EXHIBIT 10(g)
TERM LOAN AGREEMENT
This Term Loan Agreement (this "AGREEMENT") is entered into this 1st
day of May, 1997, by and between APPLIED SCIENCE AND TECHNOLOGY, INC.
("BORROWER") a Delaware corporation with its principal place of business at 00
Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and STATE STREET BANK AND TRUST COMPANY
("BANK"), a Massachusetts trust company organized and existing under the laws of
the Commonwealth of Massachusetts.
W H E R E A S:
Borrower desires to borrow the sum of Four Million Nine Hundred
Eighty-Three Thousand Fifty-One Dollars ($4,983,051.00) from Bank, which
borrowing is sometimes referred to herein as (the "LOAN"), for its working
capital needs as well as for the acquisition of Sorbios GmbH and Converter
Power, Inc. (the "Acquisition Entities"). Bank is willing to make the Loan in
consideration of the undertakings of Borrower set forth herein and in the other
documents evidencing and/or constituting the Loan.
IN CONSIDERATION THEREOF, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.0 When used herein, the terms set forth below shall be defined as
follows:
"EVENT OF DEFAULT" shall mean each and every event specified in Article
IX of this Agreement or set forth under the Note, as an event of default.
"NOTE" shall mean the Term Promissory Note of Borrower, executed as of
the date hereof and delivered simultaneously herewith.
"LOAN DOCUMENTS" shall mean this Agreement, the Note, and any other
instrument or instruments entered into pursuant to or in connection with this
Agreement, as such instruments may be amended, supplemented or modified from
time to time.
"LIEN" shall mean any mortgage, deed of trust, pledge, security
interest, hypothecation, assignment, depositor arrangement, encumbrance, lien
(statutory or other), or preference, priority or other security agreement or
preferential agreement, charge, or encumbrance of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing and filing of any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction to evidence any of the
foregoing).
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"MARKET RATE" shall mean an amount equal to the Base Market Rate (as
hereinafter defined) plus 150 basis points. For purposes of this definition, the
term "Base Market Rate" shall mean the fixed rate of interest quoted by the Bank
on the date the Loan funds under the Market Rate Note are advanced, in its sole
discretion, which rate shall be determined solely by the Bank based upon the
Bank's cost of funds.
"MARKET RATE LOAN(S)" means that portion of the Loan for which interest
is based on the Market Rate as set forth in Article II hereof.
"OBLIGATIONS" shall mean any and all indebtedness, obligations and
liabilities of Borrower to Bank arising under any agreement with the Bank, of
every kind and description, direct or indirect, secured or unsecured, joint or
several, absolute or contingent, due or to become due, whether for payment or
performance, now existing or hereafter arising; including, without limitation,
all indebtedness under the Loan (including by renewal or extension of the Loan)
any and all sums which may be advanced by Bank pursuant to this Agreement or any
other agreement between the Bank and the Borrower, and all interest, taxes,
fees, charges, expenses and reasonable attorney's fees chargeable to Borrower
under this Agreement.
"PRIME RATE" shall mean the rate of interest announced from time to
time by Bank at its head office in Boston, Massachusetts as its "Prime Rate".
"PRIME RATE LOAN(S)" means that portion of the Loan for which interest
is based on the Prime Rate as set forth in Article II hereof.
"TANGIBLE NET WORTH" means the excess of total assets over total
liabilities, (total assets and total liabilities each to be determined in
accordance with generally accepted accounting principles) ("GAAP") consistent
with those applied in the preparation of the financial statements referred to in
Sections 6.7(1) and (2) excluding, however, from the determination of total
assets all assets which would be classified as intangible, without limitation,
goodwill, patents, trademarks, tradenames, copyrights, franchises, and
intangibles.
1.1. Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP consistent with that applied
in the preparation of the Borrower's financial statements, and all financial
data submitted pursuant to this Agreement shall be prepared in accordance with
such principles, except interim financial data which may be subject to year-end
adjustments.
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ARTICLE II
AMOUNT AND TERMS OF LOANS
2.0 Promptly following the execution and delivery of the Note, Bank,
agrees to make advances to Borrower under the Loan under and subject to the
following terms and conditions:
(a) The Loan is structured as a $4,983,051.00 unsecured term loan.
Funds shall be available under the Loan only in accordance with the terms of
this Agreement. The Loan will be due May 31, 2002 ("Maturity") and will be
evidenced by a Term Promissory Note of Borrower dated the date hereof and issued
in the original principal amount of $4,983,051.00.
(b) The Borrower shall pay interest to the Bank on the outstanding and
unpaid principal amount of the Loan, at interest rates as called for in each
Note. Interest shall be calculated on the basis of actual days elapsed and a
360-day year.
(c) The Borrower may at any time prepay any Prime Rate Loans portion of
the Loan in whole or in part without penalty with accrued interest to the date
of such repayment on the amount prepaid. To the extent any part of the Loan is a
Prime Rate Loan, Borrower may at anytime convert such Loan to a Market Rate
Loan. Notwithstanding the foregoing. To the extent Bank has made a Market Rate
Loan to Borrower, such Loan may not be pre-paid except pursuant to the
provisions of sub-section (d) hereof.
(d) In the event of prepayment of the Market Rate Loan, in whole or in
part, either at the Borrower's initiative or upon the exercise by the Bank of
its rights in the event of, an Event of Default, the Borrower agrees to pay to
the Bank its lost net interest income resulting from the prepayment. Therefore,
the Borrower's payment to the Bank in respect of such prepayment shall consist
of the principal amount being prepaid, all interest owing up to the date of such
prepayment, together with the Bank's lost net interest income, if any, computed
as described below. As of the date of prepayment of any Market Rate Loan, the
Bank will determine the interest rate differential between the rate stated
herein for such Market Rate Loan and the yield on a United States Government
Treasury Note with the maturity closest to such Market Rate Loan as the same is
reported in The Wall Street Journal of that day (reporting the previous day's
activity). In the event that the rate differential so determined is such that
the Treasury Note yield is greater than the Market Rate Loan yield, no lost net
interest income shall be paid to the Bank, nor, in any event, shall any such sum
be owed by the Bank to the Borrower. In the event that the rate differential so
determined is such that the Market Rate Loan yield is greater than the Treasury
Note yield, the difference shall be multiplied by the principal amount of the
Market Rate Loan which is being prepaid, computed monthly for the remaining term
of such Market Rate Loan; the present value of such monthly compensation shall
be calculated and paid to the Bank as its lost net interest income. For the
purpose of computing
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present value, the interest rate used for discounting shall be the bond
equivalent yield of the United States Treasury Xxxx rate as reported in The Wall
Street Journal of that day (reporting the previous day's activity) reflecting a
term closest to the remaining term of the Loan. Any lost net interest income
paid or payable to the Bank hereunder as a result of any prepayment of a Market
Rate Loan is sometimes referred to as a "MARKET RATE PREMIUM". To the extent
there is due from Borrower to the Bank any Market Rate Premium, the amount of
such Market Rate Premium shall be reduced dollar for dollar by the amount the
Borrower pays to the Bank in default rate interest pursuant to the second
paragraph of the Market Rate Note.
ARTICLE III
USE OF LOAN PROCEEDS
3.0 The proceeds of the Loan hereunder shall be used only for the
Borrower's acquiring the Acquisition Entities and for no other purpose (the
"ACQUISITION TRANSACTION") and refinancing certain of the Borrower's prior
obligations to Bank made in connection with the acquisition by Borrower of ETO,
Inc.
ARTICLE IV
CONDITIONS PRECEDENT TO THE LOAN
4.0 The undertaking of the Bank to make the Loan is subject to the
condition precedent that the Bank shall have received on or before the day of
such Loan each of the following in form and substance satisfactory to the Bank
and its counsel:
4.1 A certificate of even date herewith of an officer of Borrower,
identifying the officer or officers of Borrower, authorized to execute this
Agreement, the Note, and such other documents to be delivered pursuant to this
Agreement, and affixed thereto shall be true copies of resolutions of Borrower,
authorizing the transactions contemplated herein, the execution, delivery and
performance of this Agreement, the Note, and any other document or instrument to
be delivered pursuant hereto;
4.2 The Note, duly executed by Borrower and delivered to Bank;
4.3 An opinion of Borrower's counsel in form and substance satisfactory
to the Bank and its counsel.
4.4 Certificate of legal existence and tax good standing for Borrower;
4.5 Documents and Certificates evidencing registration and good
standing in all jurisdictions where the Borrower has applied for such
registration;
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4.6 A certified copy of the corporate charter documents of Borrower;
4.7 A certified copy of the By-Laws of Borrower;
4.8 UCC-3 Negative Pledge Statements executed by Borrower in such form
and substance as Bank and its counsel shall require.
4.9 Such other documents or certificates as may be reasonably requested
by Bank and/or as are required under the terms of this Agreement, and any other
documents or agreements to which Bank, and the Borrower are parties;
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.0 As a material inducement to Bank to make the Loan to Borrower
hereunder, Borrower, represents and warrants to Bank and such representations
and warranties shall be continuing representations and warranties during the
term of this Agreement and so long thereafter as any Obligations shall remain
outstanding, as follows:
5.1 The Borrower is a corporation duly incorporated, validly existing,
and in good standing under the laws of the state of its incorporation; has the
corporate power and authority to own its assets and to transact the business in
which it is now engaged or proposed to be engaged in; and is duly qualified as a
foreign corporation and in good standing under the laws of each other
jurisdiction in which such qualification is required.
5.2 The execution, delivery, and performance by the Borrower of this
Agreement, the Note and other Loan Documents to which it is a party have been
duly authorized by all necessary corporate action and do not and will not (1)
require any consent or approval of the stockholders of the Borrower; (2)
contravene the Borrower's charter or bylaws; (3) violate any provision of any
law, rule, regulation (including, without limitation, Regulation U of the Board
of Governors of the Federal Reserve System), the violation of which would have a
material adverse effect on the business or operations of the Borrower or any
order, writ, judgment, injunction, decree, determination, or award presently in
effect having applicability; (4) result in a breach of or constitute a default
under any indenture or loan or credit agreement or any other agreement, lease,
or instrument to which the Borrower is a party or by which it or its properties
may be bound or affected; (5) result in, or require, the creation or imposition
of any Lien upon or with respect to any of the properties now owned or hereafter
acquired by the Borrower; and (6) cause the Borrower to be in violation of or
default under any such law, rule, regulation, or any such indenture, agreement,
lease, or instrument which default would have a material and adverse effect on
the business or operation of the Borrower or under any order, writ, judgment,
injunction, decree, determination or award.
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5.3 This Agreement is, and each of the other Loan Documents when
delivered under this Agreement will be, legal, valid, and binding obligations of
the Borrower enforceable against the Borrower, in accordance with their
respective terms, except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency, and other similar laws affecting creditors'
rights generally and general equity principles.
5.4 The consolidated balance sheet of the Borrower and its consolidated
subsidiaries as of June 29, 1996 and the related consolidated statements of
income, cash flows and stockholders' equity for the fiscal year then ended,
reported on by KPMG Peat Marwick LLP and set forth in the Borrower's 1996 Form
10-K, a copy of which has been delivered to the Bank, fairly present, in
conformity with generally accepted accounting principles, the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such fiscal
year, and since the date through which the financial statements cover, there has
been (a) no material adverse change in the condition (financial or otherwise),
business, or operations of Borrower; (b) no damage, destruction or loss
materially adversely affecting Borrower's business; (c) no declaration of making
of any dividend or other distribution to stockholders of the Borrower with
respect to Borrower's capital stock or any direct or indirect redemption,
purchase or other acquisition of any such stock; (d) no increase in compensation
payable or to become payable by Borrower to any of its executive officers or any
general wage increase except in the ordinary course of the Borrower's business;
or (e) no materially adverse controversy with employees, labor unions or
governmental agencies. There are no liabilities of Borrower, fixed or
contingent, which are material but are not reflected in the financial statements
or in the notes thereto, other than liabilities arising in the ordinary course
of business.
5.5 Neither the business nor the properties of the Borrower are
affected by any fire, explosion, accident, strike, lockout or other labor
dispute, drought, storm, hail, earthquake, embargo, act of God or of the public
enemy, or other casualty (whether or not covered by insurance) materially and
adversely affecting such business or properties or the operation of the
Borrower.
5.6 The Borrower has not materially violated, nor is the Borrower in
material violation of, any applicable law or regulation, which violation would
have a material and adverse effect on the business or operations of the Borrower
or any order, judgment, or decree. The Borrower is not a party to any contract
or other agreement, or subject to any restrictions under its charter documents,
bylaws or other corporate instrument, or subject to any order, judgment, rule,
regulation, or decree of any court or governmental authority, which materially
and adversely affects its business, properties, assets or financial condition or
which restricts or otherwise limits its incurring of the Loan or its performance
and observance of its Obligations. Neither the execution and delivery by
Borrower, nor the compliance by Borrower
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with the terms and conditions, of this Agreement, or any Loan Document to which
Borrower is a party, conflicts or will conflict with, constitutes or will
constitute a default under, or results or will result in any violation of, the
charter documents or By-laws of Borrower, any award of any arbitrator, and to
Borrower's knowledge, any law, any order, judgment, rule, regulation or decree
of any court or governmental authority, or any agreement or instrument to which
Borrower is a party or any of its property is subject; nor does the same result
nor will it result in the creation or imposition of any Lien upon any of its
property except the Liens created by this Agreement or any other Loan Document.
5.7 Except as set forth in Borrower's 1996 Form 10-K, there is no
pending or, to the Borrower's knowledge, threatened action or proceeding against
or affecting the Borrower before any court, governmental agency, or arbitrator
which may, in any one case or in the aggregate, materially adversely affect the
financial condition, operations, properties, or business of the Borrower or the
ability of the Borrower to perform its Obligations under the Loan Documents to
which it is a party.
5.8 The Borrower has satisfied all judgments and the Borrower is not in
default with respect to any judgment, writ, injunction, or decree of any court,
arbitrator, or federal, state, municipal, or other governmental authority,
commission, board, bureau, agency, or instrumentality, domestic or foreign.
5.9 The Borrower has good and clear record and marketable title to all
properties and assets which it purports to own, free and clear of all mortgages,
liens, pledges, charges, security interests and encumbrances, other than those
being granted to the Bank, pursuant hereto, if any, and those reflected on
Schedule 5.9.
5.10 There are currently five wholly-owned subsidiaries of Borrower and
except as set forth on Schedule 5.10, Borrower has no investments in the stock
or securities of any other corporation, firm, trust or other entity.
5.11 To the best knowledge of the Borrower, the Borrower possesses, all
licenses, permits, franchises, patents, copyrights, trademarks, and trade names,
or rights thereto, to conduct its business substantially now as conducted and as
presently proposed to be conducted, and the Borrower is not in any material
violation of any rights of others with respect to any of the foregoing.
5.12 The Borrower has filed all income tax returns, excise tax returns
and other tax returns (federal, state, and local) required to be filed and has
paid all taxes, assessments, and governmental charges and levies thereon to be
due, including interest and penalties. To the Borrower's knowledge, no audit or
investigation is presently being conducted with regard to any tax return or tax
obligation of Borrower.
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5.13 No employee pension benefit plan or other plan (within the meaning
of Section 3(2) of the Employees Retirement Income Security Act of 1974, as
amended ("ERISA")) which is or was sponsored at any time, by Borrower or any
member of a controlled group of corporations within the meaning of Section
414(b) of the Internal Revenue Code of 1954, as amended (the "Code"), or any
member of a group of commonly controlled trades or businesses (whether or not
incorporated) within the meaning of Section 414(c) of the Code of which Borrower
is a member ("Plan"): (i) has incurred an "accumulated funding deficiency"
(within the meaning of Section 302(a)(2) of ERISA), or which could result in a
liability of Borrower (which liability could materially adversely affect the
financial conditions of Borrower) under Section 409 of ERISA or Section 4975 of
the Code or pursuant to any agreement or statute with respect to liabilities
incurred by an person under such sections. No material liability to the Pension
Benefit Guaranty Corporation ("PBGC"), to a Plan, or to any participant in or
beneficiary of a Plan has been or, to the present knowledge of Borrower, is
expected to be incurred with respect to any Plan by Borrower, and there has been
no event or condition which presents a risk of termination of any Plan by PBGC.
None of the following events has occurred or, to the knowledge of Borrower, is
expected to occur, with respect to any multi-employer plan (as that term is
defined in Section 3(37) of ERISA) to which any Borrower or any member of a
controlled group of corporations or any member of a group of commonly controlled
trades or businesses of which Borrower is a member, contributes on behalf of its
employees (the "Contributing Employers") which has resulted or could result in
any material liability of the Borrower to PBGC, to such multi-employer plan, or
to any participant in or beneficiary of such multi-employer plan: (i) a
withdrawal, either complete or partial, from any such plan (within the meaning
of Section 4203 or Section 4205, respectively, of ERISA) by a Contributing
Employer; (ii) the termination of any such plan; or (iii) the recording of a
reorganization index (as defined by Section 4241 of ERISA) in excess of zero by
any such plan.
5.14 Except as set forth in SCHEDULE 5.14, the Borrower has never:
(a) owned, occupied, or operated a site or vessel on which any
hazardous material or oil was or is stored, transported, or
disposed of (the terms site, vessel, and hazardous material
respectively being used in this Agreement with the meaning given
those terms in M.G.L. C. 21E); or
(b) directly or indirectly transported, or arranged for the
transport of any hazardous material or
oil; or
(c) caused or been legally responsible for any release or threat of
release of any hazardous material or oil; or
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(d) received notification from any federal, state, or other
governmental authority of any potential or known release or
threat of release of any hazardous material or oil from any site
or vessel owned, occupied, or operated by the Borrower or any
person for whose conduct the Borrower is responsible, and/or of
the incurrence of any expense or loss by such governmental
entity.
5.15 SCHEDULE 5.15 annexed hereto is a listing of all patents and/or
patents pending, trademarks, copyrights, licenses and similar agreements in
which the Borrower has an interest.
5.16 SCHEDULE 5.16 is a complete and correct list of all credit
agreements, indentures, purchase agreements (other than for materials, supplies
and services entered into in the ordinary course of business), guaranties,
leases (requiring lease payments in the aggregate of $600,000.00 annually), and
other investments, agreements, and arrangements presently in effect providing
for or relating to extensions of credit (including agreements and arrangements
for the issuance of letters of credit or for acceptance financing) in respect of
which the Borrower or any subsidiary is in any manner directly or contingently
obligated; and the maximum principal or face amounts of credit in question,
which are outstanding and which can be outstanding, are correctly stated, and
all Liens of any nature given or agreed to be given as security therefor are
correctly described or indicated in such Schedule.
5.17 Borrower is not in default with respect to any agreement to which
it is a party or by which it is bound, which default would have a material
adverse effect on the Borrower's business, operations and financial statement.
5.18 No consent or approval of any person, no waiver of any lien or
other similar right, and no consent, license, approval, authorization, or
declaration of any governmental authority, bureau, or agency is or will be
required in connection with the execution, delivery, performance, validity,
enforcement, or priority of this Agreement, the Note, or any other agreement,
instrument, or document to be executed or delivered in connection herewith.
5.19 No representation, warranty, or statement by Borrower contained
herein or in any certificate or other document furnished or to be furnished by
Borrower pursuant hereto contains or at the time of delivery shall contain any
untrue statement of material fact, or omits, or shall omit at the time of
delivery, to state a material fact necessary to make it not misleading.
5.20 The Borrower is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
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ARTICLE VI
AFFIRMATIVE COVENANTS
6.0 Borrower covenants and agrees that during the term of this
Agreement and so long thereafter as any Obligations remain outstanding the
Borrower will:
6.1 Keep adequate records and books of account, in which complete
entries will be made in accordance with generally accepted accounting principles
consistently applied, subject to year end adjustments, reflecting all financial
transactions of the Borrower, including complete records of all accounts of
Borrower, as defined in the Massachusetts Uniform Commercial Code.
6.2 Maintain, keep, and preserve all of its properties (tangible and
intangible) necessary or useful in the proper conduct of its business in good
working order and condition, ordinary wear and tear excepted. Borrower shall use
its best efforts to maintain in full force and effect all rights, patents,
licenses, permits and privileges necessary for the proper conduct of its
business.
6.3 Continue to engage in an efficient and economical manner in a
business of the same general type as conducted by it on the date of this
Agreement.
6.4 Maintain insurance with financially sound and reputable insurance
companies or associations in such amounts and covering such risks as the Bank
shall reasonably require and as are usually carried by companies engaged in the
same or a similar business and similarly situated, which insurance may provide
for reasonable deductibility from coverage thereof.
6.5 Comply in all material respects with applicable laws, rules,
regulations, and orders, such compliance to include, without limitation, paying
before the same become delinquent all taxes, assessments, and governmental
charges imposed upon it or upon its property, noncompliance with which would
have a material and adverse effect on the business and operations of the
Borrower.
6.6 At any reasonable time during business hours and from time to time,
permit the Bank or any agent or representative thereof to examine and make
copies of and abstracts from the records and books of account of, and visit the
properties of the Borrower and to discuss the affairs, finances, and accounts of
the Borrower with any of their respective officers and directors and the
Borrower's independent accountants. Such visits will be conducted in a manner
which does not interfere with the normal operations of the Borrower.
6.7 Furnish to the Bank:
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(1) Promptly after the commencement thereof, notice of all actions,
suits, and proceedings before any court or governmental department, commission,
board, bureau, agency, or instrumentality, domestic or foreign, affecting the
Borrower, which, if determined adversely to the Borrower, could have a material
adverse effect on the financial condition, properties, or operations of the
Borrower;
(2) Such other information respecting the condition or operations,
financial or otherwise, receivables, inventory, machinery or equipment of the
Borrower as the Bank may from time to time reasonably request.
(3) Promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed.
(4) Within five business days of the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and
8-K (or their equivalents) which the Borrower shall have filed with the
Securities and Exchange Commission.
(5) The Borrower will, at the time of delivery to the Bank of the
reports referred to in the above subsections (1) and (2) deliver to the Bank
certificates signed by any individual duly authorized by the Borrower certifying
that such individual has reviewed the provisions of this Agreement and stating
in his opinion, if such be the fact, that the Borrower has not been and is not
in default as to any of the covenants and agreements of the Borrower contained
in this Agreement.
6.8 From time to time, execute and deliver to the Bank all such other
and further instruments or documents and take or cause to be taken all such
other and further action as the Bank may reasonably request in order to effect
and confirm or vest more securely in the Bank all rights contemplated in this
Agreement.
6.9 Other than its subsidiaries, maintain all of its operating Accounts
with the Bank.
6.10 Conform, adhere to, and observe all covenants and warranties
contained in any other agreement between the Bank and the Borrower, or
instrument furnished by the Borrower to the Bank.
6.11 Preserve and maintain its corporate existence and good standing in
the jurisdiction of its incorporation, and qualify and remain qualified as a
foreign corporation in each jurisdiction in which such qualification is
required.
6.12 Use the proceeds of the Loan only for the purpose intended. The
Borrower acknowledges the Loan has been and shall be made available subject to
the terms hereof.
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6.13 The Borrower will punctually and promptly make all payments and
perform all other obligations which may be required of it with respect to any
indebtedness (whether for money borrowed, goods purchased, services rendered or
however such indebtedness may otherwise arise) owing to persons, firms or
corporations other than the Bank, including, without limitation, indebtedness
which may be secured by a security interest in assets of the Borrower or
property of the Borrower, and all obligations under the terms of any lease in
which the Borrower is the lessee. The provisions of this section shall not
preclude the Borrower from contesting in good faith and diligently defending
against any such indebtedness or obligation.
6.14 Pay and/or perform promptly when due all of the Obligations and
liabilities of Borrower including, without limitation, the payment of all sales,
use, excise, personal property, income, withholding, corporate, franchise, and
other taxes, assessments, and governmental charges upon or relating to its
ownership or use of any of its assets or its income, or the operation of its
business or otherwise for which Borrower is or may be liable except to the
extent the same are being diligently contested in good faith and adequate
provision has been made for payment and upon such request shall submit to Bank
proof satisfactory to Bank that such payments and/or deposits have been made.
6.15 Pay or cause to be paid when due all amounts necessary to fund in
accordance with their terms all such deferred compensation plans, whether now in
existence or hereafter created, and the Borrower will not withdraw from
participation in, permit the termination or partial termination of, or permit
the occurrence of any other event with respect to, any deferred compensation
plan maintained for the benefit of its employees under circumstances that could
result in liability to the Pension Benefit Guaranty Corporation, or any of its
successors or assigns, or to the entity which provides funds for such deferred
compensation plan.
6.16 Promptly notify Bank if any time (i) a Plan incurs an "accumulated
funding deficiency" (as defined in Sections 412(a) of the Code), whether or not
waived; (ii) a "reportable event" (within the meaning of Section 4043(b) of
ERISA) occurs with respect to a Plan; (iii) Borrower engages in any transaction
which violates Section 406 or Section 407 of ERISA or which could result in a
liability under Section 409, 501 or 502 of ERISA or Section 4975 of the Code or
pursuant to any agreement or statute with respect to liabilities incurred by any
person under such sections, which liability could materially affect the
financial condition of such Borrower; (iv) Borrower incurs a material liability
to the PBGC or to any participant in or beneficiary of a Plan with respect to
any Plan; (v) an event occurs or a condition arises which presents a risk of
termination of any Plan by the PBGC; (vi) Borrower is notified by the Internal
Revenue Service or the Department of Labor that the Plan is not or may not be
qualified under Section 401(a) of the Code or that the trust established
thereunder is not or may not be exempt from tax under Section
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501(a) of the Code; (vii) any of the following events occurs with respect to any
multi-employer plan (as defined in Section 3(37) of ERISA) to which the borrower
or any member of a group of commonly controlled trades or businesses within the
meaning of Section 414(c) of the Code of which any Borrower is a member or
contributes on behalf of its employees: (A) a withdrawal, either complete or
partial, from any such plan (within the meaning of Section 4202 or Section 205,
respectively, or ERISA) by a Contributing Employer or a decision by the
Contributing Employer to withdraw completely or partially from such plan; (B)
the termination of any such plan; or (C) the recording of a reorganization index
(as defined by Section 4241 of ERISA) in excess of zero by any such plan.
6.17 (a) Provide the Bank with written notice upon the Borrower's
obtaining knowledge of any potential or known release or threat of release of
any hazardous material or oil at or from any site owned, occupied, or operated
by the Borrower (the Bank acknowledges receipt of notice of the matters
contained in Schedule 5.14); upon the Borrower's receipt of any notice to such
effect from any federal, state, or other governmental authority; and/or upon the
Borrower's obtaining knowledge of any incidence of any expense or loss by such
governmental authority in connection with the assessment, containment, or
removal of any hazardous material or oil for which expense or loss the Borrower
may be liable; and (b) in the event of a release of hazardous material or oil,
take all such action, including without limitation, the conducting of
engineering tests (at the expense of the Borrower) to confirm that no hazardous
material or oil is or ever was stored on any site owned, occupied, or operated
by the Borrower.
ARTICLE VII
NEGATIVE COVENANTS
7.0 Borrower agrees that during the term of this Agreement and so long
thereafter as any Obligations remain outstanding, it will not, without the prior
written consent of Bank, which consent shall not be unreasonably withheld or
delayed:
7.1 (i) sell or convey all or substantially all of the Borrower's
assets, (ii) except for the Acquisition Transaction enter into any merger or
consolidation; (iii) effect any reorganization or recapitalization; or (iv)
except with respect to the Acquisition Transaction, redeem any shares of the
Borrower, merge or consolidate with (unless it is the survivor corporation) or
sell, assign, lease, or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to any person.
7.2 Create, incur, assume, or suffer to exist, or permit any subsidiary
(if any exist) to create, incur, assume, or suffer to exist, any Lien upon or
with respect to any of its properties, now owned or hereafter acquired, except:
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(1) Liens in favor of the Bank;
(2) Liens for taxes or assessments or other government charges or
levies if not yet due and payable or, if due and payable, if they are being
contested in good faith by appropriate proceedings and for which appropriate
reserves are maintained;
(3) Judgment and other similar Liens arising in connection with court
proceedings, provided the execution or other enforcement of such Liens is
effectively stayed and the claims secured thereby are being actively contested
in good faith and by appropriate proceedings, provided they do not adversely
affect the Borrower in a material way;
(4) Purchase-money Liens on any property hereafter acquired or the
assumption of any Lien on property existing at the time of such acquisition, or
a Lien incurred in connection with any conditional sale or other title retention
agreement of a capital lease;
(5) Permitted Encumbrances, as identified on Schedule 5.9;
(6) Any Lien existing on any asset of any corporation at the time such
corporation becomes a consolidated subsidiary of Borrower;
(7) Any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Borrower or a
consolidated subsidiary;
(8) Any Lien existing on any asset prior to the acquisition thereof by
the Borrower or a consolidated subsidiary and not created in contemplation of
such acquisition;
7.3 Create, incur, assume, or suffer to exist, or permit any subsidiary
(if at any time existing) to create, incur, assume or suffer to exist, any
obligation as lessee for the rental or hire of any real or personal property,
except: (1) leases existing on the date of this Agreement and any extensions or
renewals thereof; (2) leases, of which the total annual obligation under any
such lease is not more than $600,000.00.
7.5 Sell, lease, assign, transfer, or otherwise dispose of, any of its
now owned or hereafter acquired assets (including, without limitation, shares of
stock and indebtedness of subsidiaries, receivables, and leasehold interests),
except: (1) for inventory disposed of in the ordinary course of business; (2)
the sale or other disposition of assets no longer used or useful in the conduct
of its business or (3) in connection with the Acquisition Transaction.
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7.6 Assume, guarantee, endorse, or otherwise be or become directly or
contingently responsible or liable, or permit any subsidiary (if at any time
existing) to assume, guarantee, endorse, or otherwise be or become directly or
contingently responsible or liable (including, but not limited to, an agreement
to purchase any obligation, stock, assets, goods, or services, or to supply or
advance any funds, assets, goods, or services, or to maintain a minimum working
capital or net worth, or otherwise to assure the creditors of any person or
entity against loss) for obligations of any person or entity, except (1)
guaranties by endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business; (2) in connection with
the Acquisition Transaction; and (3) guaranties of residential real estate
mortgages of employees not to exceed $500,000 for any single mortgage and
$1,000,000 in the aggregate.
7.7 Enter into any transaction, including, without limitation, the
purchase, sale, or exchange of property or the rendering of any service, with
any affiliate, or permit any subsidiary to enter into any transaction,
including, without limitation, the purchase, sale, or exchange of property or
the rendering of any service, with any affiliate, or the making of advances to
any affiliates except in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such subsidiary's business and upon
fair and reasonable terms no less favorable to the Borrower or such subsidiary
than would obtain in a comparable arm's-length transaction with a party not an
affiliate.
7.8 Declare or pay any dividends; or purchase, redeem, retire or
otherwise acquire for value any of its capital stock now or hereafter
outstanding; or make any distribution of assets to its stockholders as such
whether in cash, assets, or obligations of the Borrower; or allocate or
otherwise set apart any sum for the payment of any dividend or distribution on
or for the purchase, redemption, or retirement of, any shares of its capital
stock; or make any other distribution by reduction of capital or otherwise in
respect of any shares of its capital stock; or permit any of its Subsidiaries to
purchase or otherwise acquire for value any stock of the Borrower or another
Subsidiary, except that (1) the Borrower may declare and deliver dividends and
make distributions payable solely in common stock of the Borrower or any
subsidiary; (2) the Borrower may declare dividends in an amount sufficient to
pay taxes, for profits not distributed, if the Borrower elects S Corporation
status; and (3) with the written consent of the Bank, which shall not be
unreasonably withheld, the Borrower may purchase or otherwise acquire shares of
its capital stock by exchange for or out of the proceeds received from a
substantially concurrent issue of new shares of its capital stock.
7.9 Except with respect to the Acquisition Transaction, make, or permit
any subsidiary to make, any loan or advance to any party (except loans to
employees, each of which shall not exceed $50,000.00 at any time), or purchase
or otherwise acquire, or permit any subsidiary to purchase or otherwise acquire,
any capital stock, assets, obligations, or other securities of, make
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any capital contribution to, or otherwise invest in or acquire any interest in
any entity, except: (1) direct obligations of the United States of any agency
thereof with maturities of one year or less from the date of acquisition; (2)
commercial paper of a domestic issuer rated at least "A-1" by Standard & Poor's
Corporation or "P-1" by Moody's Investor's Service, Inc,; (3) certificates of
deposit with maturities of one year or less from the date of acquisition issued
by any commercial bank having capital and surplus in excess of One Hundred
Million ($100,000,000) Dollars; (4) stock, obligations, or securities received
in settlement of debts (created in the ordinary course of business owing to the
Borrower or any Subsidiary; and (5) investments made pursuant to the Borrower's
investment policy as set forth in Schedule 7.9.
7.10 Except as otherwise provided above, issue evidence of indebtedness
or create, assume, become contingently liable for, or suffer to exist bank debt
in addition to Obligations to the Bank; provided, however, that the Borrower may
incur liabilities which are incurred or arise in the ordinary course of
Borrower's business other than indebtedness arising with respect to money
borrowed or the issuance of letters of credit for the account of the Borrower
both of which shall be prohibited.
7.11 Sell or otherwise dispose of any shares of capital stock of any
subsidiary, except in connection with a transaction permitted under Section 7.3,
or permit any subsidiary to issue any additional shares of its capital stock,
except director's qualifying shares.
7.12 Change its name without prior written notification to the Bank.
7.13 Without prior written notice to the Bank, open or operate any
place of business other than those places listed on SCHEDULE 7.13, attached
hereto and made a part hereof.
7.14 Except in connection with the Acquisition Transaction, make any
loan, advance, pay any bonus, or grant any extension of credit to any
corporation, partnership, person or other entity, except extensions of credit to
customers or otherwise in the ordinary course of business.
7.15 Except in connection with the Acquisition Transaction, make or
permit any substantial change in, or cease in whole or in part, its present
business, or engage in any other activities apart from its present business.
7.16 Undertake negative covenants in substance similar to those set
forth herein in favor of any other party.
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ARTICLE VIII
FINANCIAL COVENANTS
8.0 So long as the Note shall remain unpaid or the Bank shall have any
commitment under this Agreement:
(1) The Borrower will maintain Minimum Working Capital of not less than
$13,000,000.00 at the end of each calendar quarter.
(2) The Borrower will maintain at all times a Maximum Debt to Tangible
Net Worth ratio of no more than: (i) 2.0:1 by fiscal year end 1997; (ii) 1.75:1
by fiscal year end 1998; and (iii) 1.50:1 by fiscal year end 1999.
(3) As of June 28, 1997, the Borrower's fourth quarter, the Borrower
will maintain a Tangible Net Worth of not less than $13,500,000.00. Thereafter,
the Borrower's Tangible Net Worth will increase (as of the end of each of the
Borrower's quarters) by a minimum of 40% of the prior quarter's Net Income.
(4) The Borrower will maintain Minimum Debt Service Coverage defined as
the ratio of aggregate Net Income of the Borrower plus aggregate depreciation,
plus aggregate amortization, less aggregate Capital Expenditures not financed on
a long-term basis to Current Maturities of Long Term Debt of the Borrower of
.75:1 at fiscal year end 1997, 1:15:1 at fiscal year end 1998, and 1.75:1 at
fiscal year end 1999 and thereafter. This covenant shall be tested on a rolling
quarterly basis for a four fiscal quarter period.
(5) The Borrower will not suffer a negative Net Income during any two
consecutive quarters.
Capitalized terms otherwise not defined herein shall be defined in
accordance with GAAP.
All of the above covenants shall be tested quarterly beginning June 28,
1997. Notwithstanding the covenants listed above, the Bank in its discretion may
revise such covenants to reflect the in-process research and development
write-off in connection with the Acquisition.
ARTICLE IX
EVENTS OF DEFAULT, ACCELERATION AND SETOFF
9.0 The occurrence of any one or more of the following events shall
constitute an Event of Default hereunder:
(1) Failure of the Borrower to pay within ten (10) days, the principal
of, or interest on, the Note as and when due and payable; or
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(2) Any material representation or warranty made or deemed made by the
Borrower in this Agreement, or in any of the Loan Documents, or which is
contained in any certificate, document, opinion, or financial or other statement
furnished at anytime under or in connection with any Loan Document shall prove
to have been incorrect in any material respect on or as of the date made or
deemed made; or
(3) The Borrower shall fail to perform or observe any material term,
covenant, or agreement contained in any Loan Document (other than the Note) on
its part to be performed or observed within twenty (20) days after receipt of
notice from the Bank; or
(4) The Borrower shall (a) fail to pay any indebtedness for borrowed
money (other than the Note) of the Borrower or any interest or premium thereon,
when due, subject to any grace or cure period relating to such indebtedness,
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise), (whether or not related to this transaction or owed to the Bank or
another person) or (b) fail to perform or observe any material term, covenant,
or condition on its part to be performed or observed under any agreement or
instrument relating to any such indebtedness, when required to be performed or
observed, subject to any grace or cure period relating to such indebtedness, if
the effect of such failure to perform or observe is to accelerate, or to permit
the acceleration after the giving of notice or passage of time, or both, of the
maturity of such indebtedness, unless such failure to perform or observe shall
be waived by the holder of such indebtedness; or any such indebtedness shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment), prior to the stated maturity thereof;
or
(5) There exists any breach or default of the Borrower under:
(i) that certain $8,000,000.00 Term Loan Agreement among
Bank and Borrower dated December 21, 1995 as amended by
that certain Amendment and Ratification of Term Loan
Agreement of even date herewith and all documents and
certificates executed in connection therewith,
including without limitation that certain Term
Promissory Note (Market Rate) of December 21, 1995
delivered by Borrower to Bank;
(ii) that certain $8,000,000.00 Unsecured Committed Revolver
Loan Agreement among Bank and Borrower of even date
herewith and all documents and certificates executed in
connection therewith, including without limitation,
that certain Unsecured Committed Revolver Promissory
Note of even date herewith delivered by Borrower to
Bank.
-18-
(6) The Borrower (a) shall generally not, or shall be unable to, or
shall admit in writing its inability to pay its debts as such debts become due;
or (b) shall make an assignment for the benefits of creditors, petition or apply
to any tribunal for the appointment of a custodian, receiver, or trustee for it
or a substantial part of its assets; or (c) shall file a petition or application
or otherwise commence any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution, or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect; or (d) shall have any such
petition or application filed or any such proceeding commenced against it in
which an order for relief is entered or adjudication or appointment is made; or
(e) by any act or omission shall indicate its consent to, approval of, or
acquiescence in any such petition, application, or proceeding, or order for
relief, or the appointment of a custodian, receiver, or trustee for all or any
substantial part of its properties; or (f) shall suffer any custodianship,
receivership, or trusteeship; or
(7) One or more judgments, decrees, or orders for the payment of money
in excess of an aggregate of Ten Thousand ($10,000.00) Dollars in the aggregate
shall be rendered against the Borrower or any of their Subsidiaries and such
judgments, decrees, or orders shall continue unsatisfied and in effect for a
period of thirty (30) consecutive days without being vacated, discharged,
satisfied, or stayed or bonded pending appeal; or
(8) The service of any process on the Bank attaching by trustee process
any assets of the Borrower held by the Bank in an amount greater than
$25,000.00; or
(9) Borrower shall suffer any uninsured material loss, uninsured theft,
uninsured substantial damage, to or of any property;
9.1 If any Event of Default shall occur and continue beyond any grace
period provided under this Agreement then or at any time thereafter, Bank may
declare all Obligations to be due and payable, without notice except as
expressly required, protest, presentment or demand, all of which are hereby
expressly waived by Borrower.
9.2 Simultaneously with the sending of a notice of default Bank shall
have the right to setoff any and all deposits or other sums at any time or times
credited by or due from Bank to Borrower, whether in a special account or other
account or represented by a certificate of deposit, which deposits and other
sums shall at all times constitute additional security for the Obligations and
may be setoff against all or any part of the Obligations at any time if Borrower
is the primary obligor with respect to such Obligations, or, at or after the
maturity of Obligations if Borrower is secondary obligor.
-19-
ARTICLE X
TERM OF AGREEMENT
10.0 The term of this Agreement shall commence on the date hereof and
shall continue in full force and effect and be binding upon Borrower until all
Obligations shall have been fully paid and satisfied.
ARTICLE XI
GENERAL PROVISIONS
11.0 The failure of Bank at any time or times hereafter to require
strict performance by Borrower of any of the provisions, warranties, terms, and
conditions contained in this Agreement or in any other agreement, guaranty,
note, instrument, now or at any time or times hereafter executed by Borrower and
delivered to Bank shall not waive, affect, or diminish any right of Bank at any
time or times hereafter to demand strict performance thereof; and no rights of
Bank hereunder shall be deemed to have been waived by any act or knowledge of
Bank, its agents, officers, or employees unless such waiver is contained in an
instrument in writing signed by an officer of Bank and directed to Borrower
specifying such waiver. No waiver by Bank of any of its rights shall operate as
a waiver of any other of its rights or any of its rights on a future occasion.
11.1 All notices and other communications provided for under this
Agreement and under the other Loan Documents to which the Borrower is a party
shall be in writing and mailed or hand delivered:
If to the Borrower: Applied Science and Technology,
Inc.
00 Xxxxx Xxxx
Xxxxxx, XX 00000
ATTN: Xxxx X. Xxxxx
With a copy to: Xxxx X. Xxxxxxx, Esquire
Xxxxx Xxxx, Esquire
X'Xxxxxx, Broude & Xxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
If to the Bank: State Street Bank and Trust
Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
ATTN: Xxxxxxx X. Xxxxx
With a copy to: Xxxxxxx X. Xxxxxx, Esquire
Xxx X. Xxxxx, Esquire
Looney & Xxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
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or such other address as shall be designated by such party in a written notice
to the other party complying as to delivery with the terms of this Section 11.1.
All such notices and communication shall be effective when deposited in the
mail, addressed as aforesaid, registered or certified mail, return receipt
requested, or sent by messenger or overnight courier with a signed receipt, or
the date of actual receipt, whichever first occurs.
11.2 This Agreement contains the entire understanding between the
parties hereto with respect to the transactions contemplated herein and such
understanding shall not be modified except in writing signed by or on behalf of
the parties hereto.
11.3 Wherever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law.
Should any portion of this Agreement be declared invalid for any reason in any
jurisdiction, such declaration shall have no effect upon the remaining portions
of this Agreement, and furthermore, the entirety of this Agreement shall
continue in full force and effect in all other jurisdictions and said remaining
portions of this Agreement shall continue in full force and effect in the
subject jurisdiction as if this Agreement had been executed with the invalid
portions thereof deleted.
11.4 The provisions of this Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of Bank and the Borrower,
provided, however, that the Borrower may not assign any of its rights or
delegate any of its obligations hereunder without the prior written consent of
Bank, which consent shall not be unreasonably withheld or delayed.
11.5 This Agreement, the Note and all other documents hereunder have
been made and delivered in The Commonwealth of Massachusetts and shall be
governed by, and construed in all respects in accordance with the laws and
decisions of The Commonwealth of Massachusetts and Borrower submits to the
Jurisdiction of Massachusetts for all purposes with respect to this Agreement
and all other documents hereunder and its relationship with Bank.
11.6 The Borrower will pay or reimburse the Bank, on demand, for all
reasonable expenses (including, without limitation, reasonable counsel fees and
expenses) incurred or paid by the Bank in connection with the enforcement by the
Bank of its rights as against the Borrower or any other person primarily or
secondarily liable to the Bank hereunder or thereunder; and after an Event of
Default or demand, for the administration, supervision, protection or
realization on any collateral held by the Bank as security for any obligation of
the Borrower or any other person primarily or secondarily liable with respect
thereto; and in the defense of any
-21-
action against the Bank with respect to its rights or liabilities hereunder or
thereunder. In addition, the Borrower shall pay any and all stamp and other
taxes and fees payable or determined to be payable in connection with the
execution, delivery, filing and recording of any of the Loan documents and the
other documents to be delivered under any such Loan documents.
11.7 This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute but one and the same instrument.
11.8 The section headings herein are included for convenience only and
shall not be deemed to be a part of this Agreement.
11.9 BORROWER WAIVES ANY RIGHT TO TRIAL BY JURY THE BORROWER MAY HAVE IN
ANY ACTION OR PROCEEDING, IN LAW OR EQUITY, IN CONNECTION WITH THIS AGREEMENT.
BORROWER AND BANK HEREBY KNOWINGLY AND VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER, OR
IN CONNECTION WITH THIS AGREEMENT. BORROWER HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
BANK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT
TO JURY TRIAL PROVISION. BORROWER ACKNOWLEDGES THAT BANK HAS BEEN INDUCED TO
ENTER INTO BANK'S LENDING RELATIONSHIP WITH BORROWER BY, AMONG OTHER THINGS, THE
PROVISIONS OF THIS PARAGRAPH.
11.10 No delay or omission on Bank's part in exercising any right,
remedy or option shall operate as a waiver or such or any other right, remedy or
option or of any default.
11.11 The terms of the Commitment Letter issued by the Bank in
connection with the Loan, as modified by the Loan Documents, shall survive the
Closing.
11.12 No provision of this Agreement or the Note or any other Loan
document shall require the payment or permit the collection of interest in
excess of the maximum permitted by law. If any such excess interest is provided
for herein or in the Note or any other Loan document, Borrower shall not be
obligated to pay such excess, and the right to demand the payment of any excess
is hereby waived.
11.13 Nothing contained herein or in any Loan Document shall affect the
terms of any agreements between the Borrower and the Bank with respect to other
loans.
11.14 Any matter disclosed by Borrower in this Agreement or any Schedule
hereto, or excepted from any representation, warranty or covenant of Borrower
herein, shall be deemed disclosed for all purposes of this Agreement and to be
an exception from all such representations, warranties and covenants.
-22-
11.15 In the event the ACQUISITION Transaction does not close, this
Agreement shall be null and void with no further force or effect and no
liabilities to the parties hereunder, except the Borrower shall pay the Bank's
reasonable legal and processing costs.
ARTICLE XII
ASSIGNMENT BY BANK
12.0 If at any time or times, by assignment or otherwise, Bank transfers
or assigns any Obligations and/or security therefor, such transfer shall carry
with it the power and rights of Bank under this Agreement with respect to the
Obligations and security assigned or transferred and the assignee or transferee
shall become vested with said powers and rights whether or not they are
specifically referred to in the transfer or assignment. If and to the extent
Bank retains any Obligations or security, Bank shall continue to have the rights
and powers herein set forth with respect thereto.
ARTICLE XIII
SECURITY
13.0 After an Event of Default, the Bank in its sole and absolute
discretion may require a security interest in any or all of the Borrower's
assets (the "SECURED ASSETS"). In the event Bank so requires, the Borrower
hereby grants to Bank a security interest in such Secured Assets and the
Borrower will execute and deliver to the Bank any writings UCC Financing
Statements and do all things reasonably necessary, effectual or requested by the
Bank to create and perfect a security interest in the Secured Assets (the
"SECURITY Documents"). A carbon, photographic or other reproduction of this
Agreement or any financing statements executed pursuant to the terms hereof
shall be sufficient as a financing statement for the purpose of filing with the
appropriate authorities..
13.1 In addition to any other rights provided herein, the Borrower
hereby irrevocably constitutes and appoints the Bank as the Borrower's true and
lawful attorney, with full power of substitution, at the sole cost and expense
of the Borrower but for the sole benefit of the Bank, to sign and file or record
on behalf of the Borrower any financing or other statement in order to perfect
or protect the Bank's security interest in the Secured Assets. All powers
conferred upon the bank by this Agreement, being coupled with an interest, shall
be irrevocable so long as any Obligation of the Borrower to the Bank shall
remain unpaid.
-23-
IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be signed in their name and behalf by an officer or officers,
thereunto duly authorized as an instrument under seal as of the day and year
first written above.
BORROWER:
APPLIED SCIENCE AND
TECHNOLOGY, INC.
By:____________________________
Xxxx X. Xxxxx
Its: Senior Vice President and
Chief Financial Officer
BANK:
STATE STREET BANK AND TRUST
COMPANY
By:___________________________
Its duly authorized
----------------------------
(Print Name)
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EXHIBITS AND SCHEDULES
5.9 Permitted Encumbrances
5.10 Subsidiaries
5.14 Environmental Matters
5.15 Patents/Licenses/Trademarks
5.16 Debt
7.9 Investment Policy
7.13 Places of Business
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SCHEDULE 5.9
PERMITTED ENCUMBRANCES
SCHEDULE 5.10
SUBSIDIARIES AND AFFILIATES OF BORROWER
SCHEDULE 5.14
ENVIRONMENTAL MATTERS
SCHEDULE 5.15
PATENTS/LICENSES/TRADEMARKS
SCHEDULE 5.16
DEBT
SCHEDULE 7.9
INVESTMENT POLICY
SCHEDULE 7.13
PLACES OF BUSINESS
