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EXHIBIT 10
FOURTH AMENDMENT TO NOTE AND RESTATED LOAN AGREEMENT
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This Fourth Amendment to Note and Restated Loan Agreement (hereinafter
the "Agreement") is entered into as of the 19 day of February, 2001, by and
between The Huntington National Bank (hereinafter the "Bank") and Xxxxxx
Incorporated (hereinafter the "Borrower").
RECITALS:
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A. On or about February 28, 1997, Borrower and Bank entered into a
certain Restated Loan Agreement (hereinafter the "Loan Agreement"), setting
forth the terms of a certain extension of credit to Borrower by Bank; and
B. In connection with the execution of the Loan Agreement, Borrower
executed and delivered to Bank a certain Revolving Credit Note in the original
principal amount of Five Million and 00/100 Dollars ($5,000,000.00) dated
February 28, 1997 (hereinafter the "Revolving Note") payable on the terms and
conditions set forth therein; and
C. Borrower and Bank executed a certain FIRST MODIFICATION AND
AMENDMENT TO REVOLVING CREDIT NOTE and a certain FIRST AMENDMENT TO LOAN
AGREEMENT, both dated as of February 18, 1998; a certain SECOND MODIFICATION AND
AMENDMENT TO REVOLVING CREDIT NOTE, a certain ADDENDUM TO NOTE and a certain
SECOND AMENDMENT TO LOAN AGREEMENT, all dated as of February 26, 1999; and a
certain THIRD MODIFICATION AND AMENDMENT TO REVOLVING CREDIT NOTE and a certain
THIRD AMENDMENT TO LOAN AGREEMENT, both dated as of February 15, 2000, all
changing certain terms of the Revolving Note and/or the Loan Agreement as
further set forth therein (hereinafter collectively the "Amendments"); and
D. Borrower has requested and Bank has agreed to further amend the
Revolving Note and the Loan Agreement on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements
and promises contained herein, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties hereto for
themselves, their successors and assigns do hereby agree, represent and warrant
as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Loan Agreement.
2. LOAN AGREEMENT IN EFFECT. Except as set forth herein or in the
Amendments, the Loan Agreement and all documents executed in connection
therewith shall remain in full force, are expressly reaffirmed and incorporated
herein by this reference, and shall remain in full force and effect and continue
to govern and control the relationship between Borrower and Bank. Nothing
contained herein
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or in the Amendments shall affect or impair any right or power which Bank may
have thereunder. To the extent of any inconsistency this Agreement and the
Amendments shall govern and control.
3. AMENDMENT TO SECTION OF REVOLVING NOTE CAPTIONED PAYMENT SCHEDULE.
The second sentence of the Section of the Revolving Note captioned PAYMENT
SCHEDULE, as amended, shall be further to read as follows:
Subject to an Occurrence of Default described below, and the provisions
of the Loan Agreement, the outstanding principal balance, together with
any accrued but unpaid interest, shall be due and payable in full on
February 28, 2002.
4. AMENDMENT TO SECTION 2.1 OF THE LOAN AGREEMENT. Section 2.1 of the
Loan Agreement, as amended, shall be further amended by deleting the date
"February 28, 2001" and by inserting in its place the date "February 28, 2002."
5. AMENDMENT TO SECTION 2.4(b)(i) OF THE LOAN AGREEMENT. Section
2.4(b)(i) of the Loan Agreement shall be amended by deleting the phrase "based
upon reference to information appearing on the display designated as page
"LIBOR" on the Reuters Monitor Money Rate Service (or such other page as may
replace the LIBOR page on that service for the purpose of displaying London
interbank offered rates of major banks)" and by inserting in its place the
phrase "based upon information which appears on page LIBOR01, captioned British
Bankers Assoc. Interest Settlement Rates, of the Reuters America Network, a
service of Reuters America Inc. (or such other page that may replace that page
on that service for the purpose of displaying London interbank offered rates;
or, if such service ceases to be available or ceases to be used by the Bank,
such other reasonably comparable money rate service as the Bank may select)."
6. FACILITY FEE AND EXPENSES. As required under the Loan Agreement,
Borrower shall pay a facility fee of $5,000.00 upon execution hereof, and shall
reimburse the Bank upon demand for all out-of-pocket costs, charges and
expenses of the Bank (including reasonable fees and disbursements of legal
counsel to Bank in connection with the preparation, negotiation, execution and
delivery of this Agreement and the other agreements or documents relating hereto
or required hereby).
7. CROSS-DEFAULT. To the extent authorized by law, Borrower agrees that
a breach or default under this Agreement, the Amendments, the Revolving Note,
the Loan Agreement or any other document, whether previously, now, or hereafter
executed and delivered to Bank shall constitute a default under any and every
other document executed and delivered to Bank by Borrower at any time.
8. WAIVER OF CONTRIBUTION RIGHTS. Borrower waives any claim or other
right it may have or hereafter acquire against any other person that is
primarily or contingently liable on the Revolving Note, including without
limitation any right of subrogation, reimbursement, exoneration, contribution,
indemnification and any right to participation in any claim or remedy of Bank
against Borrower or any collateral security therefor.
9. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of Borrower and Bank and their respective successors, heirs
(where appropriate) and assigns; provided,
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however, that the foregoing shall not authorize any assignment by Borrower of
its rights or duties hereunder. Bank does not undertake to give or to do or
refrain from doing anything directly to or for the benefit of any person other
than Borrower, and, other than as described herein. Although third parties may
incidentally benefit from this Agreement, there are no intended beneficiaries
other than Borrower and Bank.
10. INDULGENCE: MODIFICATIONS. No delay or failure of Bank to exercise
any right, power or privilege hereunder shall affect such right, power or
privilege nor shall any single or partial exercise thereof preclude any further
exercise thereof, nor the exercise of any other right, power or privilege. The
rights of Bank hereunder are cumulative and are not exclusive of any rights or
remedies which Bank would otherwise have except as modified herein. No
amendment, modification, supplement, termination, consent or waiver of or to any
provision of this Agreement, the Revolving Note and any documents executed in
connection therewith, nor any consent to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by or on
behalf of Bank.
11. WAIVERS VOLUNTARY. The releases and waivers contained in this
Agreement are freely, knowingly and voluntarily given by each party, without any
duress or coercion, after each party has had opportunity to consult with counsel
and has carefully and completely read all of the terms and provisions of this
Agreement.
12. GOVERNING LAW AND VENUE. This Agreement is made in the State of
Ohio and the validity of this Agreement, any documents incorporated herein or
executed in connection herewith, and (notwithstanding anything to the contrary
therein) the Revolving Note and all documents executed in connection therewith,
and the construction, interpretation, and enforcement thereof, and the rights of
the parties thereto shall be determined under, governed by, and construed in
accordance with the internal laws of the State of Ohio, without regard to
principles of conflicts of law. The parties agree that all actions or
proceedings arising in connection with this Agreement, any documents
incorporated herein or executed in connection herewith, the Revolving Note and
any and all other documents executed in connection therewith, shall be tried and
litigated only in the Federal District Court for the Southern District of Ohio
or the state courts of Franklin County. The parties hereto waive any right each
may have to assert the doctrine of forum NON CONVENIENS or to object to venue to
the extent any proceeding is brought in accordance with this Section. Service of
process, sufficient for personal jurisdiction in any action against Borrower,
may be made by registered or certified mail, return receipt requested, to its
addresses set forth in the Loan Agreement.
13. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties on separate counterparts, each
of which counterpart, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one
and the same agreement. This Agreement shall become effective upon the execution
of a counterpart hereof by each of the parties hereto.
14. SEVERABILITY. Should any part, term or provision of this Agreement
be by the courts determined to be illegal, unenforceable or in conflict with any
law of the State of Ohio, federal law or any other applicable law, the validity
and enforceability of the remaining portions or provisions of this Agreement
shall not be affected thereby.
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15. FURTHER ASSURANCE. Borrower agrees to execute such other and
further documents and instruments as Bank may request to implement the
provisions of this Agreement.
16. INTEGRATION. This Agreement is intended by the parties as the final
expression of their agreement and therefor incorporates all negotiations of the
parties hereto and is the entire agreement of the parties hereto. No party shall
be bound by anything not expressed in writing. The Loan Agreement, as amended
herein or in the Amendments, supersedes all prior agreements entered into by the
parties except as set forth herein or in the Amendments. Borrower acknowledges
that it is relying on no written or oral agreement, representation, warranty, or
understanding of any kind made by Bank or any employee or agent of Bank except
for the agreements by Bank set forth herein, in the Amendments, in the Revolving
Note and any and all other documents executed in connection therewith. Except as
expressly set forth in this Agreement or the Amendments, the Revolving Note and
all other documents executed in connection therewith remain unchanged and in
full force and effect.
This Agreement shall be construed without regard to any presumption or
rule requiring that it be construed against the party causing this Agreement or
any part hereof to be drafted.
17. REVERSAL OF PAYMENTS. If Bank receives any payments which are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be paid to a trustee, debtor-in-possession, receiver or any
other party under any Bankruptcy law, common law, equitable cause or otherwise,
then, to such extent, the obligations or part thereof intended to be satisfied
by such payments shall be reversed and continue as if such payments had not been
received by Bank.
18. WAIVER OF A JURY TRIAL. BANK AND BORROWER ACKNOWLEDGE AND AGREE
THAT THERE MAY BE A CONSTITUTIONAL RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY
CLAIM, DISPUTE OR LAWSUIT ARISING BETWEEN OR AMONG THEM, BUT THAT SUCH RIGHT MAY
BE WAIVED. ACCORDINGLY, THE PARTIES AGREE THAT NOTWITHSTANDING SUCH
CONSTITUTIONAL RIGHT, IN THIS COMMERCIAL MATTER THE PARTIES BELIEVE AND AGREE
THAT IT SHALL BE IN THEIR BEST INTEREST TO WAIVE SUCH RIGHT, AND, ACCORDINGLY,
HEREBY WAIVE SUCH RIGHT TO A JURY TRIAL, AND FURTHER AGREE THAT THE BEST FORUM
FOR HEARING ANY CLAIM, DISPUTE OR LAWSUIT, IF ANY, ARISING IN CONNECTION WITH
THIS AGREEMENT, THE REVOLVING NOTE AND ALL DOCUMENTS EXECUTED IN CONNECTION
THEREWITH OR THE RELATIONSHIP AMONG BORROWER AND BANK SHALL BE A COURT OF
COMPETENT JURISDICTION SITTING WITHOUT A JURY.
19. WARRANT OF ATTORNEY. Borrower authorizes any attorney at law to
appear in any Court of Record in the State of Ohio or in any other state or
territory of the United States of America after the above indebtedness becomes
due, whether by acceleration or otherwise, to waive the issuing and service of
process, and to confess judgment against Borrower in favor of the Bank for the
amount then appearing due together with costs of suit, and thereupon to waive
all errors and all rights of appeal and stays of execution.
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IN WITNESS WHEREOF, Borrower and Bank have executed this Agreement as
of the date set forth above.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
XXXXXX INCORPORATED
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Its: President
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THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Its: Vice President
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ACKNOWLEDGMENT AND CONSENT OF GUARANTOR
The undersigned Guarantor acknowledges and consents to the foregoing
amendments and modifications as set forth above, and hereby acknowledges the
validity, existence and continuance of the undersigned's Continuing Guaranty
Unlimited dated February 28, 1997.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
SUPREME ELECTRONICS CORP.
Signed in the presence of
/s/ Xxxxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxxxxx Xxxxxx
------------------------ Name Xxxxxx X. Xxxxxx
/s/ X. Xxxxxxxxxx -------------------------------
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Name: X. Xxxxxxxxxx Its: Chairman
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