EXHIBIT 10(a)
TERM LOAN AGREEMENT
TERM LOAN AGREEMENT, dated as of January 14, 1997, between
NUCLEAR RESEARCH CORPORATION, a Pennsylvania corporation, with its principal
place of business at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, 00000, (the
"Borrower") and CORESTATES BANK, N.A. ("Bank"), with offices at 0000 Xxxx Xxxxx
Xxxx, Xxxxx 000, Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, 00000. The parties
hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms. As used in this Agreement, the
following terms have the following meanings (terms defined in the singular to
have the same meaning when used in the plural and vice versa):
"Affiliate" means any person (1) which directly or indirectly
controls, or is controlled by, or is under common control with the Borrower or a
Subsidiary; (2) which directly or indirectly beneficially owns or holds
twenty-five percent (25%) or more of any class of voting stock of the Borrower
or any Subsidiary; or (3) twenty-five percent (25%) or more of the voting stock
of which is directly or indirectly beneficially owned or/held by the Borrower or
a Subsidiary. The term control means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by contract, or
otherwise.
"Agreement" means this Term Loan Agreement, as amended,
supplemented, or modified from time to time.
"Bank" means CoreStates Bank, N.A. ("CoreStates"), unless the
context indicates otherwise.
"Borrower" means Nuclear Research Corporation, unless the
context indicates otherwise.
"Business Day" means any day other than a Saturday, Sunday, or
other day on which commercial banks in Philadelphia are authorized or required
to close under the laws of the Commonwealth of Pennsylvania.
"Capitalized Lease Obligations" means any amount payable with
respect to any lease of any tangible or intangible property (whether real,
personal or mixed), however denoted, which either (1) is required by GAAP to be
reflected as a liability on the face of the balance
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sheet of the lessee, or (2) based on actual circumstances existing and
ascertainable either at the commencement of the term of such lease or at any
subsequent time at which any property becomes subject thereto, can reasonably by
anticipated to impose on such lessee substantially the same economic risks and
burdens, having regard to such lessee's obligations and the lessor's rights
under the lease both during and at the termination of the lease, as would be
imposed on the lessee by any lease which is required to be so reflected on the
balance sheet of the lessee or by the ownership of the leased property.
"Collateral" means all property which is subject or is to be
subject to the Lien granted by the Security Agreements.
"Debt" means (1) indebtedness or liability for borrowed money
or for the deferred purchase price of property or service (including trade
obligations); (2) obligations as lessee under Capital Lease Obligations; (3)
current liabilities in respect of unfunded vested benefits under any Plan; (4)
obligations under letters of credit issued for the account of any Person; (5)
all obligations arising under acceptance facilities; (6) all guaranties,
endorsements (other than for collection or deposit in the ordinary course of
business), and other contingent obligations to purchase, to provide funds for
payment, to supply funds to invest in any Person, or otherwise to assure a
creditor against loss; and (7) obligations secured by any Lien on property owned
by any Person, whether or not the obligations have been assumed.
"Default" means any of the events specified in Section 7.01,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Environmental Law" means any presently existing or hereafter
enacted or decided federal, state or local statutory or common laws relating to
pollution or protection of the environment, including, without limitation, any
common law of nuisance or trespass, and any law or regulation relating to
emissions, discharges, releases or threatened release of pollutants,
contaminants or chemicals or industrial, toxic or hazardous substances or wastes
into the environment (including without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants or chemicals or industrial,
toxic or hazardous substances or waste.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations and published
interpretations thereof.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) which together with the Borrower would be treated as a single
employer under Section 4001 of ERISA.
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"Event of Default" means any of the events specified in
Section 7.0l, provided that any requirement for the giving of notice, the lapse
of time, or both, or any other condition, has been satisfied.
"GAAP" means generally accepted accounting principles in the
United States.
"Guarantors" mean N.R.C. Acquisition Corp., a Pennsylvania
corporation and Measurement Dynamics LLC, a New Jersey limited liability
company.
"Guaranty Agreements" mean the Guaranty Agreements dated as of
the date of this Agreement, as amended, modified or supplemented from time to
time, executed and delivered by the Guarantors to the Bank.
"Hazardous Materials" means any contaminants, hazardous
substances, regulated substances or hazardous wastes which may be the subject of
liability pursuant to any Environmental Law.
"Head Office" means the principal office of CoreStates Bank,
N.A. at 0000 Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
"Lending Office" means for each type of Loan, the Lending
Office of the Bank (or of an affiliate of the Bank) designated for such type of
Loan on the signature pages hereof or such other office of the Bank (or of an
affiliate of the Bank) as the Bank may from time to time specify to the Borrower
as the office at which its Loans of such type are to be made and maintained.
"Lien" means any mortgage, deed of trust, pledge, security
interest, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), or preference, priority, or other security agreement or
preferential arrangement, charge, or encumbrance of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the Uniform Commercial Code or comparable law of any jurisdiction to evidence
any of the foregoing).
"Loan" means the Term Loan.
"Loan Document(s)" means this Agreement, the Note, the
Mortgage, the Guaranty Agreements, the General Assignment of Government
Contracts and the Proceeds thereof, the Assignment of Proceeds of Letter of
Credit and the Security Agreements.
"Note" means the Commercial Promissory Note.
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"Person" means an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated association, joint
venture, governmental authority, or other entity of whatever nature.
"Security Agreement(s)" means, collectively, the Security
Agreements to be delivered by the Borrower and the Guarantors under the terms of
this Agreement, unless the context indicates otherwise.
"Subsidiary" means a corporation the shares of stock of which
having ordinary voting power (other than stock having such power only by reason
of the happening of a contingency) to elect a majority of the board of directors
or other managers of such corporation are at the time owned, or the management
of which is otherwise controlled, directly or indirectly through one or more
intermediaries or both, by the Borrower or Guarantors.
Section 1.02. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP, and all
financial data submitted pursuant to this Agreement shall be prepared in
accordance with such principles.
ARTICLE II
AMOUNT AND TERMS OF THE LOAN; SECURITY FOR THE LOAN
Section 2.01. Term Loan. The Bank agrees, on the terms and
conditions hereinafter set forth, to make a loan (the "Term Loan") to the
Borrower, in accordance with the terms of the Commercial Promissory Note as
defined below, in an aggregate principal amount of One Million Eight Hundred
Thousand Dollars ($1,800,000.00).
Section 2.02. Note. The Term Loan made by the Bank under this
Agreement shall be evidenced by, and repaid with interest in accordance with, a
single promissory note of the Borrower duly completed, in the principal amount
of One Million Eight Hundred Thousand Dollars ($1,800,000.00), dated the date of
this Agreement, payable to the Bank (said promissory note, as it may be
hereafter amended, renewed or extended, the "Commercial Promissory Note").
Section 2.03. Method of Payment. The Borrower shall make each
payment of principal of and interest on the Loan and all fees owing to the Bank
on the date when due in lawful money of the United States to Bank at its Head
Office or other designated location in immediately available funds. The Borrower
hereby authorizes the Bank to charge from time to time against any account of
the Borrower with Bank any amount so due. Borrower shall pay to Bank promptly
such amounts as may be due if Borrower's deposit account balances are
insufficient. Whenever any payment to be made under this Agreement or under the
Note shall be stated to be due on a day which is not a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of the payment of
interest.
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Section 2.04. Use of Proceeds. The proceeds of the Loan
hereunder shall be used by the Borrower for the acquisition of the business
assets of TSA Systems, Ltd., the acquisition of the assets of Teledyne
Corporation and the restructuring of advances by Borrower to Measurement
Dynamics LLC.
Section 2.05. Security for the Loan. As security for the Loan
and for all amounts payable hereunder and under the Note as well as for all
other existing and future liabilities, whether absolute or contingent, due or to
become due of the Borrower to the Bank under any other loans or extensions of
credit by the Bank to the Borrower, the Bank shall receive the following:
(l) Valid, perfected first liens on and security interests in
the following Collateral:
(i All of the property, real or personal,
tangible or intangible of the Borrower, now owned or hereafter acquired,
referred to in the Security Agreements, including, without limiting the
generality of the foregoing, all of the Borrower's accounts, accounts
receivable, inventory and return goods, machinery, equipment, furniture,
fixtures, leasehold improvements, chattel paper, documents of title, contract
rights and general intangibles, including registered trademarks, trade names and
patents. The security agreements, UCC-1 Financing Statements, and all other
instruments necessary to create a perfected first lien in the aforesaid assets
shall be referred to herein collectively as the "Borrower's Security
Agreements."
(ii All of the property, real or personal,
tangible or intangible of the Guarantors, now owned or hereafter acquired,
referred to in the Security Agreements, including without limiting the
generality of the foregoing, all of the Guarantors' accounts, accounts
receivable, inventory and return goods, machinery, equipment, furniture,
fixtures, leasehold improvements, chattel paper, documents of title, contract
rights and general intangibles, including registered trademarks, trade names and
patents. The Security Agreements, UCC-1 Financing Statements, and all other
instruments necessary to create a perfected first lien in the aforesaid assets
shall be referred to herein collectively as the "Guarantors' Security
Agreements."
(2) A valid fourth lien mortgage ("Mortgage")
executed by the Borrower, covering the real estate located at 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx (the "Real Estate"), and all fixtures, machinery and
equipment necessary or incidental to the general operation and maintenance
thereof and all renewals and replacements thereof or additions thereto, and such
other property as the Bank may reasonably require, all as is more specifically
described in the Mortgage. The Mortgage shall be a fourth lien on a good and
marketable fee simple title to the mortgaged property, free and clear of all
prior liens, restrictions, easements and other encumbrances and title objections
except such as may have been approved in writing by the Bank, and except a first
lien mortgage to Bank in the principal amount of $1,600,000.00 dated May 21,
1993, and two existing mortgages in favor of Bank dated February 21, 1992 and
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August 21, 1995, respectively, each in the amount of Three Hundred Thousand
Dollars ($300,000.00).
(3) Unconditional Guaranty Agreements, in favor of
Bank, executed by the Guarantors, which Guaranty Agreements shall guarantee
payment and not merely collection of the entire indebtedness evidenced by the
Note, and also the prompt performance of all obligations under the Note and this
Agreement, and, as to the Guaranty of N.R.C. Acquisition Corp., the prompt
performance of all obligations under all other documents evidencing the Loans
and all other payments and obligations from Borrower to Bank now existing or
hereafter arising, provided, however, that the Guaranty Agreement of Measurement
Dynamics LLC, as such Agreement relates to the Term Loan Agreement, shall be
limited only to the maximum of Four Hundred Thousand Dollars ($400,000.00) owed
under the Term Loan Agreement plus interest and costs relating to such amount.
(4) Assignment of a confirmed letter of credit and
the proceeds thereof in the original face amount of Six Million Four Hundred
Seventy-One Thousand Ninety Dollars and Ninety-Five Cents ($6,471,090.95) issued
by the Korea Exchange Bank, said assignment being referred to herein as the
"Assignment of the Korea Exchange Bank Letter of Credit."
(5) Assignment of all existing and future government
contracts, and the proceeds thereof, between Borrower and the United States
Government, or any agency, department or unit thereof, where the total contract
amount exceeds Five Hundred Thousand Dollars ($500,000.00). The Borrower shall
execute a General Assignment of Government Contracts on the date hereof and,
subject to the provisions set forth below, provide specific assignments of and
consents to the assignment of those contracts promptly after each such contract
is executed.
(6) At Bank's request, confirmation by CoreStates
Trade Finance Department and assignment of any and all future letters of credit,
and the proceeds thereof, to or in favor of Borrower as beneficiary where the
amount orsuch letter of credit exceeds One Million Dollars ($1,000,000.00).
To the foregoing ends, contemporaneously with the
execution and delivery of this Agreement, (i) the Borrower will execute and
deliver to the Bank the Mortgage and Borrower's Security Agreements, (ii) the
Borrower will execute and deliver to the Bank the Assignment of the Korea
Exchange Bank Letter of Credit and the General Assignment of Government
Contracts, (iii) the Guarantors will execute and deliver to the Bank the
Guaranty Agreements, and (iv) the Guarantors will execute and deliver to the
Bank the Guarantors' Security Agreements. If, as and when letters of credit are
issued to or in favor of Borrower as beneficiary as provided in subsection (6)
above, Borrower shall, promptly upon request of Bank, provide confirmation to
the CoreStates Trade Finance Department and execute all reasonably required
documentation to effect the assignment of the letter of credit to Bank. Borrower
shall make all reasonable efforts and take all required steps to attempt to
obtain the specific assignment of and consent to the assignment of all existing
and future contracts as specified in
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Section 2.05(5) above, such efforts to include, without limitation, the
preparation and filing of all initial documents and requests, the preparation
and filing of all appropriate responses to requests for follow-up documentation
and follow-up efforts on all such requests by telephone and written
correspondence. Copies of any and all correspondence to and from any
governmental agency or unit thereof, in connection with all such Assignments
shall be supplied to Bank contemporaneously as such correspondence is generated
or received.
Section 2.06. Late Fees. In the event any of the aforesaid
payments of principal and/or interest, in whole or in part, are fifteen (15)
days beyond their due date, Borrower shall pay Bank a "late charge" of five
cents ($.05) for each dollar ($1.00) so overdue to cover the extra expenses of
handling delinquent payments.
Section 2.07. Commitment Fee. The Borrower shall pay to the
Bank a commitment fee equal to one percent (1%) of the principal amount of the
Loan funds utilized to fund the acquisition of TSA Systems, Ltd. and Teledyne
Corporation and one-half percent (1/2%) of the principal amount of the Loan
funds utilized to fund the restructuring of advances to Measurement Dynamics
LLC.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01. Condition Precedent to Term Loan. The obligation
of the Bank to make the Term Loan to the Borrower is subject to the condition
precedent that the Bank shall have received on or before the day of the Term
Loan each of the following, in form and substance satisfactory to the Bank and
its counsel:
(1) The Commercial Promissory Note duly executed by
the Borrower.
(2) The Mortgage duly executed by the Borrower for
recording as a fourth lien mortgage lien on the Real Estate located at 000 Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx.
(3) The Borrower's Security Agreements duly executed
by the Borrower, together with such number of financing statements (UCC-l) duly
executed by the Borrower, as debtor, for filing under the Uniform Commercial
Code of all jurisdictions necessary or in the opinion of the Bank, desirable to
perfect the security interest created by the Borrower's Security Agreements.
(4) The Assignment of the Korea Exchange Bank Letter
of Credit and the General Assignment of Government Contracts duly executed by
the Borrower.
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(5) A certificate (dated the date of this Agreement)
of the Secretary of the Borrower setting forth and certifying as true and
correct all corporate action taken by the Borrower, including resolutions of its
Board of Directors, authorizing the execution, delivery, and performance of the
Loan Documents to which it is a party and each other document to be delivered
pursuant to this Agreement.
(6) The Guaranty Agreements executed by the
Guarantors.
(7) The Guarantors' Security Agreements duly
executed by the Guarantors, together with such number of financing statements
(UCC-1) duly executed by the Guarantors, as debtor, for filing under the Uniform
Commercial Code of all jurisdictions necessary or, in the opinion of the Bank,
desirable to perfect the security interest created by the Guarantors' Security
Agreements.
(8) A certificate (dated the date of this Agreement)
of the Secretary of the Guarantors (a) setting forth and certifying as true and
correct all corporate action taken by the Guarantors, including resolutions of
its Board of Directors, authorizing the execution, delivery, and performance of
the Loan Documents to which it is a party and each other document to be
delivered pursuant to this Agreement and (b) certifying the names and true
signatures of the officers of the Guarantors authorized to sign the Loan
Documents to which it is a party and the other documents to be delivered by the
Guarantors under this Agreement.
(9) Evidence of all polices of fire insurance with
extended coverage and flood coverage (if necessary), covering any loss or damage
to the Real Estate and insurable equipment, howsoever such loss or damage may
arise, such insurance to be placed with such companies and in such amounts as
Bank shall require. All premiums required to maintain all such insurance in
force and effect shall be paid by Borrower, and evidence of payment shall be
furnished to Bank. All such insurance shall be maintained in such form as to be
available to and for the protection of Borrower and Borrower's agents and Bank.
The fire and casualty insurance policy or policies shall contain the standard
mortgagee and loss payee clause making losses payable thereunder to Bank.
Receipt of evidence of insurance policies acceptable to Bank pursuant to any
provisions hereunder shall not thereafter bar Bank from requiring additional
insurance, as Bank may deem necessary or desirable from time to time.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Bank that:
Section 4.01. Incorporation, Good Standing and Due
Qualification. The Borrower is a corporation duly incorporated, validly
existing, and in good standing under the laws of the jurisdiction of its
incorporation; has the corporate power and authority to own its
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assets and to transact the business in which it is now engaged or proposed to be
engaged; and, to the best of Borrower's knowledge, is duly qualified as a
foreign corporation and in good standing under the laws of each other
jurisdiction in which such qualification is required.
Section 4.02. Corporate Power and Authority. The execution,
delivery, and performance by the Borrower of the Loan Documents have been duly
authorized by all necessary corporate action and do not and will not (l) require
any consent or approval of the shareholders of such corporation; (2) contravene
such corporation's charter or bylaws; (3) cause Borrower to violate any
provision of or cause or result in a breach of or constitute a default under any
law, rule, regulation (including, without limitation, all regulations of the
Board of Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination, or award presently in effect having
applicability to such corporation; (4) cause or result in a breach of or
constitute a default by Borrower under any indenture or loan or credit agreement
or any other agreement, lease, or instrument to which such corporation is a
party or by which it or its properties may be bound or affected; or (5) cause or
result in or require the creation or imposition of any Lien, upon or with
respect to any of the properties now owned or hereafter acquired by such
corporation except as contemplated by this Agreement.
Section 4.03. Legally Enforceable Agreement. This Agreement
is, and each of the other Loan Documents when delivered under this Agreement
will be, legal, valid and binding obligations of the Borrower, or, Guarantors,
where applicable, enforceable against the Borrower, or, the Guarantors, where
applicable, in accordance with their respective terms, except to the extent that
such enforcement may be limited by applicable bankruptcy, insolvency, and other
similar laws affecting creditor's rights generally.
Section 4.04. Financial Statements; Accuracy of Information.
All information, financial statements, exhibits and reports furnished by the
Borrower and the Guarantors, to the Bank in connection with this Agreement and
the borrowings contemplated hereby are, and all such information, financial
statements, exhibits and reports hereafter furnished by the Borrower and the
Guarantors, to the Bank will be true and correct in every material respect on
the date furnished to the Bank, and no such information, financial statements,
exhibit or report contains or will contain any material misstatement of fact or
omits or will omit to state a material fact or any fact necessary to make the
statement contained therein not materially misleading.
Section 4.05. Labor Disputes and Acts of God. Neither the
business nor the properties of the Borrower or the Guarantors are affected by
any fire, explosion, accident, strike, lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) materially and adversely
affecting such business or properties or the operation of the Borrower or the
Guarantors.
Section 4.06. Other Agreements. The Borrower is not a party to
any indenture, loan or credit agreement, or to any lease or other agreement or
instrument, or subject to any charter or corporation restriction which is
reasonably likely to have a material adverse effect on the business, properties,
assets, operations, or conditions, financial or otherwise, of the Borrower or
the ability of the Borrower to carry out its obligations under the Loan
Documents to which it
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is a party. The Borrower is not in default in any respect in the performance,
observance or fulfillment of any of the obligations, covenants, or conditions
contained in any agreement or instrument material to its business to which it is
a party.
Section 4.07. Litigation. There is no pending or, to
Borrower's knowledge, threatened action or proceeding against or affecting the
Borrower before any court, governmental agency, or arbitrator which is
reasonably likely to, in any one case or in the aggregate, materially adversely
affect the financial condition, operations, properties, or business of the
Borrower or the ability of the Borrower to perform its obligation under the Loan
Documents to which it is a party.
Section 4.08. No Defaults on Outstanding Judgments or Orders.
The Borrower has satisfied all judgments and is not in material default with
respect to any judgment, writ, injunction, decree, rule or regulation of any
court, arbitrator, or federal, state, municipal, or other governmental
authority, commission, board, bureau, agency, or instrumentality, domestic or
foreign.
Section 4.09. Ownership and Liens. The Borrower and the
Guarantors have title to, or valid leasehold interests in, all of their
respective properties and assets, real and personal, (other than any properties
or assets disposed of in the ordinary course of business), and none of the
properties and assets owned by the Borrower or Guarantors is subject to any
Lien, except for existing purchase money liens and liens in favor of Bank.
Section 4.10. ERISA. The Borrower is in compliance in all
material respects with all applicable provisions of ERISA. Neither a Reportable
Event nor a Prohibited Transaction has occurred and is continuing with respect
to any Plan; no notice of intent to terminate a Plan has been filed nor has any
Plan been terminated; no circumstances exist which constitute grounds under
Section 4042 of ERISA entitling the PBGC to institute proceedings to terminate,
or appoint a trustee to administer a Plan, nor has the PBGC instituted any such
proceedings; neither the Borrower nor any ERISA Affiliate has completely or
partially withdrawn under Sections 4201 or 4204 of ERISA from a Multiemployer
Plan; Borrower and each ERISA Affiliate have met their minimum funding
requirements under ERISA with respect to all of their Plans and the present fair
market value of all Plan assets exceeds the present value of all vested benefits
under each Plan, as determined on the most recent valuation date of the Plan and
in accordance with the provisions of ERISA and the regulations thereunder for
calculating the potential liability of the Borrower or any ERISA Affiliate to
PBGC or the Plan under Title IV of ERISA; and neither the Borrower nor any ERISA
Affiliate has incurred any liability to the PBGC under ERISA.
Section 4.11. Operation of Business. The Borrower possesses
all licenses, permits, franchises, patents, copyrights, trademarks, and trade
names, or rights thereto, to conduct its business substantially as now conducted
and as presently proposed to be conducted, and the Borrower is not in material
violation of any valid rights of others with respect to any of the foregoing.
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Section 4.12. Taxes. The Borrower and the Guarantors have
filed all tax returns (federal, state and local) required to be filed and have
paid all taxes, assessments, and governmental charges and levies thereon to be
due, including interest and penalties, except the filing of tax returns or the
payment of taxes, if any, being contested by the Borrower or the Guarantors, and
disclosed to the Bank in writing or those where the failure to file or pay is
not reasonably likely to have a material adverse effect on Borrower.
Section 4.13. Debt. The Borrower is not indebted under any
credit agreement, indenture, purchase agreement, guaranty, Capital Lease
Obligations, or other investment, agreement or arrangement except as disclosed
in the Borrower's financial statements or as otherwise disclosed to the Bank in
writing or those where the failure to file or pay is not reasonably likely to
have a material adverse affect on Borrower.
Section 4.14. Environmental Matters. To the best of the
Borrower's knowledge, no real property owned or leased by the Borrower, or owned
by the Guarantors is in material violation of any Environmental Laws, no
Hazardous Materials are present on said real property except for materials used
in Borrower's business which are stored, maintained and utilized in accordance
with all applicable laws, rules and regulations, and neither the Borrower nor
the Guarantors have been identified in any litigation, administrative
proceedings or investigation as a responsible party for any liability under any
Environmental Laws.
Section 4.15. Mortgage Liens. The mortgage lien granted to the
Bank pursuant to the Mortgage will be superior and prior to any liens of all
third persons existing on the date of its execution and delivery or thereafter
arising by way of lien or otherwise to the full extent provided by law upon the
recording of such mortgage in the Office of the Recorder of Deeds of Bucks
County except for existing first, second and third mortgages to Bank. All such
action as is necessary to establish the mortgage lien of the Bank and their
priority as described in the preceding sentence will have been taken, and there
will be as of the date of recording of such mortgage no necessity for any
further action in order to protect, preserve and continue the mortgage lien and
such priority, except that if the failure to record the Mortgage or the
recording of the Mortgage in a different order of priority is the result of the
actions or inactions of Bank, Borrower shall have no obligation or liability in
connection therewith. All recording fees and other expenses in connection with
each such action have been or will be paid by the Borrower.
ARTICLE V
AFFIRMATIVE COVENANTS
So long as the Note shall remain unpaid or this Agreement
shall remain in effect, the Borrower will:
Section 5.01. Maintenance of Existence. Preserve and maintain
its corporate existence and good standing in the jurisdiction of its
incorporation, and qualify and remain
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qualified as a foreign corporation in each jurisdiction in which such
qualification is required and where the failure to qualify would have a material
adverse effect upon Borrower.
Section 5.02. Maintenance of Records. Keep accurate records
and books of account, in which complete entries will be made in accordance with
the GAAP consistently applied, reflecting all financial transactions of the
Borrower.
Section 5.03. Maintenance of Properties. Maintain, keep and
preserve all of its properties (tangible and intangible) necessary or useful in
the proper conduct of its material business in reasonably good working order and
condition, ordinary wear and tear excepted.
Section 5.04. Conduct of Business; Permits and Approvals;
Compliance with Laws. Continue to engage in an efficient and economical manner
in a business of the same general type as conducted by it on the date of this
Agreement; maintain in full force and effect, its franchises, and all licenses,
patents, trademarks, trade names, contracts, permits, approvals and other rights
necessary to the profitable conduct of its business; and comply in all material
respects with all applicable laws, rules, regulations and orders, except for
noncompliance which is not reasonably expected to have any adverse effect on
Borrower.
Section 5.05. Maintenance of Insurance. Maintain insurance,
including the fire insurance and flood insurance policies described in Section
3.01(9) above, naming Bank as Lender Loss Payee, with financially sound and
reputable insurance companies or associations in such amounts and covering such
risks as are usually carried by companies engaged in the same or a similar
business and similarly situated, which insurance may provide for reasonable
deductibility from coverage thereof.
Section 5.06. Payment of Debt; Payment of Taxes, etc. Promptly
pay and discharge:
(1) All of its Debt in accordance with the terms
thereof;
(2) All taxes, assessments, and governmental charges
or levies imposed upon it or upon its income and profits, upon any of its
property, real, personal or mixed, or upon any part thereof, before the same
shall become in default;
(3) All lawful claims for labor, materials and
supplies or otherwise, which, if unpaid, might become a lien or charge upon such
property or any part thereof;
provided, however, that so long as the Borrower first notifies the Bank of its
intention to do so, the Borrower shall not be required to pay and discharge any
such Debt, tax, assessment, charge, levy or claim so long as the failure to so
pay or discharge does not constitute or result in a Default or an Event of
Default under Section 7.01(7) and so long as no foreclosure or other similar
proceeding shall have been commenced against such property or any part thereof
and so
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long as the validity thereof shall be contested in good faith by appropriate
proceedings diligently pursued and it shall have set aside on its books adequate
reserves with respect thereto.
Section 5.07. Right of Inspection. At any reasonable time and
from time to time, during normal business hours and with reasonable prior
notice, permit the Bank or any agent or representative thereof (a) to examine
and make copies of and abstracts from the records and books of account of, and
visit the properties of, the Borrower and the Guarantors, and to inspect and
verify all inventory of Borrower, and (b) to discuss the affairs, finances, and
accounts of the Borrower and the Guarantors, with any of its officers and
directors and the Borrower's independent accountants. Borrower shall pay all
costs assessed by Bank for such inspections, or field examinations.
Section 5.08. Reporting Requirements. Furnish to the Bank:
(1) Within sixty (60) days after the end of each
fiscal quarter of the Borrower and the Guarantors, internally prepared financial
statements of the Borrower and the Guarantors, including a balance sheet and
related statements of income and shareholders' equity together with Borrower's
Form 10-Q, as filed;
(2) Within one hundred twenty (120) days after the
close of each fiscal year of the Borrower and the Guarantors, financial
statements of the Borrower and the Guarantors, including a balance sheet and
related statements of income, shareholders' equity, and changes in financial
position together with Borrower's Form 10-K, as filed, all in reasonable detail,
together with all supporting schedules and notes, and prepared on an audited
basis by independent certified public accountants satisfactory to the Bank in
its reasonable discretion. Bank will, on an annual basis, review with Borrower
the quality of the work produced by Borrower's accountants;
(3) within thirty (30) days after the end of each
fiscal quarter of the Borrower, updated cash flow projections for the current
quarter;
(4) Within fifteen (15) days after the end of each
month, accounts receivables and accounts payable agings; and
(5) Such other information respecting the condition
or operations, financial or otherwise, of the Borrower as the Bank may from time
to time reasonably request, including but not limited to financial projections,
tax returns, and listings of assets.
Section 5.09. Financial Covenants. Maintain a debt to worth
ratio not to exceed 1.25 to 1 and a minimum current ratio of 1.5 to 1. For
purposes of calculation of the minimum current ratio, the entire outstanding
balance under this Agreement shall be shown as a current liability. These ratios
will be measured and reviewed annually after receipt of the audited annual
financial statements.
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Section 5.10. Further Assurances. Do such further acts and
things and execute and deliver to the Bank such additional assignments,
agreements, powers and instruments, as the Bank may reasonably require or
reasonably deem advisable to carry into effect the purposes of this Agreement or
to better assure and confirm unto the Bank its rights, powers and remedies
hereunder.
Section 5.11. Cross-Default and Cross-Collateralization. Agree
that all existing and future loan obligations of Borrower shall be
cross-collateralized and cross-defaulted.
ARTICLE VI
NEGATIVE COVENANTS
So long as the Note shall remain unpaid or this Agreement
shall remain in effect, the Borrower will not:
Section 6.01. Liens. Create, incur, assume, or suffer to
exist, any Lien upon or with respect to any of its properties, now owned or
hereafter acquired, except:
(l) Liens in favor of the Bank;
(2) Liens for taxes or assessments or other
government charges or levies if not yet due and payable or, if due and payable,
if they are being contested in good faith by appropriate proceedings promptly
initiated and diligently conducted and for which appropriate reserves are
maintained and so long as no foreclosure, distraint, sale or other similar
proceedings shall have been commenced with respect thereto;
(3) Deposits, or pledges to secure the performance
of bids, tenders, contracts (other than contracts for the payment of money),
leases (permitted under the terms of this Agreement), or public or statutory
obligations; surety, indemnity, performance, or other similar bonds; or other
similar obligations, all arising in the ordinary course of business;
(4) Existing purchase money Liens on equipment and
vehicles so long as each such Lien (i) exists upon the same terms as those
existing on the date hereof and (ii) does not secure indebtedness in a principal
amount greater than that outstanding on the date hereof and no additional assets
are furnished as Collateral to secure such Liens; and
(5) Liens securing Debt permitted under Section 6.02
of this Agreement.
Section 6.02. Debt. Create, incur, assume, or suffer to exist
any Debt, except:
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(1) Bank Debt under this Agreement, the Note, the
other Loan Documents or under any other document, instrument or agreement
between the Borrower and the Bank, including a Line of Credit to Borrower dated
even date herewith in the amount of Five Million Five Hundred Thousand Dollars
($5,500,000.00);
(2) Current accounts payable, accrued expenses and
other current items arising out of transactions (other than borrowings) in the
ordinary course of business;
(3) Indebtedness secured by purchase money security
interests and capitalized leases of equipment and vehicles, provided that the
total aggregate principal amount (including Capitalized Lease Obligations) of
all such indebtedness incurred during each calendar year shall not exceed Two
Hundred Fifty Thousand Dollars ($250,000.00) and provided that the liens and
security interests securing such indebtedness, i) are limited to the specific
identified asset purchased with such indebtedness, and ii) except for the
priority obtained as a result of its classification as a purchase money security
interest, shall in no way affect or impair the existing liens and security
interests in favor of Bank; and
(4) Indebtedness hereafter incurred in connection
with a Lien permitted in Section 6.01 above, including debt for existing
purchase money obligations.
Section 6.03. Mergers, etc. Merge or consolidate with, or
sell, assign, lease, or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to any Person, or acquire all or substantially all
of the assets or the business of any Person, except that Bank shall permit the
acquisition of the assets of TSA Systems, Ltd. and a division of Teledyne
Corporation and the Measurement Dynamics LLC transactions.
Section 6.04. Dividends. Declare or pay any dividends; or
purchase, redeem, retire, or otherwise acquire for value any of its capital
stock now or hereafter outstanding; or make any distribution of assets to its
shareholders as such whether in cash, assets or obligations of the Borrower; or
allocate or otherwise set apart any sum for the payment of any dividend or
distribution on, or for the purchase, redemption, or retirement of, any shares
of its capital stock; or make any other distribution by reduction of capital or
otherwise in respect of any shares of its capital stock, if such dividend, stock
purchase, or other action described in this paragraph would cause or result in
the occurrence of an Event of Default as defined herein.
Section 6.05. Sale of Assets. Sell, lease, assign, transfer,
or otherwise dispose of any of its now owned or hereafter acquired assets
except: (a) for inventory disposed of in the ordinary course of business; (b)
the sale or other disposition of assets no longer used or useful in the conduct
of its business; and (c) the sale or other disposition of assets provided the
proceeds of sale are used either to pay down existing term loans owed by
Borrower to Bank or to purchase substantially similar replacement assets.
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Section 6.06. Guaranties, etc. Assume, guarantee, endorse, or
otherwise be or become directly or contingently responsible or liable,
(including, but not limited to, an agreement to purchase any obligation, stock,
assets, goods, or services, or to supply or advance any funds, assets, goods, or
services, or to maintain or cause such Person to maintain a minimum working
capital or net worth, or otherwise to assure the creditors of any Person against
loss) for obligations of any Person, except guaranties by endorsement of
negotiable instruments for deposit or collection or similar transactions in the
ordinary course of business.
Section 6.07. Hazardous Materials; Indemnification. Use,
generate, treat, store, dispose of or otherwise introduce any Hazardous
Materials into or on any real property owned or leased by it, except in an
environmentally safe manner through methods meet in all material respects all of
the standards of the federal Environmental Protection Agency and any other
federal, state or local agency with authority to enforce Environmental Laws. The
Borrower hereby agrees to indemnify, reimburse, defend and hold harmless the
Bank and its directors, officers, agents and employees ("Indemnified Parties")
for, from and against all demands, liabilities, damages, costs, claims, suits,
actions, legal or administrative proceedings, interest, losses, expenses and
reasonable attorney's fees (including any such fees and expenses incurred in
enforcing this indemnity) asserted against, imposed on or incurred by any of the
Indemnified Parties, directly or indirectly pursuant to or in connection with
the application of any Environmental Law to acts or omissions occurring at any
time on or in connection with any real estate owned or leased by the Borrower or
any business conducted thereon, except for acts or omissions of Bank, its
employees or authorized agents. None of the aforesaid shall in any way limit or
restrict the right of Borrower to defend claims asserted against it or any of
the Indemnified Parties.
ARTICLE VII
EVENTS OF DEFAULT
Section 7.01. Events of Default. If any of the following
events ("Events of Default") shall occur:
(1) The Borrower shall fail to pay the principal of,
or interest on, the Note or any amount of a commitment fee or any other amount
due hereunder, if such failure is not cured within fifteen (15) days after
written notice thereof has been given to Borrower by Bank;
(2) Any representation or warranty made or deemed
made by the Borrower in this Agreement or the Security Agreements which are
contained in any certificate, document, opinion, or financial or other statement
furnished at any time under or in connection with any Loan Documents shall prove
to have been incorrect in any material respect on or as of the date made or
deemed made and the Borrower shall not have cured the effect of such false or
misleading statements within fifteen (15) days after it occurs;
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(3) The Borrower shall fail to perform or observe
any term, covenant, or agreement contained in any Loan Document to which it is a
party on its part to be performed or observed, including, without limitation,
the Security Agreements, where such failure to perform or observe is not cured
within thirty (30) days after the written notice thereof has been given to the
Borrower by the Bank;
(4) A default in the payment or performance of any
obligation of the Borrower to the Bank other than under this Agreement or the
Note and such default shall have continued uncured after the giving of any
required notice or past the expiration of any applicable grace or cure period;
(5) The Borrower shall (a) fail to pay any
indebtedness for borrowed money of the Borrower, the principal face amount of
which exceeds Two Hundred Fifty Thousand Dollars ($250,000.00), (other than
indebtedness to Bank), or any interest or premium thereon, within fifteen (15)
days of its due date (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise), or (b) fail to perform or observe any term,
covenant, or condition on its part to be performed or observed under any
agreement or instrument relating to any such indebtedness, when required to be
performed or observed, if the effect of such failure to pay or perform or
observe is to accelerate, or to permit the acceleration after the giving of
notice or passage of time, or both, of the maturity of such indebtedness, unless
such failure to perform or observe shall be waived by the holder of such
indebtedness; or any such indebtedness shall be declared to be due and payable,
or required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof;
(6) The Borrower (a) shall generally not, or shall
be unable to, or shall admit in writing its inability to pay its debts as such
debts become due; or (b) shall make an assignment for the benefit of creditors,
petition or apply to any tribunal for the appointment of a custodian, receiver,
or trustee for it or a substantial part of its assets; or (c) shall commence any
proceeding under any bankruptcy, reorganization, arrangements, readjustment of
debt, dissolution, or liquidation law or statute of any jurisdiction, whether
now or hereafter in effect; or (d) shall have any such petition or application
filed or any such proceeding commenced against it, in which an order for relief
is entered or adjudication or appointment is made and which remains undismissed
for a period of thirty (30) days or more; or (e) by any act or omission shall
indicate its consent to, approval of, or acquiescence in any such petition,
application, or proceeding, or order for relief, or the appointment of a
custodian, receiver, or trustee for all or any substantial part of its
properties; or (f) shall suffer any such custodianship, receivership, or
trusteeship to continue undischarged for a period of thirty (30) days or more;
(7) One or more judgments, decrees, or orders for
the payment of money in excess of Twenty-Five Thousand Dollars ($25,000.00)
shall be rendered against the Borrower, and such judgments, decrees, or orders
shall continue unsatisfied and in effect for a period of fifteen (15)
consecutive days without being vacated, discharged, satisfied or stayed or
bonded pending appeal;
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(8) Any of the following events occur or exist with
respect to the Borrower or any ERISA Affiliate: (a) any Prohibited Transaction
involving any Plan; (b) any Reportable Event with respect to any Plan; (c) the
filing under Section 4041 of ERISA of a notice of intent to terminate any Plan
or the termination of any Plan; (d) any event or circumstance that might
constitute grounds entitling the PBGC to institute proceedings under Section
4042 of ERISA for the termination of, or for the appointment of a trustee to
administer, any Plan, or the institution by the PBGC of any such proceedings;
(e) complete or partial withdrawal under Section 4201 or 4204 of ERISA from a
Multiemployer Plan or the reorganization, insolvency, or termination of any
Multiemployer Plan; and in each case above, such event or condition, together
with all other events or conditions, if any, could in the opinion of the Bank
subject the Borrower to any tax, penalty, or other liability to a Plan, a
Multiemployer Plan, the PBGC, or otherwise (or any combination thereof) which in
the reasonable determination of the Bank is reasonably likely to have a material
adverse effect on the financial condition, properties or operations of the
Borrower;
then, and in any such event, the Agreement shall terminate and the entire
amounts outstanding under the Loan and all interest thereon and all other
amounts payable under this Agreement shall become and be immediately due and
payable; provided that upon the happening of a Default specified in Section
7.01(6), this Agreement shall terminate and the outstanding Note and all
interest thereon and all other amounts payable thereunder shall be immediately
due and payable without declaration or other prior notice to the Borrower.
Thereupon Bank shall have all of the rights and remedies available to it under
the Loan Documents or otherwise at law or in equity. The Borrower expressly
waives any presentment, demand, protest or further notice of any kind. With
respect to all Loans payable on demand, the Bank's rights to demand payable
shall not be restricted or impaired by the absence, non-occurrence or waiver of
a default, and it is understood that the Bank may demand payment at any time.
ARTICLE VIII
CONFESSION OF JUDGMENT
Section 8.01. Upon the occurrence of any default not cured
within the applicable grace period, Borrower irrevocably authorizes and empowers
any attorney or any clerk of any court of record to appear for and confess
judgment against Borrower for such sums as are due and owing on this Term Loan
Agreement and the Commercial Promissory Note, with or without declaration, with
costs of suit, without stay of execution and with reasonable attorneys' fees
added for collection fees. If a copy of this Agreement and the Commercial
Promissory Note, verified by affidavit by or on behalf of the Bank, shall have
been filed in such action, it shall not be necessary to file the original of
this Agreement and the Master Demand Note. The authority granted hereby shall
not be exhausted by the initial exercise thereof and may be exercised by the
Bank from time to time until all sums payable by Borrower have been paid in
full.
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ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments, etc. No amendment, modification,
termination, or waiver of any provision of any Loan Document to which the
Borrower is a party, nor consent to any departure by the Borrower from any Loan
Document to which it is a party, shall in any event be effective unless the same
shall be in writing and signed by the Bank, (and, if an amendment, modification
or termination, also by Borrower), and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
Section 9.02. Notices, etc. All notices and other
communications provided for under this Agreement and under the other Loan
Documents to which the Borrower is a party shall be in writing (including
telegraphic and telex transmissions and facsimile transmissions, if subject to
pre-established verification procedures) and mailed or transmitted and
delivered,
if to the Borrower, at:
Nuclear Research Corporation
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
if to CoreStates Bank, N.A., at:
CoreStates Bank, N.A.
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx,
Vice President
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other party complying as to delivery with the terms
of this Section 9.02.
Section 9.03. No Waiver; Remedies. No failure on the part of
the Bank to exercise, and no delay in exercising, any right, power, or remedy
under any Loan Documents shall operate as a waiver thereof; nor shall any single
or partial exercise of any right under any Loan Documents preclude any other or
further exercise thereof or the exercise of any other right. The remedies
provided in the Loan Documents are cumulative and not exclusive of any remedies
provided by law.
Section 9.04. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Borrower and the Bank and their
respective successors and
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assigns, except that the Borrower may not assign or transfer any of its rights
under any Loan Document to which the Borrower is a party without the prior
written consent of the Bank.
Section 9.05. Costs, Expenses, and Taxes. The Borrower agrees
to pay (a) all costs and expenses in connection with the preparation, execution,
delivery, filing, recording of any of the Loan Documents including, but not
limited, to the reasonable fees and out-of-pocket expenses of counsel for the
Bank, and local counsel who may be retained by said counsel, with respect
thereto and with respect to advising the Bank as to its rights and
responsibilities under any of the Loan Documents; (b) all costs and expenses, if
any, in connection with the enforcement of any of the Loan Documents including,
but not limited, to the reasonable fees and out-of-pocket expenses of counsel
for the Bank and local counsel who may be retained by said counsel incurred by
the Bank in connection with the enforcement and collection of the Loan and the
Loan Documents and with respect to advising the Bank as to its rights and
responsibilities under any of the Loan Documents. In addition, the Borrower
shall pay any and all stamp and similar taxes and fees payable or determined to
be payable in connection with the execution, delivery, filing, and recording of
any of the Loan Documents and the other documents to be delivered under any such
Loan Documents, and agrees to save the Bank harmless from and against any and
all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees, so long as such delay or omission is not
caused by Bank.
Section 9.06. Right of Setoff. The Bank is hereby authorized
at any time and from time to time, without notice to the Borrower (any such
notice being expressly waived by the Borrower), to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by the Bank to or for the credit
or the account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement or the Note or any other
Loan Document, irrespective of whether or not the Bank shall have made any
demand under this Agreement or the Note or such other Loan Document and although
such obligations may be unmatured. The Bank agrees promptly to notify the
Borrower after any such setoff and application, provided that the failure to
give such notice shall not affect the validity of such setoff and application.
The rights of the Bank under this Section 9.06 are in addition to other rights
and remedies (including, without limitation, other rights of setoff) which the
Bank may have.
Section 9.07. Governing Law. This Agreement and the Note shall
be governed by, and construed in accordance with, the laws of the Commonwealth
of Pennsylvania.
Section 9.08. Severability of Provisions. Any provision of any
Loan Document which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of such Loan
Document or affecting the validity or enforceability of such provision in any
other jurisdiction.
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Section 9.9. Survival of Agreement. All covenants, agreements,
representations and warranties made herein and in the certificates delivered
pursuant hereto shall survive the making by the Bank of the Loan and the
execution and delivery to the Bank of the Note and shall continue in full force
and effect so long as the Note or any amounts due hereunder are outstanding and
unpaid.
Section 9.10. Headings. Article and Section headings in the
Loan Documents are included in such Loan Documents for the convenience of
reference only and shall not constitute a part of the applicable Loan Documents
for any other Purpose.
Section 9.11. JURISDICTION AND VENUE. IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER, THE
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED IN ANY COUNTY IN THE COMMONWEALTH OF PENNSYLVANIA
WHERE BANK OR BORROWER MAINTAIN AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION
TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH
PROCEEDING IN SUCH COUNTY.
Section 9.12. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED
HEREUNDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK TO ENTER INTO
THIS AGREEMENT.
IN WITNESS WHEREOF, INTENDING TO BE LEGALLY BOUND HEREBY,
the parties have caused this Agreement to be executed by their respective
officers thereunto duly authorized, as of the date first above written.
"Borrower" NUCLEAR RESEARCH CORPORATION
By: /s/ Xxxx X. Xxxxxxx
--------------------------- (SEAL)
Title: President
"Bank" CORESTATES BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------- (SEAL)
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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