BB&T
Loan Agreement
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Account Number
This Loan Agreement (the "Agreement") is made this 20th day of August, 1999 by
and between BRANCH BANKING AND TRUST COMPANY, a North Carolina banking
corporation ("Bank"), and:
Datametrics Corporation, a Delaware corporation ("Borrower"), having executive
offices at Florham, New Jersey.
The Borrower has applied to Bank for and the Bank has agreed to make, subject to
the terms of this Agreement, the following loan(s):
LINE OF CREDIT ("Line of Credit") in the maximum principal amount not to exceed
$1,500,000 at any one time outstanding for the purpose of for the temporary
expansion of current assets and to repay approximately $750,000 of 1996 Sub Debt
which shall be evidenced by the Borrower's Promissory Note(s) dated on or after
the date hereof which shall mature September 25, 2000, when the entire unpaid
principal balance then outstanding plus accrued interest thereon shall be paid
in full. Prior to maturity or the occurrence of any Event of Default hereunder
and subject to any Borrowing Base limitations, the Borrower may borrow, repay,
and reborrow hereunder through maturity. Line of Credit shall bear interest at
the rate set forth in any such note evidencing all or any portion of the Line of
Credit, the terms of which are incorporated herein by reference, and shall be
secured by .
SECTION 1 CONDITIONS PRECEDENT
The Bank shall not be obligated to make any disbursement until all of the
following conditions have been satisfied by proper evidence, execution, and/or
delivery to the Bank of the following items in addition to this Agreement, all
in form and substance satisfactory to the Bank and the Bank's counsel in their
sole discretion:
NOTE(S): The Note(s) evidencing the above referenced loans duly executed by the
Borrower.
SECURITY AGREEMENT: A Security Agreement in which Borrower shall grant to Bank a
first and prior security interest in the Borrower's or other owner's
specified personal property. (If Bank will be a junior lienholder on any
personal property, Borrower must fully disclose to Bank any and all prior
security interests, and Bank must specifically approve its junior lien
position.)
UCC FINANCING STATEMENTS: Acknowledged copies of UCC Financing Statements
(UCC-1) duly filed in all jurisdictions necessary, or in the opinion of the
Bank desirable, to perfect the security interests granted in the Security
Agreement, and certified copies of Requests For Information (UCC-11)
identifying all previous financing statements on record for the Borrower
from all jurisdictions indicating that no security interest has previously
been granted in any of the collateral described in the Security Agreement,
unless prior approval has been given by the Bank.
COMMITMENT FEE: A commitment fee (or balance thereof) of $7,500.00 payable to
the Bank on the date of execution of the Loan Documents, unless a schedule
follows:
CORPORATE RESOLUTION: A Corporate Resolution duly adopted by the Board of
Directors of the Borrower authorizing the execution, delivery, and
performance of the Loan Documents on or in a form provided by or acceptable
to Bank.
ARTICLES OF INCORPORATION: A copy of the Articles of Incorporation and all other
charter documents of the Borrower, all filed with and certified by the
Secretary of State of the State of the Borrower's incorporation.
BY-LAWS: A copy of the By-Laws of the Borrower, certified by the Secretary of
the Borrower as to their completeness and
accuracy.
CERTIFICATE OF INCUMBENCY: A certificate of the Secretary of the Borrower
certifying the names and true signatures of the officers of the Borrower
authorized to sign the Loan Documents.
CERTIFICATE OF EXISTENCE: A certification of the Secretary of State of the State
of the Borrower's Incorporation or Organization as to the existence or good
standing of the Borrower and its charter documents on file.
OPINION OF COUNSEL: An opinion of counsel for the Borrower satisfactory to the
Bank's counsel, that:
i) The representations and warranties of the Borrower in Section 2
of the Agreement are true and correct in all material respects.
ii) The Loan Documents have been duly executed and delivered by the
Borrower and Guarantor(s), and constitute the legal, valid, and
binding obligations of the Borrower and Guarantor(s),
enforceable against them in accordance with their respective
terms.
iii) No registration with, consent of, approval of, or other action
is required by any Federal, State, or other governmental
authority or regulatory body for the execution and delivery of
the Loan Documents or, if so required, such registration has
been made, and consent or approval given or such other
appropriate action taken.
iv) The loan transactions entered into pursuant to this Agreement are
not usurious.
v) The Bank has a perfected security interest and/or lien in the
collateral described in the Security Agreement and/or Deed of
Trust.
Additional Documents: Receipt by the Bank of other approvals, opinions, or
documents as the Bank may reasonably request.
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Loan Agreement
STANDBY LETTER(S) OF CREDIT: The Bank shall be in receipt of Standby Letter(s)
of Credit in the amount of One Million Five Hundred Thousand and 00/100
dollars ($1,500,000), which shall expire no sooner than 30 days after the
maturity of the line of credit.
LIMITED RECOURSE GUARANTY: Receipt by the Bank of Limted Recourse Guaranty of
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SECTION 2 REPRESENTATIONS AND WARRANTIES
The Borrower and Guarantor(s) represent and warrant to Bank that:
2.01. FINANCIAL STATEMENTS. The balance sheet of the Borrower and its
subsidiaries and the related Statements of Income and Retained Earnings of
the Borrower and its subsidiaries, the accompanying footnotes together with
the accountant's opinion thereon, and all other financial information
previously furnished to the Bank, are true and correct and fairly reflect
the financial condition of the Borrower and its subsidiaries as of the
dates thereof, including all contingent liabilities of every type, and the
financial condition of the Borrower and its subsidiaries as stated therein
has not changed materially and adversely since the date thereof. Each
Guarantor also makes the same representations and warranties as the
Borrower concerning its financial statements and condition.
2.02. CAPACITY AND STANDING. If the Borrower and/or any Guarantor is a
corporation, limited liability company, or limited liability partnership,
each warrants and represents that it is duly organized and validly existing
under the laws of its respective state of incorporation or organization, it
and its subsidiaries are duly qualified and in good standing in every other
state in which the nature of their business shall require such
qualification, and are each duly authorized by their board of directors,
managers or partners respectively to enter into and perform the obligations
under the Loan Documents.
2.03. NO VIOLATION OF OTHER AGREEMENTS. The execution of any of the Loan
Documents, and the performance by the Borrower, the Pledgor or the
Guarantors thereunder will not violate any provision of its articles of
incorporation or by-laws, articles of organization or operating agreement,
or agreement of partnership or limited partnership, as applicable or of any
law, other agreement, indenture, note, or other instrument binding upon the
Borrower or Guarantor, or give cause for the acceleration of any of the
respective obligations of the Borrower or Guarantor.
2.04. AUTHORITY. All authority from and approval by any federal, state, or
local governmental body, commission, or agency, necessary to the making,
validity, or enforceability of this Agreement or the other Loan Documents
has been obtained.
2.05. ASSET OWNERSHIP. The Borrower and each Guarantors have good and
marketable title to all of the properties and assets reflected on the
balance sheets and financial statements furnished to the Bank, and all such
properties and assets are free and clear of mortgages, deeds of trust,
pledges, liens, and all other encumbrances except as otherwise disclosed by
such financial statements.
2.06. DISCHARGE OF LIENS AND TAXES. The Borrower, its subsidiaries, and
each Guarantors have filed, paid, and/or discharged all taxes or other
claims which may become a lien on any of their respective properties or
assets, excepting to the extent that such items are being appropriately
contested in good faith and for which an adequate reserve for the payment
thereof is being maintained.
2.07. REGULATION U. None of the proceeds of the loan(s) made pursuant to
this Agreement shall be used directly or indirectly for the purpose of
purchasing or carrying any margin stock in violation of any of the
provisions of Regulation U of the Board of Governors of the Federal Reserve
System.
2.08. ERISA. Each employee benefit plan, as defined by the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), maintained by
the Borrower or by any subsidiary of the Borrower or Guarantor(s) meets, as
of the date hereof, the minimum funding standards of Section 302 of ERISA,
all applicable requirements of ERISA and of the Internal Revenue Code of
1986, as amended, and no "Reportable Event" nor "Prohibited Transaction"
(as defined by ERISA) has occurred with respect to any such plan.
2.09. LITIGATION. There is no pending or threatened action or proceeding
against or affecting the Borrower, any of its subsidiaries, except for
legal matters disclosed in the company's financial statements, or the
Guarantor(s) before any court, commission, governmental agency, whether
State or Federal, or arbitration which may materially adversely affect the
financial condition, operations, properties, or business of the Borrower,
any such subsidiary, or the Guarantor(s), or the ability of the Borrower or
the Guarantor(s) to perform their obligations under the Loan Documents.
2.10. BINDING AND ENFORCEABLE. The Loan Documents, when executed, shall
constitute valid and binding obligations of the Borrower and Guarantors
respectively and are enforceable in accordance with their terms, except as
may be limited by bankruptcy, insolvency, moratorium, or similar laws
affecting creditors' rights generally.
SECTION 3 AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that from the date hereof and until payment in
full of all indebtedness and performance of all obligations under the Loan
Documents, it will:
3.01. MAINTAIN EXISTENCE. Preserve and maintain its existence and good
standing in the state of its organization, and qualify and remain qualified
as a foreign corporation, limited partnership, LLC, or LLP in each
jurisdiction in which such qualification is required.
3.02. MAINTAIN RECORDS. Keep adequate records and books of account, in
which complete entries will be made in accordance with generally accepted
accounting principles consistently applied, reflecting all financial
transactions of the Borrower.
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3.03. MAINTAIN PROPERTIES. Maintain, keep, and preserve all of its
properties (tangible and intangible) necessary or useful in the conduct of
its business in good working order and condition, ordinary wear and tear
excepted.
3.04. CONDUCT OF BUSINESS. Continue to engage in an efficient, prudent, and
economical manner in a business of the same general type as now conducted.
3.05. MAINTAIN INSURANCE. Maintain insurance 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 business interruption insurance if required by Bank,
which insurance may provide for reasonable deductible. The Bank shall be
named as loss payee (Long Form) on all policies which apply to the Bank's
collateral, and the Borrower shall deliver certificates of insurance at
closing evidencing same. All such insurance policies shall provide, and the
certificates shall state, that no policy will be terminated without 20 days
prior written notice to Bank.
3.06. Comply With Laws. Comply in all respects with all applicable laws,
rules, regulations, and orders including, without limitation, paying before
the delinquency of all taxes, assessments, and governmental charges imposed
upon it or upon its property, and all Environmental Laws.
3.07. Right of Inspection. Permit the officers and authorized agents of the
Bank, at any reasonable time in the Bank's sole discretion, to examine and
make copies of the records and books of account of, to visit the properties
of the Borrower, and to discuss such matters with any officers, directors,
and the Borrower's independent accountant as the Bank deems necessary.
3.08. REPORTING REQUIREMENTS. Furnish to the Bank:
MONTHLY FINANCIAL STATEMENTS: As soon as available and not more than
twenty (20) days after the end of each month, balance sheets,
statements of income, cash flow, and retained earnings for the period
ended and a statement of changes in the financial position, all in
reasonable detail, and all prepared in accordance with GAAP
consistently applied and certified as true and correct by an officer,
general partner or manager of the Borrower.
ANNUAL FINANCIAL STATEMENTS: As soon as available and not more than
ninety (90) days after the end of each fiscal year, balance sheets,
statements of income, and retained earnings for the period ended and a
statement of changes in the financial position, all in reasonable
detail, and all prepared in accordance with GAAP consistently applied.
The financial statements must be of the following quality or better:
Audited.
NOTICE OF LITIGATION: Promptly after the receipt by the Borrower of
notice or complaint of any action, suit, and proceeding before any
court or governmental agency of any type which, if determined
adversely, could have a material adverse effect on the financial
condition, properties, or operations of the Borrower.
TAX RETURNS: As soon as available each year, complete copies
(including all schedules) of all state and federal tax returns filed
by Borrower.
OTHER INFORMATION: Such other information as the Bank may from time to
time reasonably request.
3.09. DEPOSIT ACCOUNTS. Maintain substantially all of its demand deposit/
operating accounts with the Bank.
SECTION 4 FINANCIAL COVENANTS
The Borrower covenants and agrees that from the date hereof until payment in
full of all indebtedness and the performance of all obligations under the Loan
Documents, the Borrower shall at all times maintain the following financial
covenants and ratios all in accordance with GAAP unless otherwise specified:
TANGIBLE NET WORTH. A minimum tangible net worth of not less than
$3,000,000. Tangible Net Worth is defined as net worth, plus obligations
contractually subordinated to debts owed to Bank, minus goodwill,
contract rights, and assets representing claims on stockholders or
affiliated entities.
DEBT TO WORTH. A ratio of total liabilities to tangible net worth of not
greater than 2.5 to 1.0.
SHAREHOLDER DEBT: All shareholder debt shall be and shall remain at all
times subordinate to debts owed to Bank.
SECTION 5 HAZARDOUS MATERIALS AND ENVIRONMENTAL COMPLIANCE
5.01. Investigation. Borrower hereby certifies that it has exercised due
diligence to ascertain whether its real property, including without
limitation the Mortgaged Property, is or has been affected by the presence
of asbestos, oil, petroleum or other hydrocarbons, urea formaldehyde, PCBs,
hazardous or nuclear waste, toxic chemicals and substances, or other
hazardous materials (collectively, "Hazardous Materials"), as defined in
applicable Environmental Laws. Borrower represents and warrants that there
are no such Hazardous Materials contaminating its real property, nor have
any such materials been released on or stored on or improperly disposed of
on its real property during its ownership, occupancy or operation thereof.
Borrower hereby agrees that it shall not knowingly permit any release,
storage or contamination as long as any indebtedness or obligations to Bank
under the Loan Documents remains unpaid or unfulfilled. In addition,
Borrower does not have or use any underground storage tanks on its property
which are not registered with the appropriate Federal and/or State agencies
and which are not properly equipped and maintained in accordance with all
Environmental Laws. If requested by Bank, Borrower shall provide Bank with
all necessary and reasonable assistance required
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for purposes of determining the existence of Hazardous Materials on the
Mortgaged Property, including allowing Bank access to the Mortgaged
Property, and access to Borrower's employees having knowledge of, and to
files and records within Borrower's control relating to the existence,
storage, or release of Hazardous Materials on the Mortgaged Property.
5.02. COMPLIANCE. Borrower agrees to comply with all applicable
Environmental Laws, rules and regulations, including, without limitation,
all those relating to Hazardous Materials. Borrower further agrees to
provide Bank, and all appropriate Federal and State authorities, with
immediate notice in writing of any release of Hazardous Materials on the
Mortgaged Property and to pursue diligently to completion all appropriate
and/or required remedial action in the event of such release.
5.03. REMEDIAL ACTION. Bank shall have the right, but not the obligation,
to undertake all or any part of such remedial action in the event of a
release of Hazardous Materials on the Mortgaged Property and to add any
expenditures so made to the principal indebtedness secured by the Deed(s)
of Trust. Borrower agrees to indemnify and hold Bank harmless from any and
all loss or liability arising out of any violation of the representations,
covenants, and obligations contained in this Section 6, or resulting from
the recording of the Deed(s) of Trust.
SECTION 6 EVENTS OF DEFAULT
The following shall be Events of Default by Borrower or any Guarantor:
6.01. The failure to make prompt payment of any installment of principal or
interest on the Note(s) when due or payable.
6.02. Any representation or warranty made in the Loan Documents which shall
prove to be false or misleading in any material respect.
6.03. Any report, certificate, financial statement, or other document
furnished prior to the execution of or pursuant to the terms of this
Agreement shall prove to be false or misleading in any material respect.
6.04. The Borrower or any Guarantor shall default on the performance of any
other obligation of indebtedness when due or in the performance of any
obligation incurred in connection with money borrowed.
6.05. The breach of any covenant, condition, or agreement made by the
Borrower or any Guarantor under the Loan Documents.
6.06. If a custodian shall be appointed for or take possession of any or
all of the assets of the Borrower or any Guarantor, or should the Borrower
or any Guarantor either voluntarily or involuntarily become subject to any
insolvency proceeding, any proceeding to dissolve the Borrower or any
Guarantor, any proceeding to have a receiver appointed, or should the
Borrower or any Guarantor make an assignment for the benefit of creditors,
or should there be an attachment, execution, or other judicial seizure of
all or any portion of the Borrower's or any Guarantor's assets, including
an action or proceeding to seize any funds on deposit with the Bank, and
such seizure is not discharged within 30 days.
6.07. Final judgment for the payment of money shall be rendered against the
Borrower or any Guarantor which is not covered by insurance and shall
remain undischarged for a period of 30 days unless such judgment or
execution thereon be effectively stayed.
6.08. Upon the death of a Borrower who is an individual, or upon the
dissolution or termination of the existence of either the Borrower or any
Guarantor.
6.09. The Borrower or any Guarantor shall become a Debtor (as such term is
defined in the U.S. Bankruptcy Code), whether voluntarily or involuntarily.
6.10. Should the Bank in good ▇▇▇▇▇ ▇▇▇▇ itself, its liens and security
interests, if any, or any debt thereunder unsafe or insecure, or should the
Bank believe in good faith that the prospect of payment of any debt or
other performance by the Borrower or any Guarantor is impaired.
6.11. Should any lien or security interest granted to Bank to secure
payment of the Note(s) terminate, fail for any reason to have the priority
believed by Bank on the date granted, or become unperfected or invalid for
any reason.
6.12. If any Guaranty given in connection with the Loan is terminated by,
or upon the death of, any Guarantor.
6.13. Should the Borrower, any Guarantor or any Pledgor contest the
validity, legality or enforceability of any Loan Document to which it is a
party.
SECTION 7 REMEDIES UPON DEFAULT
Upon the occurrence of any of the above listed Events of Default, the Bank may
at any time thereafter, at its option, take any or all of the following actions,
at the same or at different times:
7.01. Declare the balance of the Note(s) to be immediately due and payable,
both as to principal and interest, without presentment, demand, protest, or
notice of any kind, all of which are hereby expressly waived by Borrower,
each Guarantor, and Pledgor, such balance shall accrue interest at the
Default Rate;
7.02. Require the Borrower or Guarantor(s) to pledge additional collateral
to the Bank from the Borrower's or Guarantor's assets and properties, the
acceptability and sufficiency of such collateral to be determined in the
Bank's sole discretion;
7.03. Take immediate possession of and foreclose upon any or all collateral
which may be granted to the Bank as security for the indebtedness and
obligations of Borrower or any Guarantor under the Loan Documents;
7.04. Exercise other rights and remedies as the Bank may be provided in the
Loan Documents, as a secured party under the Maryland Uniform Commercial
Code, and as provided by law;
7.05. Any obligation of the Bank to advance funds under the Note(s) and all
other obligations, if any, of the Bank under the Loan Documents shall
immediately cease and terminate unless and until Bank shall reinstate in
writing.
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SECTION 8 MISCELLANEOUS PROVISIONS
8.01. DEFINITIONS.
"DEFAULT RATE" shall mean a rate of interest equal to Bank's Prime Rate
plus five percent (5%) per annum (not to exceed the legal maximum rate)
from and after the date of an Event of Default hereunder which shall apply,
in the Bank's sole discretion, to all sums owing, including principal and
interest, on such date.
"ENVIRONMENTAL LAWS" shall mean all federal and state laws and
regulations which affect or may affect the Mortgaged Property, including
without limitation the Comprehensive Environmental Response, Compensation,
and Liability Act (42 U.S.C. Sections 9601 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. Sections 6901 et seq.), the
Federal Water Pollution Control Act (33 U.S.C. Sections 1251 et seq.), the
Clean Air Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances
Control Act (15 U.S.C. Section 2601 et seq.), as such laws or regulations
have been amended or may be amended.
"LOAN DOCUMENTS" shall mean this Agreement, the Note(s), the Deed(s) of
Trust, the Security Agreement(s), Assignment(s) of Leases and Rents, all
UCC-1 Financing Statements, the Guaranty Agreement(s), and all other
documents, certificates, and instruments executed in connection therewith,
and all renewals, extensions, modifications, substitutions, and
replacements thereto and therefore.
"PERSON" shall mean an individual, partnership, corporation, trust,
unincorporated organization, limited liability company, limited liability
partnership, association, joint venture, or a government agency or
political subdivision thereof.
"GAAP" shall mean generally accepted accounting principles as
established by the Financial Accounting Standards Board or the American
Institute of Certified Public Accountants, as amended and supplemented from
time to time.
"PRIME RATE" shall mean the rate of interest per annum
announced by the Bank from time to time and adopted as its Prime Rate,
which is one of several rate indexes employed by the Bank when extending
credit, and may not necessarily be the Bank's lowest lending rate.
8.02. NON-IMPAIRMENT. If any one or more provisions contained in the Loan
Documents shall be held invalid, illegal, or unenforceable in any respect,
the validity, legality, and enforceability of the remaining provisions
contained therein shall not in any way be affected or impaired thereby and
shall otherwise remain in full force and effect.
8.03. APPLICABLE LAW. The Loan Documents shall be construed in accordance
with and governed by the laws of the state of Maryland.
8.04. WAIVER. Neither the failure or any delay on the part of the Bank in
exercising any right, power or privilege granted in the Loan Documents
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise of any other right, power,
or privilege which may be provided by law.
8.05. MODIFICATION. No modification, amendment, or waiver of any provision
of any of the Loan Documents shall be effective unless in writing and
signed by the Borrower and Bank.
8.06. PAYMENT AMOUNT ADJUSTMENT. In the event that any Loan(s) referenced
herein has a variable (floating) interest rate and the interest rate
increases, Bank, at its sole discretion, may at any time adjust the
Borrower's payment amount(s) to prevent the amount of interest accrued in a
given period to exceed the periodic payment amount or to cause the Loan(s)
to be repaid within the same period of time as originally agreed upon.
8.07. STAMPS AND FEES. The Borrower shall pay all federal or state stamps,
taxes, or other fees or charges, if any are payable or are determined to be
payable by reason of the execution, delivery, or issuance of the Loan
Documents or any security granted to the Bank; and the Borrower and
Guarantor agree to indemnify and hold harmless the Bank against any and all
liability in respect thereof.
8.08. ATTORNEYS FEES. In the event the Borrower or Guarantor shall default
in any of its obligations hereunder and the Bank believes it necessary to
employ an attorney to assist in the enforcement or collection of the
indebtedness of the Borrower to the Bank, to enforce the terms and
provisions of the Loan Documents to modify the Loan Documents, or in the
event the Bank voluntarily or otherwise should become a party to any suit
or legal proceeding (including a proceeding conducted under the Bankruptcy
Code), the Borrower and Guarantors agree to pay the reasonable attorney's
fees of the Bank and all related costs of collection or enforcement that
may be incurred by the Bank. The Borrower and Guarantor shall be liable for
such attorney's fees and costs whether or not any suit or proceeding
commences.
8.09. BANK MAKING REQUIRED PAYMENTS. In the event Borrower shall fail to
maintain insurance, pay taxes or assessments, costs and expenses which
Borrower is, under any of the terms hereof or of any Loan Documents,
required to pay, or fail to keep any of the properties and assets
constituting collateral free from new security interests, liens, or
encumbrances, except as permitted herein, Bank may at its election make
expenditures for any or all such purposes and the amounts expended together
with interest thereon at the Default Rate, shall become immediately due and
payable to Bank, and shall have benefit of and be secured by the collateral
The Bank shall be under no duty or obligation whatever with respect to any
of the foregoing expenditures.
8.10. RIGHT OF OFFSET. Any indebtedness owing from Bank to Borrower may be
set off and applied by Bank on any indebtedness or liability of Borrower to
Bank, at any time and from time to time after maturity, whether by
acceleration or otherwise, and without demand or notice to Borrower. Bank
may sell participations in or make assignments of any loans made under this
Agreement, and Borrower agrees that any such participant or assignee shall
have the same right of setoff as is granted to the Bank herein.
8.11. MODIFICATION AND RENEWAL FEES. Bank may, at its option, charge any
fees for modification, renewal, extension, or amendment of any terms of the
Note(s) permitted by applicable law and the Loan Documents.
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8.12. CONFLICTING PROVISIONS. If provisions of this Agreement shall
conflict with any terms or provisions of the Note(s), the provisions of the
Note(s) shall take priority over any provisions in the Agreement.
8.13. NOTICES. Any notice permitted or required by the provisions of this
Agreement shall be deemed to have been given when delivered in writing to
the City Executive or any Vice President of the Bank at its offices in
Hyattsville, Maryland, and to the Chief Executive Officer of the Borrower
at its offices in Florham, New Jersey when sent by certified mail and
return receipt requested.
8.14. CONSENT TO JURISDICTION. Borrower hereby irrevocably agrees that any
legal action or proceeding arising out of or relating to this Agreement may
be instituted in any Maryland state court or federal court sitting in the
state of Maryland, or in such other court and venue as Bank may choose as
its sole discretion. Borrower consents to the jurisdiction of such courts
and waives any objection relating to the basis for personal or in rem
jurisdiction or to venue which Borrower may now or hereafter have in any
such legal action or proceedings.
8.15. COUNTERPARTS. This Agreement may be executed by one or more parties
on any number of separate counterparts and all of such counterparts taken
together shall be deemed to constitute one and the same instrument.
8.16. ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
between Borrower and Bank with respect to the Loans, and there are no oral
or parol agreements existing between Bank and Borrower with respect to the
Loans which are not expressly set forth in the Loan Documents.
[Signatures on Following Page]
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Signature Page
IN WITNESS WHEREOF, the Borrower and Guarantor have caused this Agreement to be
duly executed all as of the date first above written.
BORROWER IS A CORPORATION:
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Name of Corporation
Attest: By:
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Title: Title:
---------------------- ---------------------------------------
By:
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(Corporate Seal)
Title:
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ADDITIONAL CO-MAKERS OR GUARANTORS:
WITNESS:
(SEAL)
--------------------------------- -----------------------------------
(SEAL)
--------------------------------- -----------------------------------
(SEAL)
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(SEAL)
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Branch Banking and Trust Company
Attest: By:
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(Corporate Seal) Title:
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Addendum to Loan Agreement
THIS ADDENDUM amends and supplements the Loan Agreement dated , between
("Borrower"), BRANCH BANKING AND TRUST COMPANY ("Bank"), and certain Guarantors.
ADDITIONAL REPRESENTATIONS AND WARRANTIES - Year 2000 Ready:
Borrower represents and warrants to Bank that it has begun to evaluate
and to take all necessary and appropriate steps to insure that its computer
operating systems' hardware and software for information processing,
manufacturing, communications, building(s) and plant facilities, support
services, and other applications (collectively "Systems") will be Year 2000
Ready on or prior to December 31, 1999. "Year 2000 Ready" means that all Systems
shall (i) accept input and provide output of data involving dates or portions
thereof correctly and without ambiguity as to the twentieth (20th) or
twenty-first (21st) centuries; (ii) manage, store, manipulate, sort, sequence,
and perform calculations (collectively "process") all data involving dates or
portions thereof before, during and after January 1, 2000, without malfunction,
amends or aborts; and (iii) correctly process leap years (including the year
2000).
ADDITIONAL COVENANTS
1. If requested by Bank, Borrower will assist in accurately completing
the BB&T Year 2000 Client Questionnaire.
2. Borrower shall promptly report to Bank any likelihood or
circumstances which may render Borrower unable to make its Systems Year 2000
Ready by December 31, 1999, and if requested by Bank, Borrower shall furnish
periodic progress reports on its progress in becoming Year 2000 Ready.
3. If Borrower determines at anytime that it may not be Year 2000 Ready
by December 31, 1999, or if the Bank believes that the Borrower will not be Year
2000 Ready by December 31, 1999, Bank may, at its sole discretion (i) conduct an
audit of Borrower to determine its Year 2000 Readiness, or (ii) require Borrower
to have a Year 2000 Ready audit conducted by an independent firm or consultant
satisfactory to Bank at Borrower's expense.
EVENT OF DEFAULT
Borrower shall be in default under this Loan Agreement should (i) it
determine that it cannot be Year 2000 Ready by December 31, 1999, or (ii) an
audit conducted by the Bank or by an independent firm or consultant reveals that
Borrower is not or cannot be Year 2000 Ready by December 31, 1999.
BORROWER IS A CORPORATION:
-----------------------------
Name of Corporation
Attest: By:
---------------------------- -----------------------------
Title: Title:
--------------------------- -----------------------------
By:
-----------------------------
(Corporate Seal)
Title:
-----------------------------
ADDITIONAL CO-MAKERS OR GUARANTORS:
WITNESS:
(SEAL)
------------------------------------- -----------------------------
(SEAL)
------------------------------------- -----------------------------
(SEAL)
------------------------------------- -----------------------------
(SEAL)
------------------------------------ -----------------------------
BRANCH BANKING AND TRUST COMPANY
Attest: By:
------------------------------ ----------------------------
(Corporate Seal) Title:
----------------------------