that the officers, employees, and agents named above are duly
elected, appointed, or employed by or for the Corporation, as the case may be,
and occupy the positions set opposite their respective names; that the foregoing
Resolutions now stand of record on the books of the Corporation; and that the
Resolutions are in full force and effect and have not been modified or revoked
in any manner whatsoever.
10-31-1996 CORPORATE RESOLUTION TO BORROW Page 3
(Continued)
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of the
Corporation on October 31, 1996 and attest that the signatures set opposite the
names listed above are their genuine signatures.
CERTIFIED TO AND ATTESTED TO:
X Xxxxxxx X. Xxxxxxxxx
CORPORATE
SEAL
NOTE: In case the Secretary or other certifying officer is designated by the
foregoing resolutions as one of the signing officers, it is advisable to have
this certificate signed by a second Officer or Director of the Corporation.
