Amended and Restated Loan Agreement
THIS AMENDED AND RESTATED LOAN AGREEMENT (the "Agreement"), is
entered into as of June ___, 1996, between INTEST CORPORATION, a New Jersey
corporation (the "Borrower"), and PNC BANK, NATIONAL ASSOCIATION (the "Bank").
The Borrower and the Bank, with the intent to be legally
bound, agree as follows:
1. Loan. The following loans, lines of credit and credit
facilities (if one or more, collectively, the "Loan"), made for the purpose
indicated below shall be subject to and governed by this Agreement:
Date and Type Purpose
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$1,500,000 Committed Line of Credit Working capital
originally extended February 26, 1993
$200,000 Five Year Term Loan dated Finance equipment and new office furniture
as of even date herewith
The Loans are or will be evidenced by promissory notes of the Borrower (if one
or more, collectively, the "Note") acceptable to the Bank, which shall set forth
the interest rate, repayment and other provisions, the terms of which are
incorporated into this Agreement by reference.
2. Security. The security for repayment of the Loan shall
include but not be limited to the collateral, guaranties and other documents
heretofore, contemporaneously or hereafter executed and delivered to the Bank
(the "Security Documents"), which shall secure repayment of the Loan, the Note
and all other loans, advances, debts, liabilities, obligations, covenants and
duties owing by the Borrower to the Bank of any kind or nature, present or
future, whether or not evidenced by any note, guaranty or other instrument,
whether arising under any agreement, instrument or document, whether or not for
the payment of money, whether arising by reason of an extension of credit,
opening of a letter of credit, loan or guarantee or in any other manner, whether
arising out of overdrafts on deposit or other accounts or electronic funds
transfers (whether through automatic clearing houses or otherwise) or out of the
Bank's non-receipt of or inability to collect funds or otherwise not being made
whole in connection with depository transfer check or other similar
arrangements, whether direct or indirect (including those acquired by assignment
or participation), absolute or contingent, joint or several, due or to become
due, now existing or hereafter arising, and any amendments, extensions, renewals
or increases and all costs and expenses of the Bank incurred in the
documentation, negotiations modification, enforcement, collection or otherwise
in connection with any of the foregoing, including but not limited to reasonable
attorneys' fees and expenses (hereinafter referred to collectively as the
"Obligations"). Unless expressly provided to the contrary in documentation for
any other loan or loans, it is the express intent of the Bank and the Borrower
that all
Obligations including those included in the Loan be cross-collateralized and
cross-defaulted, such that collateral securing any of the Obligations shall
secure repayment of all Obligations and a default under any Obligation shall be
a default under all Obligations.
This Agreement, the Note and the Security Documents are collectively referred to
as the "Loan Documents".
3. Representations and Warranties. The Borrower hereby makes
the following representations and warranties, which shall be continuing in
nature and remain in full force and effect until the Obligations are paid in
full, and which shall be true and correct except as otherwise set forth on the
Addendum attached hereto and incorporated herein by reference (the "Addendum"):
3.1 Existence, Power and Authority. If not a natural
person, the Borrower is duly organized, validly existing and in good standing
under the laws of the State of its incorporation or organization and has the
power and authority to own and operate its assets and to conduct its business as
now or proposed to be carried on, and is duly qualified, licensed and in good
standing to do business in all jurisdictions where its ownership of property or
the nature of its business requires such qualification or licensing. The
Borrower is duly authorized to execute and deliver the Loan Documents, all
necessary action to authorize the execution and delivery of the Loan Documents
has been property taken, and the Borrower is and will continue to be duly
authorized to borrow under this Agreement and to perform all of the other terms
and provisions of the Loan Documents.
3.2 Financial Statements. If the Borrower is not a natural
person, it has delivered or caused to be delivered its most recent balance
sheet, income statement and statement of cash flows, or if the Borrower is a
natural person, its personal financial statement and tax returns (as applicable,
the "Historical Financial Statements"). The Historical Financial Statements are
true, complete and accurate in all material respects and fairly present the
financial condition, assets and liabilities, whether accrued, absolute,
contingent or otherwise and the results of the Borrower's operations for the
period specified therein. The Historical Financial Statements have been prepared
in accordance with generally accepted accounting principles ("GAAP")
consistently applied from period to period subject in the case of interim
statements to normal year-end adjustments and to any comments and notes
acceptable to the Bank in its sole discretion.
3.3 No Material Adverse Change. Since the date of the most
recent Financial Statements, the Borrower has not suffered any damage,
destruction or loss, and no event or condition has occurred or exists, which has
resulted or could result in a material adverse change in its business, assets,
operations, financial condition or results of operation.
3.4 Binding Obligations. The Borrower has full power and
authority to enter into the transactions provided for in this Agreement and has
been duly authorized to do so by appropriate action of its Board of Directors if
the Borrower is a corporation, all its general
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partners if the Borrower is a partnership or otherwise as may be required by
law, charter, other organizational documents or agreements; and the Loan
Documents, when executed and delivered by the Borrower, will constitute the
legal, valid and binding obligations of the Borrower enforceable in accordance
with their terms.
3.5 No Defaults or Violations. There does not exist any
Event of Default under this Agreement or any default or violation by the
Borrower of or under any of the terms, conditions or obligations of: (i) its
partnership agreement if the Borrower is a partnership, its articles or
certificate of incorporation, regulations or bylaws if the Borrower is a
corporation or its other organizational documents as applicable; (ii) any
indenture, mortgage, deed of trust, franchise, permit, contract, agreement, or
other instrument to which it is a party or by which it is bound; or (iii) any
law, regulation, ruling, order, injunction, decree, condition or other
requirement applicable to or imposed upon it by any law, the action by any court
or any governmental authority or agency; and the consummation of this Agreement
and the transactions set forth herein will not result in any such default or
violation.
3.6 Title to Assets. The Borrower has good and marketable
title to the assets reflected on the most recent Financial Statements, free and
clear of all liens and encumbrances, except for (i) current taxes and
assessments not yet due and payable, (ii) liens and encumbrances, if any,
reflected or noted in the Historical Financial Statements, (iii) assets disposed
of by the Borrower in the ordinary course of business since the date of the most
recent Financial Statements, and (iv) those liens or encumbrances specified on
the Addendum.
3.7 Litigation. There are no actions, suits, proceedings or
governmental investigations pending or, to the knowledge of the Borrower,
threatened against the Borrower, none of which could result in a material
adverse change in its business, assets, operations, financial condition or
results of operations and there is no basis known to the Borrower for any
action, suit, proceedings or investigation which could result in such a material
adverse change. All pending or threatened litigation against the Borrower is
listed on the Addendum.
3.8 Tax Returns. The Borrower has filed all returns and
reports that are required to be filed by it in connection with any federal,
state or local tax, duty or charge levied, assessed or imposed upon it or its
property or withheld by it, including unemployment, social security and similar
taxes and all of such taxes, have been either paid or adequate reserve or other
provision has been made.
3.9 Employee Benefit Plans. Each employee benefit plan as
to which the Borrower may have any liability complies in all material respects
with all applicable provisions of the Employee Retirement Income Security Act of
1974 ("ERISA"), including minimum funding requirements, and (i) no Prohibited
Transaction (as defined under ERISA) has occurred with respect to any such plan,
(ii) no Reportable Event (as defined under Section 4043 of ERISA) has occurred
with respect to any such plan which would cause the Pension Benefit Guaranty
Corporation to institute proceedings under Section 4042 of ERISA, (iii) the
Borrower
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has not withdrawn from any such plan or initiated steps to do so, and (iv) no
steps have been taken to terminate any such plan.
3.10 Environmental Matters. The Borrower is in compliance,
in all material respects, with all Environmental Laws, including, without
limitation, all Environmental Laws in jurisdictions in which the Borrower owns
or operates, or has owned or operated, a facility or site, stores Collateral,
arranges or has arranged for disposal or treatment of hazardous substances,
solid waste or other waste, accepts or has accepted for transport any hazardous
substances, solid waste or other wastes or holds or has held any interest in
real property or otherwise. Except as otherwise disclosed on the Addendum, no
litigation or proceeding arising under, relating to or in connection with any
Environmental Law is pending or, to the best of the Borrower's knowledge,
threatened against the Borrower, any real property which the Borrower holds or
has held an interest or any past or present operations of the Borrower. No
release, threatened release or disposal of hazardous waste, solid waste or other
wastes is occurring, or to the best of the Borrower's knowledge has occurred,
on, under or to any real property in which the Borrower holds any interest or
performs any of its operations, in violation of any Environmental Law. As used
in this Section, "litigation or proceeding" means any demand, claim notice,
suit, suit in equity, action, administrative action, investigation or inquiry
whether brought by a governmental authority or other person, and "Environmental
Laws" means all provisions of laws, statutes, ordinances, rules, regulations,
permits, licenses, judgments, writs, injunctions, decrees, orders, awards and
standards promulgated by any governmental authority concerning health, safety
and protection of, or regulation of the discharge of substances into, the
environment.
3.11 Intellectual Property. The Borrower owns or is
licensed to use all patents, patent rights, trademarks, trade names, service
marks, copyrights, intellectual property, technology, know-how and processes
necessary for the conduct of its business as currently conducted that are
material to the condition (financial or otherwise), business or operations of
the Borrower.
3.12 Regulatory Matters. No part of the proceeds of the
Loan will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the Board
of Governors of the Federal Reserve System as now and from time to time in
effect or for any purpose which violates the provisions of the Regulations of
such Board of Governors.
3.13 Solvency. As of the date hereof and after giving
effect to the transactions contemplated by the Loan Documents, (i) the aggregate
value of the Borrower's assets will exceed its liabilities (including
contingent, subordinated, unmatured and unliquidated liabilities), (ii) the
Borrower will have sufficient cash flow to enable it to pay its debts as they
mature, and (iii) the Borrower will not have unreasonably small capital for the
business in which it is engaged.
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3.14 Disclosure. None of the Loan Documents contains or will
contain any untrue statement of material fact or omits or will omit to state a
material fact necessary in order to make the statements contained in this
Agreement or the Loan Documents not misleading. There is no fact known to the
Borrower which materially adversely affects or, so far as the Borrower can now
foresee, might materially adversely affect the business, assets, operations,
financial condition or results of operation of the Borrower and which has not
otherwise been fully set forth in this Agreement or in the Loan Documents.
4. Affirmative Covenants. The Borrower agrees that from the
date of execution of this Agreement until all Obligations have been fully paid
and any commitments of the Bank to the Borrower have been terminated, the
Borrower will:
4.1 Books and Records. Maintain books and records in
accordance with GAAP and give representatives of the Bank access thereto at all
reasonable times, including permission to examine, copy and make abstracts from
any of such books and records and such other information as the Bank may from
time to time reasonably request, and the Borrower will make available to the
Bank for examination copies of any reports, statements or returns which the
Borrower may make to or file with any governmental department, bureau or agency,
federal or state.
4.2 Interim Financial Statements; Certificate of No
Default. Furnish the Bank within forty-five (45) days after the end of each
quarter the Borrower's Financial Statements for such period, in reasonable
detail, certified by an authorized officer of the Borrower and prepared in
accordance with GAAP applied from period to period. The Borrower shall also
deliver a certificate as to its compliance with applicable financial covenants
for the period then ended and whether any Event of Default exists, and, if so,
the nature thereof and the corrective measures the Borrower proposes to take. If
the Borrower is not a natural person, "Financial Statements" means the
Borrower's consolidated and, if required by the Bank in its sole discretion,
consolidating balance sheets, income statements and statements of cash flows for
the year, month or quarter together with year-to-date figures and comparative
figures for the corresponding periods of the prior year. If the Borrower is a
natural person, "Financial Statements" means the Borrower's personal financial
statement and tax returns.
4.3 Annual Financial Statements. Furnish the Borrower's
Financial Statements to the Bank within ninety (90) days of each fiscal and
semiannual period. Those Financial Statements will be prepared on a reviewed
basis in accordance with GAAP by an independent certified public accountant
selected by the Borrower and satisfactory to the Bank. Audited Financial
Statements shall contain the unqualified opinion of an independent certified
public accountant and its examination shall have been made in accordance with
GAAP consistently applied from period to period.
4.4 Payment of Taxes and Other Charges. Pay and discharge
when due all indebtedness and all taxes, assessments, charges, levies and other
liabilities imposed upon the Borrower, its income, profits, property or
business, except those which currently are being
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contested in good faith by appropriate proceedings and for which the Borrower
shall have set aside adequate reserves or made other adequate provision with
respect thereto acceptable to the Bank in its sole discretion.
4.5 Maintenance of Existence, Operation and Assets. Do all
things necessary to maintain, renew and keep in full force and effect its
organizational existence and all rights, permits and franchises necessary to
enable it to continue its business; continue in operation in substantially the
same manner as at present; keep its properties in good operating condition and
repair; and make all necessary and proper repairs, renewals, replacements,
additions and improvements thereto.
4.6 Insurance. Maintain with financially sound and
reputable insurers, insurance with respect to its property and business against
such casualties and contingencies, of such types and in such amounts as is
customary for established companies engaged in the same or similar business and
similarly situated. In the event of a conflict between the provisions of this
Section and the terms of any Security Documents relating to insurance, the
provisions in the Security Documents will control.
4.7 Compliance with Laws. Comply with all laws applicable
to the Borrower and to the operation of its business (including any statute,
rule or regulation relating to employment practices and pension benefits or to
environmental, occupational and health standards and controls).
4.8 Bank Accounts. Establish and maintain at the Bank the
Borrower's primary depository accounts. Borrower shall at all times maintain a
balance in its bank accounts at Bank of not less $50,000.
4.9 Financial Covenants. Comply with all of the financial
and other covenants, if any, set forth on the Addendum.
4.10 Additional Reports. Provide prompt written notice to
the Bank of the occurrence of any of the following (together with a description
of the action which the Borrower proposes to take with respect thereto): (i) any
Event of Default or potential Event of Default; (ii) any litigation filed by or
against the Borrower, (iii) any Reportable Event or Prohibited Transaction with
respect to any Employee Benefit Plan(s) (as defined in ERISA) or (iv) any event
which might result in a material adverse change in the business, assets,
operations, financial condition or results of operation of the Borrower.
5. Negative Covenants. The Borrower covenants and agrees that
from the date of execution of this Agreement until all Obligations have been
fully paid and any commitments of the Bank to the Borrower have been terminated,
the Borrower will not, except as set forth in the Addendum, without the Bank's
prior written consent:
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5.1 Indebtedness. Incur any indebtedness for borrowed money
other than: (i) the Loan and any subsequent indebtedness to the Bank; and (ii)
existing indebtedness disclosed on the Borrower's Historical Financial
Statements referred to in Section 3.2.
5.2 Liens and Encumbrances. Except as provided in Section
3.6, create, assume or permit to exist any mortgage, pledge, encumbrance or
other security interest or lien upon any assets now owned or hereafter acquired
or enter into any arrangement for the acquisition of property subject to any
conditional sales agreement in an aggregate amount in excess of $100,000
annually during any fiscal period.
5.3 Guarantees. Guarantee, endorse or become contingently
liable for the obligations of any person, firm or corporation, except in
connection with the endorsement and deposit of checks in the ordinary course of
business for collection.
5.4 Loans or Advances. Purchase or hold beneficially any
stock, other securities or evidences of indebtedness of any loans or advances
to, or make any investment or acquire any interest whatsoever in, any other
person, firm or corporation, except investments disclosed on the Borrower's
Historical Financial Statements or acceptable to the Bank in its sole
discretion.
5.5 Merger or Transfer of Assets. Merge or consolidate with
or into any person, firm or corporation or lease, sell, transfer or otherwise
dispose of all, or substantially all, of its property, assets and business
whether now owned or hereafter acquired which, at the time of such disposition
has a fair market value in excess of $100,000.
5.6 Change in Business, Management or Ownership. Make or
permit any material change in the nature of its business as carried on as of the
date hereof, in the composition of its current executive management, or in its
equity ownership.
5.7 Dividends. Declare or pay any dividends on or make any
distribution with respect to any class of its equity or ownership interest, or
purchase, redeem, retire or otherwise acquire any of its equity, except for the
amount of federal and state income tax of the principals of the Borrower
attributable to the earnings of the Borrower where the Borrower is an S
corporation or a partnership.
5.8 Lease. Lease, as lessee, real or personal property with
an aggregate annual rental value in excess of $50,000 (present leases excluded).
5.9 Capital Expenditures. Make capital expenditures for
fixed assets in an aggregate amount in excess of $100,000 annually during any
fiscal period.
6. Events of Default. The occurrence of any of the following
will be deemed to be an "Event of Default":
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6.1 Covenant Default. The Borrower shall default in the
performances of any of the covenants or agreements contained in this Agreement.
6.2 Breach of Warranty. Any Financial Statement,
representation, warranty or certificate made or furnished by the Borrower to the
Bank in connection with this Agreement shall be false, incorrect or incomplete
when made.
6.3 Other Default. The occurrence of an Event of Default as
defined in the Note or any of the Security Documents.
6.4 If there shall occur any uninsured damage to or loss,
theft or destruction of any of the Collateral of Borrower.
6.5 If a default or an Event of Default shall occur under
any agreement with any creditor of Borrower, if the effect of such default is to
cause the holder of Borrower's obligation to declare such obligation (or gives
any such holder the right to declare such obligation) due prior to its maturity
date or prior to its regularly scheduled date of payment.
6.6 If Borrower ceases to operate its business.
6.7 If Borrower fails to comply with ERISA so that grounds
exist to permit the appointment of a trustee under ERISA to administer
Borrower's retirement plan(s) or to allow the Pension Benefit Guaranty
Corporation to institute proceedings to appoint a trustee to administer such
plan(s), or to permit the entry of lien to secure any deficiency or claim.
6.8 If at any time the outstanding principal balance of the
Line of Credit exceeds the Loan Limit or the Borrowing Base.
6.9 If Bank receives any indication or evidence that
Borrower or any other Obligor may have directly or indirectly been engaged in
any type of activity which, in Bank's discretion, might result in the forfeiture
of any property of Borrower to any governmental entity, federal, state or local.
Upon the occurrence of an Event of Default, the Bank will have all rights and
remedies specified in the Note and the Security Documents and all rights and
remedies (which are cumulative and not exclusive) available under applicable law
or in equity.
7. Conditions. The Bank's obligation to make any advance
under the Loan is subject to the conditions that as of the date of the advance:
7.1 No Event of Default. No Event of Default or event which
with the passage of time, provision of notice or both would constitute an Event
of Default shall have occurred and be continuing.
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7.2 Authorization Documents. The Bank shall have been
furnished certified copies of resolutions of the board of directors or the
general partners of any partnership or corporation that executes this Agreement,
the Note or any of the Security Documents; or other proof of authorization
satisfactory to the Bank.
7.3 Receipt of Loan Documents. The Bank shall have received
the Loan Documents and such other instruments and documents which the Bank may
reasonably request in connection with the transactions provided for in this
Agreement, which may include an opinion of counsel for any party executing any
of the Loan Documents in form and substance satisfactory to the Bank.
8. Expenses. The Borrower agrees to pay the Bank, upon the
closing of this Agreement, and otherwise on demand, all costs and expenses
incurred by the Bank in connection with the (i) preparation, negotiation and
delivery of this Agreement and the other Loan Documents, and any modifications
thereto, and (ii) collecting the loan or instituting, maintaining, preserving,
enforcing and foreclosing the security interest in any of the collateral
securing the Loan, whether through judicial proceedings or otherwise, or in
defending or prosecuting any actions or proceedings arising out of or relating
to this Agreement, including reasonable fees and expenses of counsel (which may
include costs of in-house counsel), expenses for auditors, appraisers and
environmental consultants, lien searches, recording and filing fees and taxes.
9. Increased Costs. On written demand, together with the
written evidence of the justification therefor, the Borrower agrees to pay the
Bank, all direct costs incurred and any losses suffered or payments made by the
Bank as a consequence of making the Loan by reason of any change in law or
regulation or its interpretation imposing any reserve, deposit, allocation of
capital or similar requirement (including without limitation, Regulation D of
the Board of Governors of the Federal Reserve System) on the Bank, its holding
company or any of their respective assets.
10. Miscellaneous.
10.1 Notices. All notices, demands, requests, consents,
approvals and other communications required or permitted hereunder must be in
writing and will be effective upon receipt if delivered personally to such
party, or if sent by facsimile transmission with confirmation of delivery, or by
nationally recognized overnight courier service, to the address set forth below
or to such other address as any party may give to the other in writing for such
purpose:
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To the Bank:
PNC Bank, National Association
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx Xxxxxxx
Vice President
Facsimile No.: 000-000-0000
To the Borrower:
Intest Corporation
00 Xxxxxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
10.2 Preservation of Rights. No delay or omission on the
part of the Bank to exercise any right or power arising hereunder will impair
any such right or power or be considered a waiver of any such right or power or
any acquiescence therein, nor will the action or inaction of the Bank impair any
right or power arising hereunder. The Bank's rights and remedies hereunder are
cumulative and not exclusive of any other rights or remedies which the Bank may
have under other agreements, at law or in equity.
10.3 Illegality. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
10.4 Changes in Writing. No modification, amendment or
waiver of any provision of this Agreement nor consent to any departure by the
Borrower therefrom, will in any event be effective unless the same is in writing
and signed by the Bank, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. No notice to or
demand on the Borrower in any case will entitle the Borrower to any other or
further notice or demand in the same, similar or other circumstance.
10.5 Entire Agreement. This Agreement (including the
documents and instruments referred to herein) constitutes the entire agreement
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
10.6 Counterparts. This Agreement may be signed in any
number of counterpart copies and by the parties hereto on separate counterparts,
but all such copies shall constitute one and the same instrument.
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10.7 Successors and Assigns. This Agreement will be binding
upon and inure to the benefit of the Borrower and the Bank and their respective
heirs, executors, administrators, successors and assigns; provided, however,
that the Borrower may not assign this Agreement in whole or in part without the
prior written consent of the Bank and the Bank at any time may assign this
Agreement in whole or in part.
10.8 Interpretation. In this Agreement, unless the Bank and
the Borrower otherwise agree in writing, the singular includes the plural and
the plural the singular; words importing any gender include the other genders;
references to statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to; the word "or"
shall be deemed to include "and/or", the words "including", "includes" and
"include" shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections) or exhibits are
to those of this Agreement unless otherwise indicated; and references to
agreements and other contractual instruments shall be deemed to include all
subsequent amendments and other modifications to such instruments, but only to
the extent such amendments and other modifications are not prohibited by the
terms of this Agreement. Section headings in this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose. Unless otherwise specified in this Agreement, all
accounting terms shall be interpreted and all accounting determinations shall be
made in accordance with GAAP. If this Agreement is executed by more than one
party as Borrower, the obligations of such persons or entities will be joint and
several.
10.9 Indemnity. The Borrower agrees to indemnify each of
the Bank, its directors, officers and employees and each legal entity, if any,
who controls the Bank (the "Indemnified Parties") and to hold each Indemnified
Party harmless from and against any and all claims, damages, losses, liabilities
and expenses (including, without limitation, all fees of counsel with whom any
Indemnified Party may consult and all expenses of litigation or preparation
therefor) which any Indemnified Party may incur or which may be asserted against
any Indemnified Party in connection with or arising out of the matters referred
to in this Agreement or in the other Loan Documents by any person, entity or
governmental authority (including any person or entity claiming derivatively on
behalf of the Borrower), whether (a) arising from or incurred in connection with
any breach of a representation, warranty or covenant by the Borrower, or (b)
arising out of or resulting from any suit, action, claim, proceeding or
governmental investigation, pending or threatened, whether based on statute,
regulation or order, or tort, or contract or otherwise, before any court or
governmental authority, which arises out of or relates to this Agreement, any
other Loan Document, or the use of the proceeds of the Loan; provided, however,
that the foregoing indemnity agreement shall not apply to claims, damages,
losses, liabilities and expenses solely attributable to an Indemnified Party's
gross negligence or willful misconduct. The indemnity agreement contained in
this Section shall survive the termination of this Agreement, payment of any
Loan and assignment of any rights hereunder. The Borrower may participate at its
expense in the defense of any such action or claim.
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10.10 Assignments and Participations. At any time, without
any notice to the Borrower, the Bank may sell, assign, transfer, negotiate,
grant participations in, or otherwise dispose of all or any part of the Bank's
interest in the Loan. The Borrower hereby authorizes the Bank to provide,
without any notice to the Borrower, any information concerning the Borrower,
including information pertaining to the Borrower's financial condition, business
operations or general creditworthiness, to any person or entity which may
succeed to or participate in all or any part of the Bank's interest in the Loan.
10.11 Governing Law and Jurisdiction. This Agreement has
been delivered to and accepted by the Bank and will be deemed to be made in the
State where the Bank's office indicated above is located. THIS AGREEMENT WILL BE
INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE BANK'S OFFICE INDICATED ABOVE IS
LOCATED, EXCLUDING ITS CONFLICT OF LAWS RULES. The Borrower hereby irrevocably
consents to the exclusive jurisdiction of any state or federal court for the
county or judicial district where the Bank's office indicated above is located,
and consents that all service of process be sent by nationally recognized
overnight courier service directed to the Borrower at the Borrower's address set
forth herein and service so made will be deemed to be completed on the business
day after deposit with such courier; provided that nothing contained in this
Agreement will prevent the Bank from bringing any action, enforcing any award or
judgment or exercising any rights against the Borrower individually, against any
security or against any property of the Borrower within any other county, state
or other foreign or domestic jurisdiction. The Bank and the Borrower agree that
the venue provided above is the most convenient forum for both the Bank and the
Borrower. The Borrower waives any objection to venue and any objection based on
a more convenient forum in any action instituted under this Agreement.
10.12 WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE
BANK IRREVOCABLY WAIVES ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY
DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER AND THE BANK ACKNOWLEDGE
THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
10.13 Amendment and Restatement. This Agreement amends and
restates in its entirety that certain Loan Agreement between the Borrower and
the Bank dated as of February 26, 1993 as amended by the First Amendment to Loan
Documents dated June 30, 1993, the Second Amendment to Loan Documents dated June
16, 1994, and the Third Amendment to Loan Documents dated May 25, 1995 ("Prior
Agreement"), and is not intended and should not be construed to discharge,
extinguish or terminate Borrower's Obligations under the Prior Agreement. The
Security Documents remain in full force and effect and continue to secure the
Obligations of Borrower, including without limitation, all Obligations of
Borrower under this Agreement, the Note and each other Loan Document.
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The Borrower acknowledges that it has read and understood all the provisions of
this Agreement, including the waiver of jury trial, and has been advised by
counsel as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the date first
written above.
BORROWER:
[CORPORATE SEAL] INTEST CORPORATION
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx, Xx.
----------------------- --------------------------------
Print Name: Xxxx X. Xxxxx Title: CFO
Title: Secretary/Treasurer
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxx Xxxxxxx
-----------------------------------
Xxxxxx Xxxxx Xxxxxxx, Vice President
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ADDENDUM to that certain Amended and Restated Loan Agreement dated June ___ ,
1996, between INTEST CORPORATION, as the Borrower, and PNC BANK, NATIONAL
ASSOCIATION, as the Bank. Capitalized terms used in this Addendum and not
otherwise defined shall have the meanings given them in the Agreement. Section
numbers below refer to the sections of the Agreement.
3.6 Title to Assets. Describe additional liens and encumbrances below:
3.7 Litigation. Describe pending or threatened litigation, proceedings, etc.
below:
3.10 Environmental Matters. Describe below pending or threatened litigation or
proceedings arising under, relating to or in connection with any Environmental
Law:
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CONTINUATION OF ADDENDUM
FINANCIAL AND OTHER COVENANTS
The Borrower will maintain at all times a minimum Tangible Net Worth of not less
than $1,400,000.
The Borrower will maintain at all times a ratio of Total Liabilities to Tangible
Net Worth of less than 1.5 to 1.
The Borrower will maintain at all times a Current Ratio of not less than
1.5 to 1.
The Borrower will maintain at all times a minimum Working Capital of not less
than $500,000.
Borrower shall deliver to Bank such other financial information as deemed
necessary in Bank's sole discretion,
"Tangible Net Worth" means stockholders' equity in the Borrower less any
advances to third parties and all items properly classified as intangibles, in
accordance with generally accepted accounting principles.
"Total Liabilities" means Total Liabilities as defined in accordance with
generally accepted accounting principles.
"Current Ratio" means net current assets divided by net current liabilities,
each computed in accordance with generally accepted accounting principals.
"Working Capital" means the excess of net current assets over net current
liabilities of Debtor, all computed in accordance with generally accepted
accounting principals, consistently applied.
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