Exhibit 10.2
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT (this "Agreement") entered into as of
April 20, 2009, between The Xxxxx Electronics Corporation, a New York
corporation, with its chief executive office located at 00 Xxxxxx Xxxx,
Xxxxxxx, Xxx Xxxxxx 00000 (the "Borrower") and TD Bank, NA., a National
banking association, with an address of 0000 Xxxx Xxxxxx, Xxxxxx, Xxx
Xxxxxx 00000 (the "Bank").
FOR VALUE RECEIVED, and in consideration of the granting by the Bank of
financial accommodations to or for the benefit of the Borrower, including
without limitation respecting the Obligations (as hereinafter defined),
the Borrower represents and agrees with the Bank, as of the date hereof
and as of the date of each loan, credit and/or other financial
accommodation, as follows:
1. THE LOAN
1.1 Revolving Loans. Bank agrees, in its sole discretion, to make
revolving loans (the "Revolving Loans") to or for the account of
Borrower, upon Borrower's request therefor, in an aggregate amount of up
to Five Hundred Thousand Dollars and Zero Cents ($500,000.00) (the
"Revolving Loan Amount"), provided there is no continuing uncured Event
of Default (as hereinafter defined) and subject to the terms and
conditions set forth herein. The Revolving Loans shall be evidenced by
that certain Revolving Term Note, of even date herewith (the "Revolving
Note"), by The Xxxxx Electronics Corporation in favor of the Bank in the
face amount of the Revolving Loan Amount. The Bank's agreement to make
any advances pursuant to this Agreement and evidenced by the Revolving
Note shall expire on May 5, 2010. This Agreement, the Revolving Note, and
any and all other documents, amendments or renewals executed and
delivered in connection with any of the foregoing are collectively
hereinafter referred to as the "Loan Documents".
1.2 Revolving Loan Account. An account shall be opened on the books of
Bank in which account a record will be kept of all Revolving Loans, and
all payments thereon and other appropriate debits and credits as provided
by this Agreement.
1.3 Interest. Interest respecting the Revolving Loans will be charged to
Borrower on the principal amount from time to time outstanding at the
interest rate specified in the Revolving Note in accordance with the
terms of the Revolving Note. If not specified in the Revolving Note,
interest will be charged at the highest rate per annum charged by Bank to
Borrower on any other Obligation based on a 360-day year and the actual
number of days elapsed.
1.4 Repayment. All loans and advances made respecting the Revolving Loans
shall be payable to Bank on or before the maturity date of the Revolving
Note.
1.5 Clean-Up. The Borrower shall fully repay to the Bank all amounts
outstanding respecting the Revolving Loans for a period of 30 consecutive
days in each year.
1.6 Overadvances. Any Revolving Loans that may be made, at the Bank's
sole discretion, in excess of the Revolving Loan Amount shall not limit
the obligations of Borrower or any of the Bank's rights or remedies
hereunder or under the Loan Documents or otherwise; all such Revolving
Loans shall be secured by the Collateral, as hereinafter defined, and
shall be due and payable to the Bank in accordance with the terms of the
Revolving Note, and shall bear interest at the rate set forth in the
Revolving Note. All checks or other items paid by Bank which cause an
overdraft in any deposit account maintained by Borrower with Bank shall,
at the option of the Bank, constitute an advance to Borrower pursuant to
this Agreement respecting the Revolving Loans, repayable on demand, and
shall be secured by all Collateral.
1.7 Authorized Persons; Advances. Any person duly authorized by a general
borrowing resolution of the Borrower, or in the absence of such a
resolution, the President, Treasurer or any Vice President of the
Borrower, or any person otherwise authorized in this paragraph, may
request discretionary loans hereunder, either orally or otherwise, but
the Bank at its option may require that all requests for loans hereunder
shall be in writing. The Bank shall incur no liability to Borrower in
acting upon any request referred to herein which the Bank believes in
good faith to have been made by an authorized person or persons. Each
loan hereunder may be credited by Bank to any deposit account of Borrower
with Bank or with any other Bank with which Borrower maintains a deposit
account, or may be paid to Borrower (or as Borrower instructs) or may be
applied to any Obligations, as Bank may in each instance elect. The
following persons currently are authorized to request advances and
authorize payments respecting Revolving Loans until the Bank receives
from Borrower, at the Bank's address, written notice of revocation of
their authority: Xxxx Xxxxx, President and CEO and Xxxxxxx X. Xxxxx,
Treasurer.
1.8 Monthly Statement. At the option of the Bank, after the end of each
month, Bank will render to Borrower a statement of the Revolving Loan
account, showing all applicable credits and debits. Each statement shall
be considered correct and to have been accepted by Borrower and shall be
conclusively binding upon Borrower in respect of all charges, debits and
credits of whatsoever nature contained therein respecting the Revolving
Loans, and the closing balance shown therein, unless Borrower notifies
Bank in writing of any discrepancy within twenty (20) days from the
mailing by Bank to Borrower of any such monthly statement.
2. GRANT OF SECURITY INTEREST
2.1 Grant of Security Interest. In consideration of the Bank's extending
credit and other financial accommodations to or for the benefit of the
Borrower, the Borrower hereby grants to the Bank a security interest in,
a lien on and pledge and assignment of the Collateral (as hereinafter
defined). The security interest granted by this Agreement is given to and
shall be held by the Bank as security for the payment and performance of
all Obligations, including, without limitation, all amounts outstanding
pursuant to the Loan Documents.
2.2 Definitions. The following definitions shall apply:
(a) "Code" shall mean the New Jersey Uniform Commercial Code (Title 12A
N.J.S.A.) as amended from time to time.
(b) "Collateral" shall mean all of the Borrower's present and future
right, title and interest in and to any and all of the personal property
of the Borrower whether such property is now existing or hereafter
created, acquired or arising and wherever located from time to time,
including without limitation:
(i) accounts;
(ii) chattel paper;
(iii) goods;
(iv) inventory;
(v) equipment;
(vi) fixtures
(vii) farm products;
(viii) instruments;
(ix) investment property;
(x) documents;
(xi) commercial tort claims;
(xii) deposit accounts;
(xiii) letter-of-credit rights;
(xiv) general intangibles;
(xv) supporting obligations; and
(xvi) proceeds and products of the foregoing.
(c) "Debtors" shall mean the Borrower's customers who are indebted to the
Borrower.
(d) "Bank Affiliate" shall mean any "Affiliate" of the Bank. The term
"Affiliate" shall mean with respect to any Person, (a) any Person which,
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such Person, or (b) any
Person who is a director or officer (i) of such Person, (ii) of any
subsidiary of such Person, or (iii) any person described in clause (a)
above. For purposes of this definition, control of a Person shall mean
the power, direct or indirect, (x) to vote 5% or more of the Capital
Stock having ordinary voting power for the election of directors (or
comparable equivalent) of such Person, or (y) to direct or cause the
direction of the management and policies of such Person whether by
contract or otherwise. Control may be by ownership, contract, or
otherwise.
(e) "Obligation(s)" shall mean, without limitation, all loans, advances,
indebtedness, notes, liabilities, rate swap transactions, basis swaps,
forward rate transactions, commodity swaps, commodity options, equity or
equity index swaps, equity or equity index options, bond options,
interest rate options, foreign exchange transactions, cap transactions,
floor transactions, collar transactions, forward transactions, currency
swap transactions, cross-currency rate swap transactions, currency
options and amounts, liquidated or unliquidated, owing by the Borrower to
the Bank or any Bank Affiliate at any time, of each and every kind,
nature and description, whether arising under this Agreement or
otherwise, and whether secured or unsecured, direct or indirect (that is,
whether the same are due directly by the Borrower to the Bank or any Bank
Affiliate; or are due indirectly by the Borrower to the Bank or any Bank
Affiliate as endorser, guarantor or other surety, or as borrower of
obligations due third persons which have been endorsed or assigned to the
Bank or any Bank Affiliate, or otherwise), absolute or contingent, due or
to become due, now existing or hereafter arising or contracted,
including, without limitation, payment when due of all amounts
outstanding respecting any of the Loan Documents. Said term shall also
include all interest and other charges chargeable to the Borrower or due
from the Borrower to the Bank or any Bank Affiliate from time to time and
all costs and expenses referred to in this Agreement.
(f) "Person' or 'party" shall mean individuals, partnerships,
corporations, limited liability companies and all other entities.
All words and terms used in this Agreement other than those specifically
defined herein shall have the meanings accorded to them in the Code.
2.3 Ordinary Course of Business. The Bank hereby authorizes and permits
the Borrower to hold, process, sell, use or consume in the manufacture or
processing of finished goods, or otherwise dispose of inventory for fair
consideration, all in the ordinary course of the Borrower's business,
excluding, without limitation, sales to creditors or in bulk or sales or
other dispositions occurring under circumstances which would or could
create any lien or interest adverse to the Bank's security interest or
other right hereunder in the proceeds resulting therefrom. The Bank also
hereby authorizes and permits the Borrower to receive from the Debtors
all amounts due as proceeds of the Collateral at the Borrower's own cost
and expense, and also liability, if any, subject to the direction and
control of the Bank at all times; and the Bank may at any time, without
cause or notice, and whether or not an Event of Default has occurred or
demand has been made, terminate all or any part of the authority and
permission herein or elsewhere in this Agreement granted to the Borrower
with reference to the Collateral, and notify Debtors to make all payments
due as proceeds of the Collateral to the Bank. Until Bank shall otherwise
notify Borrower, all proceeds of and collections of Collateral shall be
retained by Borrower and used solely for the ordinary and usual operation
of Borrower's business. From and after notice by Bank to Borrower, all
proceeds of and collections of the Collateral shall be held in trust by
Borrower for Bank and shall not be commingled with Borrower's other funds
or deposited in any Bank account of Borrower; and Borrower agrees to
deliver to Bank on the dates of receipt thereof by Borrower, duly
endorsed to Bank or to bearer, or assigned to Bank, as may be
appropriate, all proceeds of the Collateral in the identical form
received by Borrower.
2.4 Allowances. Absent an Event of Default the Borrower may grant such
allowances or other adjustments to Debtors (exclusive of extending the
time for payment of any item which shall not be done without first
obtaining the Bank's written consent in each instance) as the Borrower
may reasonably deem to accord with sound business practice, including,
without limiting the generality of the foregoing, accepting the return of
all or any part of the inventory (subject to the provisions set forth in
this Agreement with reference to returned inventory).
2.5 Records. The Borrower shall hold its books and records relating to
the Collateral segregated from all the Borrower's other books and records
in a manner satisfactory to the Bank; and shall deliver to the Bank from
time to time promptly at its request all invoices, original documents of
title, contracts, chattel paper, instruments and any other writings
relating thereto, and other evidence of performance of contracts, or
evidence of shipment or delivery of the merchandise or of the rendering
of services; and the Borrower will deliver to the Bank promptly at the
Bank's request from time to time additional copies of any or all of such
papers or writings, and such other information with respect to any of the
Collateral and such schedules of inventory, schedules of accounts and
such other writings as the Bank may in its sole discretion deem to be
necessary or effectual to evidence any loan hereunder or the Bank's
security interest in the Collateral.
2.6 Legends. The Borrower shall promptly make, stamp or record such
entries or legends on the Borrower's books and records or on any of the
Collateral (including, without limitation, chattel paper) as Bank shall
request from time to time, to indicate and disclose that Bank has a
security interest in such Collateral.
2.7 Inspection. The Bank, or its representatives, at any time and from
time to time, shall have the right at the sole cost and expense of
Borrower, and the Borrower will permit the Bank and/or its
representatives: (a) to examine, check, make copies of or extracts from
any of the Borrower's books, records and files (including, without
limitation, orders and original correspondence); (b) to perform field
exams or otherwise inspect and examine the Collateral and to check, test
or appraise the same as to quality, quantity, value and condition; and
(c) to verify the Collateral or any portion or portions thereof or the
Borrower's compliance with the provisions of this Agreement.
2.8 Purchase Money Security Interests. To the extent the Borrower uses
proceeds of any loans to purchase Collateral, the repayment of such loans
shall be on a "first-in-first-out" basis so that the portion of the loan
used to purchase a particular item of Collateral shall be repaid in the
order in which Borrower purchased such item of Collateral.
2.9 Search Reports. Bank shall receive prior to the date of this
Agreement UCC search results under all names used by the Borrower during
the prior five (5) years, from each jurisdiction where any Collateral is
located, from the State, if any, where the Borrower is organized and
registered (as such terms are used in the Code), and the State where the
Borrower's chief executive office is located. The search results shall
confirm that the security interest in the Collateral granted Bank
hereunder is prior to all other security interests in favor of any other
Person.
3. REPRESENTATIONS AND WARRANTIES
3.1 Organization and Qualification. Borrower is a duly organized and
validly existing corporation under the laws of the State of its
incorporation with the exact legal name set forth in the first paragraph
of this Agreement. Borrower is in good standing under the laws of said
State, has the power to own its property and conduct its business as now
conducted and as currently proposed to be conducted, and is duly
qualified to do business under the laws of each state where the nature of
the business done or property owned requires such qualification.
3.2 Subsidiaries. Borrower has no subsidiaries other than as previously
specifically consented to in writing by the Bank, if any, and the
Borrower has never consolidated, merged or acquired substantially all of
the assets of any other entity or person other than as previously
specifically consented to in writing by the Bank, if any.
3.3 Corporate Records. Borrower's corporate charter, articles or
certificate of organization or incorporation and all amendments thereto
have been duly filed and are in proper order. All outstanding capital
stock issued by the Borrower was and is properly issued and all books and
records of the Borrower, including but not limited to its minute books,
bylaws and books of account, are accurate and up to date and will be so
maintained.
3.4 Title to Properties; Absence of Liens. Borrower has good and clear
record and marketable title to all of its properties and assets, and all
of its properties and assets including the Collateral are free and clear
of all mortgages, liens, pledges, charges, encumbrances and setoffs,
other than the security interest therein granted to the Bank and those
mortgages, deeds of trust, leases of personal property and security
interests previously specifically consented to in writing by the Bank.
3.5 Places of Business. Borrower's chief executive office is correctly
stated in the preamble to this Agreement, and Borrower shall, during the
term of this Agreement, keep the Bank currently and accurately informed
in writing of each of its other places of business, and shall not change
the location of such chief executive office or open or close, move or
change any existing or new place of business without giving the Bank at
least thirty (30) days prior written notice thereof.
3.6 Valid Obligations. The execution, delivery and performance of the
Loan Documents have been duly authorized by all necessary corporate
action and each represents a legal, valid and binding obligation of
Borrower and is fully enforceable according to its terms, except as
limited by laws relating to the enforcement of creditors' rights.
3.7 Conflicts. There is no provision in Borrower's organizational or
charter documents, if any, or in any indenture, contract or agreement to
which Borrower is a party which prohibits, limits or restricts the
execution, delivery or performance of the Loan Documents.
3.8 Governmental Approvals. The execution, delivery and performance of
the Loan Documents does not require any approval of or filing with any
governmental agency or authority.
3.9 Litigation, etc. There are no actions, claims or proceedings pending
or to the knowledge of Borrower threatened against Borrower which might
materially adversely affect the ability of Borrower to conduct its
business or to pay or perform the Obligations.
3.10 Financial Statements. The Borrower has furnished to the Bank the
following Financial Statements (the "Financial Statements): balance sheet
as of June 30, 2008, and statement of profit and loss for the period
ending June 30, 2008. The balance sheet fairly presents the condition of
the Borrower at the date thereof and the statement of profit and loss
fairly presents the results of the operations of the Borrower for the
period indicated, all in conformity with generally accepted accounting
principles, consistently applied.
3.11 Accounts and Contract Rights. All accounts arise out of legally
enforceable and existing contracts, and represent unconditional and
undisputed bona fide indebtedness by a Debtor, and are not and will not
be subject to any discount (except such cash or trade discount as may be
shown on any invoice, contract or other writing delivered to the Bank).
No contract right, account, general intangible or chattel paper is or
will be represented by any note or other instrument, and no contract
right, account or general intangible is, or will be represented by any
conditional or installment sales obligation or other chattel paper,
except such instruments or chattel paper as have been or immediately upon
receipt by the Borrower will be delivered to the Bank (duly endorsed or
assigned), such delivery, in the case of chattel paper, to include all
executed copies except those in the possession of the installment buyer
and any security for or guaranty of any of the Collateral shall be
delivered to the Bank immediately upon receipt thereof by the Borrower,
with such assignments and endorsements thereof as the Bank may request.
3.12 Title to Collateral. At the date hereof the Borrower is (and as to
Collateral that the Borrower may acquire after the date hereof, will be)
the lawful owner of the Collateral, and the Collateral and each item
thereof is, will be and shall continue to be free of all restrictions,
liens, encumbrances or other rights, title or interests (other than the
security interest therein granted to the Bank), credits, defenses,
recoupments, set-offs or counterclaims whatsoever. The Borrower has and
will have full power and authority to grant to the Bank a security
interest in the Collateral and the Borrower has not transferred,
assigned, sold, pledged, encumbered, subjected to lien or granted any
security interest in, and will not transfer, assign, sell (except sales
or other dispositions in the ordinary course of business in respect to
inventory as expressly permitted in this Agreement), pledge, encumber,
subject to lien or grant any security interest in any of the Collateral
(or any of the Borrower's right, title or interest therein), to any
person other than the Bank. The Collateral is and will be valid and
genuine in all respects. The Borrower will warrant and defend the Bank's
right to and interest in the Collateral against all claims and demands of
all persons whatsoever.
3.13 Location of Collateral. Except for sale, processing, use,
consumption or other disposition in the ordinary course of business, the
Borrower will keep all inventory and equipment only at locations
specified in this Agreement or specified to the Bank in writing. The
Borrower shall, during the term of this Agreement, keep the Bank
currently and accurately informed in writing of each location where the
Borrower's records relating to its accounts and contract rights,
respectively, are kept, and shall not remove such records or any of them
to another location without giving the Bank at least thirty (30) days
prior written notice thereof.
3.14 Third Parties. The Bank shall not be deemed to have assumed any
liability or responsibility to the Borrower or any third person for the
correctness, validity or genuineness of any instruments or documents that
may be released or endorsed to the Borrower by the Bank (which shall
automatically be deemed to be without recourse to the Bank in any event)
or for the existence, character, quantity, quality, condition, value or
delivery of any goods purporting to be represented by any such documents;
and the Bank, by accepting such security interest in the Collateral, or
by releasing any Collateral to the Borrower, shall not be deemed to have
assumed any obligation or liability to any supplier or Debtor or to any
other third party, and the Borrower agrees to indemnify and defend the
Bank and hold it harmless in respect to any claim or proceeding arising
out of any matter referred to in this paragraph.
3.15 Payment of Accounts. Each account or other item of Collateral, other
than inventory and equipment, will be paid in full on or before the date
shown as its due date in the schedule of Collateral, in the copy of the
invoice(s) relating to the account or other Collateral or in contracts
relating thereto. Upon any suspension of business, assignment or trust
mortgage for the benefit of creditors, dissolution, petition in
receivership or under any chapter of the Bankruptcy Code as amended from
time to time by or against any Debtor, any Debtor becoming insolvent or
unable to pay its debts as they mature or any other act of the same or
different nature amounting to a business failure, the Borrower will
immediately notify the Bank thereof.
3.16 Changes. Since the date of the Financial Statements, there have been
no changes in the assets, liabilities, financial condition or business of
the Borrower, other than changes in the ordinary course of business, the
effect of which have, in the aggregate, been materially adverse.
3.17 Taxes. The Borrower has filed all Federal, state and other tax
returns required to be filed (except for such returns for which current
and valid extensions have been filed), and all taxes, assessments and
other governmental charges due from the Borrower have been fully paid.
The Borrower has established on its books reserves adequate for the
payment of all Federal, state and other tax liabilities (if any).
3.18 Use of Proceeds. No portion of any loan is to be used for (i) the
purpose of purchasing or carrying any "margin security" or "margin stock'
as such terms are used in Regulations U and X of the Board of Governors
of the Federal Reserve System, 12 C.F.R. 221 and 224 or (ii) primarily
personal, family or household purposes. The Collateral is not used or
acquired primarily for personal, family or household purposes.
3.19 Environmental. As of the date hereof neither the Borrower nor any of
Borrower's agents, employees or independent contractors (1) have caused
or are aware of a release or threat of release of Hazardous Materials (as
defined herein) on any of the premises or personal property owned or
controlled by Borrower ("Controlled Property") or any property abutting
Controlled Property ("Abutting Property"), which could give rise to
liability under any Environmental Law (as defined herein) or any other
Federal, state or local law, rule or regulation; (2) have arranged for
the transport of or transported any Hazardous Materials in a manner as to
violate, or result in potential liabilities under, any Environmental Law;
(3) have received any notice, order or demand from the Environmental
Protection Agency or any other Federal, state or local agency under any
Environmental Law; (4) have incurred any liability under any
Environmental Law in connection with the mismanagement, improper disposal
or release of Hazardous Materials; or (5) are aware of any inspection or
investigation of any Controlled Property or Abutting Property by any
Federal, state or local agency for possible violations of any
Environmental Law.
To the best of Borrower's knowledge, neither Borrower, nor any prior
owner or tenant of any Controlled Property, committed or omitted any act
which caused the release of Hazardous Materials on such Controlled
Property which could give rise to a lien thereon by any Federal, state or
local government. No notice or statement of claim or lien affecting any
Controlled Property has been recorded or filed in any public records by
any Federal, state or local government for costs, penalties, fines or
other charges as to such property. All notices, permits, licenses or
similar authorizations, if any, required to be obtained or filed in
connection with the ownership, operation, or use of the Controlled
Property, including without limitation, the past or present generation,
treatment, storage, disposal or release of any Hazardous Materials into
the environment, have been duly obtained or filed.
Borrower agrees to indemnify and hold the Bank harmless from all
liability, loss, cost, damage and expense, including attorney fees and
costs of litigation, arising from any and all of its violations of any
Environmental Law (including those arising from any lien by any Federal,
state or local government arising from the presence of Hazardous
Materials) or from the presence of Hazardous Materials located on or
emanating from any Controlled Property or Abutting Property whether
existing or not existing and whether known or unknown at the time of the
execution hereof and regardless of whether or not caused by, or within
the control of Borrower. Borrower further agrees to reimburse Bank upon
demand for any costs incurred by Bank in connection with the foregoing.
Borrower agrees that its obligations hereunder shall be continuous and
shall survive the repayment of all debts to Bank and shall continue so
long as a valid claim may be lawfully asserted against the Bank.
The term "Hazardous Materials" includes but is not limited to any and all
substances (whether solid, liquid or gas) defined, listed, or otherwise
classified as pollutants, hazardous wastes, hazardous substances,
hazardous materials, extremely hazardous wastes, or words of similar
meaning or regulatory effect under any present or future Environmental
Law or that may have a negative impact on human health or the
environment, including but not limited to petroleum and petroleum
products, asbestos and asbestos containing materials, polychlorinated
biphenyls, lead, radon, radioactive materials, flammables and explosives.
The term "Environmental Law" means any present and future Federal, state
and local laws, statutes, ordinances, rules, regulations and the like, as
well as common law, relating to protection of human health or the
environment, relating to Hazardous Materials, relating to liability for
or costs of remediation or prevention of releases of Hazardous Materials
or relating to liability for or costs of other actual or threatened
danger to human health or the environment. The term "Environmental Law"
includes, but is not limited to, the following statutes, as amended, any
successor thereto, and any regulations promulgated pursuant thereto, and
any state or local statutes, ordinances, rules, regulations and the like
addressing similar issues: the Comprehensive Environmental Response,
Compensation and Liability Act; the Emergency Planning and Community
Right-to-Know Act; the Hazardous Materials Transportation Act; the
Resource Conservation and Recovery Act (including but not limited to
Subtitle I relating to underground storage tanks); the Solid Waste
Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic
Substances Control Act; the Safe Drinking Water Act; the Occupational
Safety and Health Act; the Federal Water Pollution Control Act; the
Federal Insecticide, Fungicide and Rodenticide Act; the Endangered
Species Act; the National Environmental Policy Act; the River and Harbors
Appropriation Act; and N.J.S.A., Section 58:0X-00.xxx.
4. AFFIRMATIVE COVENANTS
4.1 Payments and Performance. Borrower will duly and punctually pay all
Obligations becoming due to the Bank and will duly and punctually perform
all Obligations on its part to be done or performed under this Agreement.
4.2 Books and Records; Inspection. Borrower will at all times keep proper
books of account in which full, true and correct entries will be made of
its transactions in accordance with generally accepted accounting
principles, consistently applied and which are, in the opinion of a
Certified Public Accountant acceptable to Bank, adequate to determine
fairly the financial condition and the results of operations of Borrower.
Borrower will at all reasonable times make its books and records
available in its offices for inspection, examination and duplication by
the Bank and the Bank's representatives and will permit inspection of the
Collateral and all of its properties by the Bank and the Bank's
representatives. Borrower will from time to time furnish the Bank with
such information and statements as the Bank may request in its sole
discretion with respect to the Obligations or the Bank's security
interest in the Collateral. Borrower shall, during the term of this
Agreement, keep the Bank currently and accurately informed in writing of
each location where Borrower's records relating to its accounts and
contract rights are kept, and shall not remove such records to another
location without giving the Bank at least thirty (30) days prior written
notice thereof.
4.3 Financial Statements. Borrower will furnish to Bank:
(a) as soon as available to Borrower, but in any event within 150 days
after the close of each quarterly period of its fiscal year, a full and
complete signed copy of financial statements, prepared by Borrower and
reviewed by Borrower's Independent Certified Public Accountant acceptable
to Bank, which shall include a balance sheet of the Borrower, as at the
end of such quarter, statement of cash flows and statement of profit and
loss of the Borrower reflecting the results of its operations during such
quarter, and prepared on a reviewed basis in accordance with generally
accepted accounting principles, consistently applied, subject to year-end
adjustments;
(b) as soon as available to Borrower, but in any event within 150 days
after the close of each fiscal year, a full and complete signed copy of
financial statements, prepared by Borrower and audited by Borrower's
Independent Certified Public Accountant acceptable to Bank, which shall
include a balance sheet of the Borrower, as at the end of such year,
statement of cash flows and statement of profit and loss of the Borrower
reflecting the results of its operations during such year, and prepared
on an audited basis in accordance with generally accepted accounting
principles, consistently applied together with any so-called management
letter;
(c) within 30 days after the close of each quarterly fiscal period of
Borrower, an Accounts Receivable aging report in form satisfactory to
Bank showing the total amount due from each account debtor, the month in
which each Account Receivable was created, as well as an accounts payable
aging report and such other information as Bank shall request;
(d) from time to time, such financial data and information about Borrower
as Bank may reasonably request; and
(e) any financial data and information about any guarantors of the
Obligations as Bank may reasonably request.
4.4 Conduct of Business. The Borrower will maintain its existence in good
standing and comply with all laws and regulations of the United States
and of any state or states thereof and of any political subdivision
thereof, and of any governmental authority which may be applicable to it
or to its business; provided that this covenant shall not apply to any
tax, assessment or charge which is being contested in good faith and with
respect to which reserves have been established and are being maintained.
4.5 Notice to Account Debtors. The Borrower agrees, at the request of the
Bank, to notify all or any of the Debtors in writing of the Bank's
security interest in the Collateral in whatever manner the Bank requests
and, hereby authorizes the Bank to notify all or any of the Debtors of
the Bank's security interest in the Borrower's accounts at the Borrower's
expense.
4.6 Contact with Accountant. The Borrower hereby authorizes the Bank to
directly contact and communicate with any accountant employed by Borrower
in connection with the review and/or maintenance of Borrower's books and
records or preparation of any financial reports delivered by or at the
request of Borrower to Bank.
4.7 Taxes. Borrower will promptly pay all real and personal property
taxes, assessments and charges and all franchise, income, unemployment,
retirement benefits, withholding, sales and other taxes assessed against
it or payable by it before delinquent; provided that this covenant shall
not apply to any tax assessment or charge which is being contested in
good faith and with respect to which reserves have been established and
are being maintained. The Bank may, at its option, from time to time,
discharge any taxes, liens or encumbrances of any of the Collateral, and
the Borrower will pay to the Bank on demand or the Bank in its sole
discretion may charge to the Borrower all amounts so paid or incurred by
it.
4.8 Maintenance. Borrower will keep and maintain the Collateral and its
other properties, if any, in good repair, working order and condition.
Borrower will immediately notify the Bank of any loss or damage to or any
occurrence which would adversely affect the value of any Collateral. The
Bank may, at its option, from time to time, take any other action that
the Bank may deem proper to repair, maintain or preserve any of the
Collateral, and the Borrower will pay to the Bank on demand or the Bank
in its sole discretion may charge to the Borrower all amounts so paid or
incurred by it.
4.9 Insurance. Borrower will maintain in force property and casualty
insurance on all Collateral and any other property of the Borrower, if
any, against risks customarily insured against by companies engaged in
businesses similar to that of the Borrower containing such terms and
written by such companies as may be satisfactory to the Bank, such
insurance to be payable to the Bank as its interest may appear in the
event of loss and to name the Bank as insured pursuant to a standard loss
payee clause; no loss shall be adjusted thereunder without the Bank's
approval; and all such policies shall provide that they may not be
canceled without first giving at least Thirty (30) days written notice of
cancellation to the Bank. In the event that the Borrower fails to provide
evidence of such insurance, the Bank may, at its option, secure such
insurance and charge the cost thereof to the Borrower. At the option of
the Bank, all insurance proceeds received from any loss or damage to any
of the Collateral shall be applied either to the replacement or repair
thereof or as a payment on account of the Obligations. From and after the
occurrence of an Event of Default, the Bank is authorized to cancel any
insurance maintained hereunder and apply any returned or unearned
premiums, all of which are hereby assigned to the Bank, as a payment on
account of the Obligations.
4.10 Notification of Default. Immediately upon becoming aware of the
existence of any condition or event which constitutes an Event of
Default, or any condition or event which would upon notice or lapse of
time, or both, constitute an Event of Default, Borrower shall give Bank
written notice thereof specifying the nature and duration thereof and the
action being or proposed to be taken with respect thereto.
4.11 Notification of Material Litigation. Borrower will immediately
notify the Bank in writing of any litigation or of any investigative
proceedings of a governmental agency or authority commenced or threatened
against it which would or might be materially adverse to the financial
condition of Borrower or any guarantor of the Obligations.
4.12 Pension Plans. With respect to any pension or benefit plan
maintained by Borrower, or to which Borrower contributes ("Plan"), the
benefits under which are guarantied, in whole or in part, by the Pension
Benefit Guaranty Corporation created by the Employee Retirement Income
Security Act of 1974, P.L. 93-406, as amended ("ERISA") or any
governmental authority succeeding to any or all of the functions of the
Pension Benefit Guaranty Corporation ("Pension Benefit Guaranty
Corporation"), Borrower will (a) fund each Plan as required by the
provisions of Section 412 of the Internal Revenue Code of 1986, as
amended; (b) cause each Plan to pay all benefits when due; (c) furnish
Bank (i) promptly with a copy of any notice of each Plan's termination
sent to the Pension Benefit Guaranty Corporation (ii) no later than the
date of submission to the Department of Labor or to the Internal Revenue
Service, as the case may be, a copy of any request for waiver from the
funding standards or extension of the amortization periods required by
Section 412 of the Internal Revenue Code of 1986, as amended and (iii)
notice of any Reportable Event as such term is defined in ERISA; and (d)
subscribe to any contingent liability insurance provided by the Pension
Benefit Guaranty Corporation to protect against employer liability upon
termination of a guarantied pension plan, if available to Borrower.
5. NEGATIVE COVENANTS
5.1 Financial Covenants. The Borrower will not at any time or during any
fiscal period (as applicable) fail to be in compliance with any of the
financial covenants in this section.
(a) Definitions. The following definitions shall apply to this Section:
(i) "GAAP" shall mean generally accepted accounting principles in effect
from time to time in the United States.
(ii) Debt Service Ratio shall mean: Net Profit plus Interest Expense plus
Depreciation plus Amortization minus Dividends-Preferred minus Dividends-
Common minus Withdrawals minus Non-Cash Income plus Non-Cash Expense
minus Cumulative Effect of Accounting Change minus After Tax Non-Cash Inc
Expense divided by CPLTD-Bank plus CPLTD-Other Unsecured plus CPLTD-Other
Secured plus CP-Capital Lease Obligations plus CP-Subordinated Debt plus
Interest Expense.
(b) Debt Service Coverage Ratio. Borrower to maintain a Debt Service
Cover Ratio of no less than 1.25 to 1.00, to be tested annually.
5.2 Loan to Value (Collateral). The Borrower shall not permit the
outstanding principal balance of the Loan to exceed 60 percent of the
fair market value (as determined by the Bank) of all collateral securing
the Loan at any time.
5.3 Limitations on Indebtedness. Borrower shall not issue any evidence of
indebtedness or create, assume, guarantee, become contingently liable
for, or suffer to exist indebtedness in addition to indebtedness to the
Bank, except indebtedness or liabilities of Borrower, other than for
money borrowed, incurred or arising in the ordinary course of business.
5.4 Sale of Interest. There shall not be any sale or transfer of
ownership of any interest in the Borrower without the Bank's prior
written consent unless such transfer shall not result in change in
control of Borrower.
5.5 Loans or Advances. Borrower shall not make any loans or advances to
any individual, partnership, corporation, limited liability company,
trust, or other organization or person, including without limitation its
officers and employees; provided, however, that Borrower may make
advances to its employees, including its officers, with respect to
expenses incurred or to be incurred by such employees in the ordinary
course of business which expenses are reimbursable by Borrower; and
provided further, however, that Borrower may extend credit in the
ordinary course of business in accordance with customary trade practices.
5.6 Dividends and Distributions. Borrower shall not, without prior
written consent of the Bank, pay any dividends on or make any
distribution on account of any class of Borrower's capital stock in cash
or in property (other than additional shares of such stock), or redeem,
purchase or otherwise acquire, directly or indirectly, any of such stock,
except, so long as Borrower is not in default hereunder, if Borrower is a
Subchapter S corporation, under the regulations of the Internal Revenue
Service of the United States, distributions to the Shareholders of
Borrower in such amounts as are necessary to pay the tax liability of
such Shareholders due as a result of such Shareholders' interest in the
Borrower.
5.7 Investments. The Borrower shall not make investments in, or advances
to, any individual, partnership, corporation, limited liability company,
trust or other organization or person other than as previously
specifically consented to in writing by the Bank. The Borrower will not
purchase or otherwise invest in or hold securities, nonoperating real
estate or other nonoperating assets or purchase all or substantially all
the assets of any entity other than as previously specifically consented
to in writing by the Bank.
5.8 Merger. Borrower will not merge or consolidate or be merged or
consolidated with or into any other entity.
5.9 Capital Expenditures. The Borrower shall not, directly or indirectly,
make or commit to make capital expenditures by lease, purchase, or
otherwise, except in the ordinary and usual course of business for the
purpose of replacing machinery, equipment or other personal property
which, as a consequence of wear, duplication or obsolescence, is no
longer used or necessary in the Borrower's business.
5.10 Sale of Assets. Borrower shall not sell, lease or otherwise dispose
of any of its assets, except in the ordinary and usual course of business
and except for the purpose of replacing machinery, equipment or other
personal property which, as a consequence of wear, duplication or
obsolescence, is no longer used or necessary in the Borrower's business,
provided that fair consideration is received therefor; provided, however,
in no event shall the Borrower sell, lease or otherwise dispose of any
equipment purchased with the proceeds of any loans made by the Bank.
5.11 Restriction on Liens. Borrower shall not grant any security interest
in, or mortgage of, any of its properties or assets including the
Collateral. Borrower shall not enter into any agreement with any person
other than the Bank that prohibits the Borrower from granting any
security interest in, or mortgage of, any of its properties or assets
including the Collateral.
5.12 Other Business. Borrower shall not engage in any business other than
the business in which it is currently engaged or a business reasonably
allied thereto.
5.13 Change of Name, etc. Borrower shall not change its legal name or the
State or the type of its organization, without giving the Bank at least
30 days prior written notice thereof.
6. DEFAULT
6.1 Default. "Event of Default" shall mean the occurrence of one or more
of any of the following events:
(a) default of any liability, obligation, covenant or undertaking of the
Borrower or any guarantor of the Obligations to the Bank, hereunder or
otherwise, including, without limitation, failure to pay in full and when
due any installment of principal or interest or default of the Borrower
or any guarantor of the Obligations under any other Loan Document or any
other agreement with the Bank;
(b) failure of the Borrower or any guarantor of the Obligations to
maintain aggregate collateral security value satisfactory to the Bank;
(c) default of any material liability, obligation or undertaking of the
Borrower or any guarantor of the Obligations to any other party:
(d) if any statement, representation or warranty heretofore, now or
hereafter made by the Borrower or any guarantor of the Obligations in
connection with this Agreement or in any supporting financial statement
of the Borrower or any guarantor of the Obligations shall be determined
by the Bank to have been false or misleading in any material respect when
made;
(e) if the Borrower or any guarantor of the Obligations is a corporation,
trust, partnership or limited liability company, the liquidation,
termination or dissolution of any such organization, or the merger or
consolidation of such organization into another entity, or its ceasing to
carry on actively its present business or the appointment of a receiver
for its property:
(f) the death of the Borrower or any guarantor of the Obligations and, if
the Borrower or any guarantor of the Obligations is a partnership or
limited liability company, the death of any partner or member;
(g) the institution by or against the Borrower or any guarantor of the
Obligations of any proceedings under the Bankruptcy Code 11 USC SS101 et
seq. or any other law in which the Borrower or any guarantor of the
Obligations is alleged to be insolvent or unable to pay its debts as they
mature, or the making by the Borrower or any guarantor of the Obligations
of an assignment for the benefit of creditors or the granting by the
Borrower or any guarantor of the Obligations of a trust mortgage for the
benefit of creditors;
(h) the service upon the Bank of a writ in which the Bank is named as
trustee of the Borrower or any guarantor of the Obligations;
(i) a judgment or judgments for the payment of money, in excess of
$10,000.00, shall be rendered against the Borrower or any guarantor of
the Obligations, and any such judgment shall remain unsatisfied and in
effect for any period of thirty (30) consecutive days without a stay of
execution;
(j) any xxxx, xxxx (including mechanics lien), seizure, attachment,
execution or similar process shall be issued or levied on any of the
property of the Borrower or any guarantor of the Obligations;
(k) the termination or revocation of any guaranty of the Obligations; or
(l) the occurrence of such a change in the condition or affairs
(financial or otherwise) of the Borrower or any guarantor of the
Obligations, or the occurrence of any other event or circumstance, such
that the Bank, in its sole discretion, deems that it is insecure or that
the prospects for timely or full payment or performance of any obligation
of the Borrower or any guarantor of the Obligations to the Bank has been
or may be impaired.
6.2 Acceleration. If an Event of Default shall occur, at the election of
the Bank, all Obligations shall become immediately due and payable
without notice or demand, except with respect to Obligations payable on
DEMAND, which shall be due and payable on DEMAND, whether or not an Event
of Default has occurred.
The Bank is hereby authorized, at its election, after an Event of Default
or after Demand, without any further demand or notice except to such
extent as notice may be required by applicable law, to take possession
and/or sell or otherwise dispose of all or any of the Collateral at
public or private sale; and the Bank may also exercise any and all other
rights and remedies of a secured party under the Code or which are
otherwise accorded to it in equity or at law, all as Bank may determine,
and such exercise of rights in compliance with the requirements of law
will not be considered adversely to affect the commercial reasonableness
of any sale or other disposition of the Collateral. If notice of a sale
or other action by the Bank is required by applicable law, unless the
Collateral is perishable or threatens to decline speedily in value or is
of a type customarily sold on a recognized market, the Borrower agrees
that ten (10) days written notice to the Borrower, or the shortest period
of written notice permitted by such law, whichever is smaller, shall be
sufficient notice; and that to the extent permitted by law, the Bank, its
officers, attorneys and agents may bid and become purchasers at any such
sale, if public, and may purchase at any private sale any of the
Collateral that is of a type customarily sold on a recognized market or
which is the subject of widely distributed standard price quotations. Any
sale (public or private) shall be without warranty and free from any
right of redemption, which the Borrower shall waive and release after
default upon the Bank's request therefor, and may be free of any
warranties as to the Collateral if Bank shall so decide. No purchaser at
any sale (public or private) shall be responsible for the application of
the purchase money. Any balance of the net proceeds of sale remaining
after paying all Obligations of the Borrower to the Bank shall be
returned to such other party as may be legally entitled thereto; and if
there is a deficiency, the Borrower shall be responsible for repayment of
the same, with interest. Upon demand by the Bank, the Borrower shall
assemble the Collateral and make it available to the Bank at a place
designated by the Bank which is reasonably convenient to the Bank and the
Borrower. The Borrower hereby acknowledges that the Bank has extended
credit and other financial accommodations to the Borrower upon reliance
of the Borrower's granting the Bank the rights and remedies contained in
this Agreement including without limitation the right to take immediate
possession of the Collateral upon the occurrence of an Event of Default
or after DEMAND with respect to Obligations payable on DEMAND and the
Borrower hereby acknowledges that the Bank is entitled to equitable and
injunctive relief to enforce any of its rights and remedies hereunder or
under the Code and the Borrower hereby waives any defense to such
equitable or injunctive relief based upon any allegation of the absence
of irreparable harm to the Bank.
The Bank shall not be required to marshal any present or future security
for (including but not limited to this Agreement and the Collateral
subject to the security interest created hereby), or guarantees of, the
Obligations or any of them, or to resort to such security or guarantees
in any particular order; and all of its rights hereunder and in respect
of such securities and guaranties shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it
lawfully may do so, the Borrower hereby agrees that it will not invoke
and irrevocably waives the benefits of any law relating to the marshaling
of collateral which might cause delay in or impede the enforcement of the
Bank's rights under this Agreement or under any other instrument
evidencing any of the Obligations or under which any of the Obligations
is outstanding or by which any of the Obligations is secured or
guaranteed. Except as required by applicable law, the Bank shall have no
duty as to the collection or protection of the Collateral or any income
thereon, nor as to the preservation of rights against prior parties, nor
as to the preservation of any rights pertaining thereto beyond the safe
custody thereof.
6.3 Power of Attorney. 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, upon the occurrence of an Event of
Default or after DEMAND with respect to Obligations payable on DEMAND, to
convert the Collateral into cash, including, without limitation,
completing the manufacture or processing of work in process, and the sale
(either public or private) of all or any portion or portions of the
inventory and other Collateral; to enforce collection of the Collateral,
either in its own name or in the name of the Borrower, including, without
limitation, executing releases or waivers, compromising or settling with
any Debtors and prosecuting, defending, compromising or releasing any
action relating to the Collateral; to receive, open and dispose of all
mail addressed to the Borrower and to take therefrom any remittances or
proceeds of Collateral in which the Bank has a security interest; to
notify Post Office authorities to change the address for delivery of mail
addressed to the Borrower to such address as the Bank shall designate; to
endorse the name of the Borrower in favor of the Bank upon any and all
checks, drafts, money orders, notes, acceptances or other instruments of
the same or different nature; to sign and endorse the name of the
Borrower on and to receive as secured party any of the Collateral, any
invoices, freight or express receipts, or bills of lading, storage
receipts, warehouse receipts, or other documents of title of the same or
different nature relating to the Collateral; to sign the name of the
Borrower on any notice of the Debtors or on verification of the
Collateral; and to sign, if necessary, 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. The Bank shall not be obliged to do
any of the acts or exercise any of the powers hereinabove authorized, but
if the Bank elects to do any such act or exercise any such power, it
shall not be accountable for more than it actually receives as a result
of such exercise of power, and it shall not be responsible to the
Borrower except for its own gross negligence or willful misconduct. 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
or any guarantor or surety to the Bank shall remain unpaid or the Bank is
obligated under this Agreement to extend any credit to the Borrower.
6.4 Nonexclusive Remedies. All of the Bank's rights and remedies not only
under the provisions of this Agreement but also under any other agreement
or transaction shall be cumulative and not alternative or exclusive, and
may be exercised by the Bank at such time or times and in such order of
preference as the Bank in its sole discretion may determine.
6.5 Reassignment to Borrower. Whenever the Bank deems it desirable that
any legal action be instituted with respect to any Collateral or that any
other action be taken in any attempt to effectuate collection of any
Collateral, the Bank may reassign the item in question to the Borrower
(and if the Bank shall execute any such reassignment, it shall
automatically be deemed to be without recourse to the Bank in any event)
and require the Borrower to proceed with such legal or other action at
the Borrower's sole liability, cost and expense, in which event all
amounts collected by the Borrower on such item shall nevertheless be
subject to the Bank's security interest.
7. MISCELLANEOUS
7.1 Waivers. The Borrower waives notice of intent to accelerate, notice
of acceleration, notice of nonpayment, demand, presentment, protest or
notice of protest of the Obligations, and all other notices, consents to
any renewals or extensions of time of payment thereof, and generally
waives any and all suretyship defenses and defenses in the nature
thereof.
7.2 Waiver of Homestead. To the maximum extent permitted under applicable
law, the Borrower hereby waives and terminates any homestead rights
and/or exemptions respecting any of its property under the provisions of
any applicable homestead laws, including, without limitation,
N.J.S.A.54:4-8.57.
7.3 Severability. If any provision of this Agreement or portion of such
provision or the application thereof to any person or circumstance shall
to any extent be held invalid or unenforceable, the remainder of this
Agreement (or the remainder of such provision) and the application
thereof to other persons or circumstances shall not be affected thereby.
7.4 Deposit Collateral. The Borrower hereby grants to the Bank a
continuing lien and security interest in any and all deposits or other
sums at any time credited by or due from the Bank or any Bank Affiliate
to the Borrower and any cash, securities, instruments or other property
of the Borrower in the possession of the Bank or any Bank Affiliate,
whether for safekeeping or otherwise, or in transit to or from the Bank
or any Bank Affiliate (regardless of the reason the Bank or Bank
Affiliate had received the same or whether the Bank or Bank Affiliate has
conditionally released the same) as security for the full and punctual
payment and performance of all of the liabilities and obligations of the
Borrower to the Bank or any Bank Affiliate and such deposits and other
sums may be applied or set off against such liabilities and obligations
of the Borrower to the Bank or any Bank Affiliate at any time, whether or
not such are then due, whether or not demand has been made and whether or
not other collateral is then available to the Bank or any Bank Affiliate.
7.5 Indemnification. The Borrower shall indemnify, defend and hold the
Bank and its directors, officers, employees, agents and attorneys (each
an "indemnitee") harmless of and from any claim brought or threatened
against any Indemnitee by the Borrower, any guarantor or endorser of the
Obligations, or any other person (as well as from reasonable attorneys'
fees and expenses in connection therewith) on account of the Bank's
relationship with the Borrower, or any guarantor or endorser of the
Obligations (each of which may be defended, compromised, settled or
pursued by the Bank with counsel of the Bank's election, but at the
expense of the Borrower), except for any claim arising out of the gross
negligence or willful misconduct of the Bank. The within indemnification
shall survive payment of the Obligations, and/or any termination, release
or discharge executed by the Bank in favor of the Borrower.
7.6 Costs and Expenses. The Borrower shall pay to the Bank on demand any
and all costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements, court costs, litigation and other
expenses) incurred or paid by the Bank in establishing, maintaining,
protecting or enforcing any of the Bank's rights or the Obligations,
including, without limitation, any and all such costs and expenses
incurred or paid by the Bank in defending the Bank's security interest
in, title or right to the Collateral or in collecting or attempting to
collect or enforcing or attempting to enforce payment of the Obligations.
7.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which shall
constitute but one agreement.
7.8 Complete Agreement. This Agreement and the other Loan Documents
constitute the entire agreement and understanding between and among the
parties hereto relating to the subject matter hereof, and supersedes all
prior proposals, negotiations, agreements and understandings among the
parties hereto with respect to such subject matter.
7.9 Binding Effect of Agreement. This Agreement shall be binding upon and
inure to the benefit of the respective heirs, executors, administrators,
legal representatives, successors and assigns of the parties hereto, and
shall remain in full force and effect (and the Bank shall be entitled to
rely thereon) until released in writing by the Bank. The Bank may
transfer and assign this Agreement and deliver the Collateral to the
assignee, who shall thereupon have all of the rights of the Bank; and the
Bank shall then be relieved and discharged of any responsibility or
liability with respect to this Agreement and the Collateral. The Borrower
may not assign or transfer any of its rights or obligations under this
Agreement. Except as expressly provided herein or in the other Loan
Documents, nothing, expressed or implied, is intended to confer upon any
party, other than the parties hereto, any rights, remedies, obligations
or liabilities under or by reason of this Agreement or the other Loan
Documents.
7.10 Further Assurances. Borrower will from time to time execute and
deliver to Bank such documents, and take or cause to be taken, all such
other or further action, as Bank may request in order to effect and
confirm or vest more securely in Bank all rights contemplated by this
Agreement and the other Loan Documents (including, without limitation, to
correct clerical errors) or to vest more fully in or assure to the Bank
the security interest in the Collateral granted to the Bank by this
Agreement or to comply with applicable statute or law and to facilitate
the collection of the Collateral (including, without limitation, the
execution of stock transfer orders and stock powers, endorsement of
promissory notes and instruments and notifications to obligors on the
Collateral). To the extent permitted by applicable law, Borrower
authorizes the Bank to file financing statements, continuation statements
or amendments, and any such financing statements, continuation statements
or amendments may be filed at any time in any jurisdiction. Bank may at
any time and from time to time file financing statements, continuation
statements and amendments thereto which contain any information required
by the Code for the sufficiency or filing office acceptance of any
financing statement, continuation statement or amendment, including
whether Borrower is an organization, the type of organization and any
organization identification number issued to Borrower. Borrower agrees to
furnish any such information to Bank promptly upon request. In addition,
Borrower shall at any time and from time to time take such steps as Bank
may reasonably request for Bank (i) to obtain an acknowledgment, in form
and substance satisfactory to Bank, of any bailee having possession of
any of the Collateral that the bailee holds such Collateral for Bank,
(ii) to obtain "control" (as defined in the Code) of any Collateral
comprised of deposit accounts, electronic chattel paper, letter of credit
rights or investment property, with any agreements establishing control
to be in form and substance satisfactory to Bank, and (iii) otherwise to
insure the continued perfection and priority of Bank's security interest
in any of the Collateral and the preservation of its rights therein.
Borrower hereby constitutes Bank its attorney-in-fact to execute, if
necessary, and file all filings required or so requested for the
foregoing purposes, all acts of such attorney being hereby ratified and
confirmed; and such power, being coupled with an interest, shall be
irrevocable until this Agreement terminates in accordance with its terms,
all Obligations are irrevocably paid in full and the Collateral is
released.
The Borrower agrees to execute, re-execute, cause any Guarantor(s) or
other third party(ies) involved in the loan transaction to execute and/or
re-execute and to deliver to Bank or its legal counsel, as may be deemed
appropriate, any document or instrument signed in connection with the
Loan(s) which was incorrectly drafted and/or signed, as well as any
document or instrument which should have been signed at or prior to the
closing of the Loan(s), but which was not so signed and delivered.
Borrower agrees to comply with any written request by Bank within ten
(10) days after receipt by Borrower of such request. Failure by Borrower
to so comply shall, at the option of Bank, upon notice to Borrower,
constitute an event of default under the Loan(s). The Borrower authorizes
the Bank to make any credit inquiries Bank deems necessary and authorizes
any person or credit reporting agency to give Bank a copy of the
Borrower's credit report and any other financial information it may have.
7.11 Amendments and Waivers. This Agreement may be amended and Borrower
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, if Borrower shall obtain the Bank's prior
written consent to each such amendment, action or omission to act. No
course of dealing and no delay or omission on the part of Bank in
exercising any right hereunder shall operate as a waiver of such right or
any other right and waiver on any one or more occasions shall not be
construed as a bar to or waiver of any right or remedy of Bank on any
future occasion.
7.12 Terms of Agreement. This Agreement shall continue in full force and
effect so long as any Obligations or obligation of Borrower to Bank shall
be outstanding, or the Bank shall have any obligation to extend any
financial accommodation hereunder, and is supplementary to each and every
other agreement between Borrower and Bank and shall not be so construed
as to limit or otherwise derogate from any of the rights or remedies of
Bank or any of the liabilities, obligations or undertakings of Borrower
under any such agreement, nor shall any contemporaneous or subsequent
agreement between Borrower and the Bank be construed to limit or
otherwise derogate from any of the rights or remedies of Bank or any of
the liabilities, obligations or undertakings of Borrower hereunder,
unless such other agreement specifically refers to this Agreement and
expressly so provides.
7.13 Notices. Any notice under or pursuant to this Agreement shall be a
signed writing or other authenticated record (within the meaning of
Article 9 of the Code). Any notices under or pursuant to this Agreement
shall be deemed duly received and effective if delivered in hand to any
officer of agent of the Borrower or Bank, or if mailed by registered or
certified mail, return receipt requested, addressed to the Borrower or
Bank at the address set forth in this Agreement or as any party may from
time to time designate by written notice to the other party;
notwithstanding the foregoing notices to the Bank with respect to
accounting and collateral release and notices to the Trustee pursuant to
a Deed of Trust shall be sent to the Bank as follows: Attention: VP Loan
Servicing, Loan Services, 0000 Xxxxxx Xxx, Xx. Xxxxxx XX 00000.
7.14 Governing Law. This Agreement shall take effect as a sealed
instrument and has been executed or completed and/or is to be performed
in New Jersey, and it and all transactions thereunder or pursuant thereto
shall be governed as to interpretation, validity, effect, rights, duties
and remedies of the parties thereunder and in all other respects by the
laws of New Jersey without giving effect to the conflicts of laws
principles thereof.
7.15 Reproductions. This Agreement and all documents which have been or
may be hereinafter furnished by Borrower to the Bank may be reproduced by
the Bank by any photographic, photostatic, microfilm, xerographic or
similar process, and any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or
not such reproduction was made in the regular course of business).
7.16 Publicity and Signaqe. The Bank, in its sole discretion, shall have
the right to announce and publicize the source of financing made pursuant
to this Agreement, as it deems appropriate, by means and media selected
by the Bank. Such publication shall include all pertinent information
relating to such financing, including without limitation, the term,
purpose, pricing, loan amount, name of borrowing entity and location of
property. The Bank shall also have the right to display a sign at any
real property respecting which the Bank has a security interest which
indicates that the Bank is providing the financing. If such sign is
provided, the Borrower shall cause the sign to be displayed as requested
by the Bank and shall maintain such display during the period requested
by the Bank. The form and content of the sign and/or published
information shall be in the sole discretion of the Bank and shall be
considered the sole and exclusive property of the Bank. All expenses
related to publicizing the financing shall be the sole responsibility of
the Bank.
7.17 Cancellation Fees. All fees required to cancel, satisfy or terminate
the collateral documents securing this Loan shall be paid by Borrower at
the time of payoff of the Loan.
7.18 Patriot Act. Anti-Terrorism Laws. (a) Neither Borrower nor any
Affiliate of Borrower is in violation of any statute, treaty, law
(including common law), ordinance, regulation, rule, order, opinion,
release, injunction, writ, decree or award of any Governmental Authority
relating to terrorism or money laundering, including Executive Order No.
13224 and the USA Patriot Act (collectively, "Anti-Terrorism Law") or
engages in or conspires to engage in any transaction that evades or
avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in any Anti-Terrorism Law.
(b) Neither Borrower nor any Affiliate of Borrower, or to Borrower's
knowledge, any of its respective agents acting or benefiting in any
capacity in connection with the Loans, Letters of Credit or other
transactions hereunder, is any of the following (each a "Blocked
Person"): (i) a Person that is listed in the annex to, or is otherwise
subject to the provisions of, the Executive Order No. 13224; (ii) a
Person owned or controlled by, or acting for or on behalf of, any Person
that is listed in the annex to, or is otherwise subject to the provisions
of, the Executive Order No. 13224; (iii) a Person with which Bank is
prohibited from dealing or otherwise engaging in any transaction by any
Anti-Terrorism Law; (iv) a Person that commits, threatens or conspires to
commit or supports "terrorism" as defined in the Executive Order No.
13224; (v) a Person that is named as a "specially designated national" on
the most current list published by the U.S. Treasury Department Office of
Foreign Asset Control at its official website or any replacement website
or other replacement official publication of such list; or (vi) a Person
who is affiliated with a Person listed above.
7.19 Operating and Deposit Accounts. The Borrower has volunteered and
agrees to maintain with the Bank its primary operating and/or deposit
accounts.
7.20 Jurisdiction and Venue. Borrower irrevocably submits to the
nonexclusive jurisdiction of any Federal or state court sitting in New
Jersey, over any suit, action or proceeding arising out of or relating to
this Agreement. Borrower irrevocably waives, to the fullest extent it may
effectively do so under applicable law, any objection it may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding brought in any such court and any claim that the same has been
brought in an inconvenient forum. Borrower hereby consents to any and all
process which may be served in any such suit, action or proceeding, (i)
by mailing a copy thereof by registered and certified mail, postage
prepaid, return receipt requested, to the Borrower's address shown in
this Agreement or as notified to the Bank and (ii) by serving the same
upon the Borrower in any other manner otherwise permitted by law, and
agrees that such service shall in every respect be deemed effective
service upon Borrower.
7.21 JURY WAIVER. THE BORROWER AND BANK EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH
LEGAL COUNSEL, (A) WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING IN CONNECTION WITH THIS AGREEMENT, THE OBLIGATIONS,
ALL MATTERS CONTEMPLATED HEREBY AND DOCUMENTS EXECUTED IN CONNECTION
HEREWITH AND (B) AGREE NOT TO SEEK TO CONSOLIDATE ANY SUCH ACTION WITH
ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE, OR HAS NOT BEEN,
WAIVED. THE BORROWER CERTIFIES THAT NEITHER THE BANK NOR ANY OF ITS
REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE BANK WOULD NOT IN THE EVENT OF ANY SUCH PROCEEDING
SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY.
Executed as an instrument under seal as of April 20, 2009.
Borrower:
The Xxxxx Electronics Coorporation
By: /s/ Xxxx Xxxxx, President and CEO
By /s/Xxxxxxx X Xxxxx, Treasurer
Accepted: TD Bank, NA.
By: /s/ Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
