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Note and Security Agreement [LOGO OF MELLON PSFS APPEARS HERE]
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$ 1,400,000.00 May 24th, 1996
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For value received, and intending to be legally bound, Undersigned, as defined
below, promises to pay
Mellon Bank, N.A.
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("Bank") or its order at
Philadelphia, Pennsylvania
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the sum of
One Million, Four Hundred Thousand and
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--------------------------------------------------------------------------00/100
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Dollars ($ 1,400,000.00 ), or such lesser or greater principal amount as may be
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outstanding from time to time under a discretionary line of credit established
by Bank for the benefit of Undersigned, with interest on the outstanding balance
from the date of this Note and Security Agreement ("Note") at the rate(s)
("Contractual Rate(s)") specified herein.
See Supplement to Note and Security Agreement
Upon the occurrence of any Event of Default (as defined below), at Bank's
option, interest shall accrue at a rate equal to two percent (2%) per annum
above the Contractual Rate(s) specified until the earlier of (a) the date that
such Event of Default has been cured, (b) until and including the date of
maturity hereof, or (c) if this Note is payable on demand, until and including
the date for payment in full set forth in any such demand, whichever the case
may be.
After maturity, whether by acceleration or otherwise, or if this Note is payable
on demand, after the date for payment in full set forth in any such demand, at
Bank's option, interest shall accrue at a rate equal to 2 percent (2%) per annum
above the Contractual Rate(s) specified until all sums due hereunder are paid.
Interest shall continue to accrue after the entry of judgment by confession or
otherwise at a rate equal to 2 percent (2%) per annum above the Contractual
Rate(s) until all sums due hereunder and/or under the judgment are paid, unless
the Contractual Rate(s) is (are) altered by subsequent maturity. This is the
Note or one of the Notes referred to in that Loan Agreement dated
May 24th, 1996
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between Undersigned and Bank, as the same may be supplemented from time to time.
If any payment (including without limitation any regularly scheduled payment,
balloon payment and final payment) is not paid within 10 days after it is due,
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Undersigned will pay a late charge as specified below, regardless of whether the
payment due consists of principal and interest, principal only or interest only.
[XX] 4.0% of the unpaid portion of the payment due
[__] the greater of $ , or % of the unpaid portion of the payment
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due
[__] late payment charge does not apply
Such late charge shall be in addition to any increase made to the Contractual
Rates(s) applicable to the outstanding balance hereof as a result of maturity of
this Note or otherwise, as well as in addition to any other applicable fees,
charges and costs.
Undersigned shall have the right, at its option, to prepay this Note in whole at
any time or in part from time to time. Any such prepayment shall be applied
first to any accrued but unpaid interest, secondly to the prepayment charge, if
any, discussed below, and tasty to the unpaid installments of principal in the
reverse order of their scheduled maturities. In the event that any portion of
principal of this Note accruing interest at a fixed rate is prepaid for any
reason whatsoever, whether by declaration, acceleration, demand or otherwise and
whether or not an Event of Default has occurred, a prepayment charge shall be
due and payable by Undersigned to Bank, calculated as described in the
Prepayment Addendum, if any, which references this Note, from Undersigned to
Bank, incorporated herein by reference and made a part hereof. All such
prepayments shall be subject to all terms and conditions of any such Prepayment
Addendum.
So long as Bank is the holder hereof, Bank's books and records shall be
presumed, except in the case of manifest error, to accurately evidence at all
times all amounts outstanding under this Note and the date and amount of each
advance and payment made pursuant hereto.
The prompt and faithful performance of all of Undersigned's obligations
hereunder, including without limitation time of payment is of the essence of
this Note.
Certain terms used in this Note are defined in Section 14 below.
Page 1 of 6
1. Security Interest. Undersigned hereby grants to Bank a security interest
in the following property now owned or hereafter acquired by Undersigned:
[X] (a) all equipment, wherever located, including machinery, motor
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vehicles, furniture and fixtures;
[X] (b) all inventory (whether held for sale or lease or to be furnished
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under contracts of service), raw materials, work in process, and materials
used or consumed in the conduct of Undersigned's business, and all books,
records, invoices and other documents which describe or evidence the same;
[_] (c) all farm products;
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[X] (d) all accounts, contract rights, general intangibles, choses in
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action, instruments, chattel paper, documents (including all documents of
title and warehouse receipts) and all rights to the payment of money, however
evidenced or arising;
[_] (e) the securities described below, together with all cash, stock or
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other dividends or distributions paid upon or made in respect of such
securities in any form; all securities received in addition to or in exchange
for such securities; and all subscription rights incident to such securities;
and
[_] (f) Other;
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(g) In addition to the foregoing, Undersigned (1) grants to Bank a security
interest in all accessions, parts, accessories, attachments and appurtenances
in any way used with, attached or related to, or installed in, any equipment
or inventory constituting "Collateral" hereunder; (2) grants to Bank a
security interest in all substitutions for, renewals of, improvements,
replacements and additions to, and the products and proceeds (cash and non-
cash) of all property constituting "Collateral" hereunder and any insurance
policies relating thereto; (3) grants to Bank a security interest in, lien
upon, and right of setoff against, all deposit accounts, credits, securities,
moneys or other property of Undersigned which may at any time be in the
possession of, delivered to, or owed by Bank, including any proceeds or
returned or unearned premiums of insurance, and the proceeds (cash and non-
cash) of all the foregoing property; and (4) assigns to Bank all moneys which
may become payable on any policy of insurance required to be maintained under
this Note, including any returned or unearned premiums.
All such property subject to Bank's security interests described in this
Section 1 is referred to herein collectively as the "Collateral." With
respect to Section 4 hereunder, the term "Collateral" shall not include the
property described in subsections (g)(3) and (g)(4) of this Section 1.
All security interests in Collateral shall be deemed to arise and be
perfected under and governed by the Uniform Commercial Code, except to the
extent that such law does not apply to certain types of transactions or
Collateral, in which case applicable law shall govern.
2. Obligations Secured. The Collateral shall secure the following obligations
("Obligations") of Undersigned to Bank: (a) all amounts at any time owing or
payable under this Note; (b) all costs and expenses incurred by Bank in the
collection or enforcement of this Note or the protection of the Collateral;
(c) all future advances made by Bank for taxes, levies, insurance, and
repairs to or maintenance of the Collateral; and (d) any other indebtedness,
liability or obligation of Undersigned to Bank, past, present or future,
direct or indirect, absolute or contingent, individual, joint or several, now
due or to become due, whether as drawer, maker, endorser, guarantor, surety
or otherwise, except that none of the security interests created herein shall
secure any obligation incurred by Undersigned which is defined as "consumer
credit" by Federal Reserve Board Regulation Z, 12 C.F.R. (S)226.1 et seq.,
and is not exempted from the application of that Regulation.
3. Representations. Undersigned hereby makes the following representations
and warranties which shall be true and correct on the date of this Note and
shall continue to be true and correct at the time of the creation of any
Obligation secured hereby and until the Obligations secured hereby shall have
been paid in full: (a) Undersigned's residence and/or Chief Executive Office,
as the case may be, is as stated below or as otherwise stated in a subsequent
written notice delivered to Bank pursuant to the terms hereof; (b)
Undersigned has good and marketable title to the Collateral subject to no
security interest, lien or encumbrance, except as indicated to the contrary
to Bank in writing prior to the execution of this Note; and (c) if any of the
Undersigned is an individual, each such individual is at least 18 years of
age and under no legal disability or incapacity.
4. Covenants. Undersigned covenants and agrees that until the Obligations
secured hereunder have been paid in full, Undersigned shall: (a) use the
proceeds of the loan evidenced hereby only for the business purpose(s)
specified to the Bank at or prior to the execution hereof; (b) not permit use
of the Collateral for any illegal purposes; (c) promptly notify Bank in
writing of any change in its or their residence or Chief Executive Office;
(d) not permit removal of any of the Collateral from county to county or
state to state unless Bank has given written consent in advance and except
for inventory shipped to customer locations for evaluation purposes in the
ordinary course of business; (e) maintain at all times good and marketable
title to all Collateral, free and clear of any security interest, lien or
encumbrance (except as to which Bank may grant its prior written consent
pursuant to section 4(f) below), and defend such title against the claims and
demands of all persons; (f) not (1) affix the Collateral or permit the
Collateral to be affixed to real estate or to any other goods, (2) lease,
mortgage, pledge or encumber the Collateral, (3) permit the Collateral's
identity to be lost, (4) permit the Collateral to be levied upon or attached
under any legal process, (5) permit or cause any security interest or lien to
arise with respect
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to the Collateral (other than those created in this Note), or (6) except
Collateral customarily sold by Undersigned in the ordinary course of business
and so sold in such manner for full value, sell, consign, part with possession
of, or otherwise dispose of the Collateral or any rights therein, except as Bank
may grant its prior specific written consent with respect to acts or events
specified in subsections (1), (2), (5) or (6) hereof; (g) maintain the
Collateral in good condition and repair, excepting only reasonable wear and
tear; pay and discharge all taxes and other levies on the Collateral, as well as
the costs of repair and maintenance thereof; and furnish to Bank upon request
documentary proof of payment of such taxes, levies and costs; (h); (i) purchase
and maintain policies of insurance (including flood insurance) to protect the
Collateral or other property against such risks and casualties, and in such
amounts, as shall be required by Bank and/or applicable law, which policies
shall (1) be in form and substance satisfactory to Bank, (2) at Bank's option,
designate Bank as loss payee and/or as additional insured, and/or contain a
lender's loss payable endorsement, and (3) be (or certificates evidencing same
shall be) deposited with Bank; (j) provide, upon request, financial or other
information, documentation or certifications to Bank (including balance sheets
and income statements), all in form and content satisfactory to Bank; (k)
execute, upon demand by Bank, any financing statements or other documents which
Bank may deem necessary to perfect or maintain perfection of the security
interest(s) created in this Note and pay, upon demand by Bank, (1) all costs and
fees pertaining to the filing of any financing, continuation or termination
statements, mortgages, satisfaction pieces, judgments and any other type of
document which Bank deems necessary or desirable to be filed with regard to
security interests which secure the Obligations evidenced or secured hereby,
regardless of whether such security interests were granted by Undersigned, and
(2) all costs and expenses incurred by Bank in connection with any Collateral
securing this Note (including without limitation all advances made by Bank for
taxes, levies, insurance, repairs to or maintenance of the Collateral, appraisal
or valuation of the Collateral and determination and monitoring of flood hazard
status), regardless of whether such Collateral is owned by Undersigned; (1)
procure, and cause a statement of Bank's security interest to be noted on, any
certificate of title issued or required by law to be issued with respect to any
motor vehicle constituting part of the Collateral, and cause any such
certificate to be delivered to Bank within 10 days from the later of the date of
this Note or the date of the issuance of such certificate; (m) pay, upon demand,
all amounts incurred by Bank in connection with any action or proceeding taken
or commenced by Bank to enforce or collect this Note or protect, insure or
realize upon the Collateral, including attorney's fees equal to the lesser of
(a) 20% of the above sum and interest then due hereunder, or $500.00, whichever
is greater, or (b) the maximum amount permitted by law, and attorney's costs and
all costs of legal proceedings; and (n) immediately notify Bank if any of
Undersigned's accounts arise out of contracts with the United States or any
department, agency or instrumentality thereof, and execute any instruments and
take any steps required by Bank in order that all moneys due and to become due
under any such contracts shall be assigned to Bank and notice thereof given to
the United States under the Federal Assignment of Claims Act.
5. Environmental Representations, Warranties and Covenants. In addition to the
representations, warranties and covenants set forth in this Note, the Loan
Agreement (if any) and any other document executed and delivered in connection
with this Note and/or the Loan Agreement, Undersigned hereby represents,
warrants, covenants and agrees, on behalf of itself and each of its subsidiaries
and affiliates, if any, that: (a) each of them now has and will continue to have
all Environmental Permits (as hereinafter defined) necessary for the conduct of
each of their businesses and operations; (b) each of them conducts and will
continue to conduct each of their businesses and operations in material
compliance with all applicable Environmental Laws (as hereinafter defined) and
Environmental Permits; (c) there does not exist, nor will any of them permit to
exist, any event or condition that required or is likely to require any of them
under any Environmental Law to pay or expend funds by way of fines, judgments,
damages, cleanup, remediation or the like in an aggregate amount, the payment of
which could reasonably be expected to interfere substantially with normal
operations of Undersigned or materially adversely affect the financial condition
of Undersigned; (d) Undersigned shall notify Bank, in writing within five
(5) business days, upon becoming aware of any pending or threatened proceeding,
suit, investigation, allegation or inquiry regarding any alleged event or
condition that, if resolved unfavorably to Undersigned or any of Undersigned's
subsidiaries or affiliates, is likely to cause Undersigned or any of its
subsidiaries or affiliates under any Environmental Law to pay or expend funds by
way of fines, penalties, administrative actions, judgments, damages, cleaning,
remediation or the like, or cause Undersigned or any of its subsidiaries or
affiliates to pay or expend funds for any third party claims, proceedings,
actions or judgments for personal injury or property damage resulting from an
event or condition relating to Hazardous Substances (as hereinafter defined) or
from a release or threatened release of Hazardous Substances; and (e)
Undersigned shall provide at Undersigned's cost, upon request by Bank,
certifications, documentation, copies of pleadings and other information
regarding the above, all in form and content satisfactory to Bank.
6. Additional Representations. If the Collateral includes inventory and/or
accounts, the following shall be applicable: In addition to any representations
and warranties set forth elsewhere in this Note, Undersigned hereby makes the
following representations and warranties which shall be true and correct on the
date hereof and shall continue to be true and correct at the time of any
borrowing made hereunder and until the Obligations shall have been paid in
full: (a) each account: (1) represents an amount actually owing to Undersigned
by the account debtor (less discounts allowed for prompt payment); (2) is valid
and enforceable according to its terms without further performance of any kind;
(3) is not evidenced by any instrument or chattel paper unless the original of
such instrument or chattel paper has been deposited with Bank; and (4) is not
evidenced by any judgment unless such judgment has been assigned of record to
Bank; and (b) the locations of all of Undersigned's places of business are as
stated elsewhere in this Note, and the inventory and records of the accounts are
kept at the places indicted elsewhere in this Note.
7. Additional Covenants. If the Collateral includes inventory and/or accounts,
the following shall be applicable: In addition to the covenants set forth
elsewhere in this Note, Undersigned covenants and agrees that until the
Obligations shall have been paid in full Undersigned shall: (a) immediately
notify Bank in writing in the event that any of the following occurs: (1) any
account is or becomes entitled to or eligible for discount for prompt payment
except in the ordinary course of business (2) any account debtor has or may have
any defense to payment of, or right of setoff, counterclaim, or recoupment
against any account; (3) any account represents an amount which is disputed by
the account debtor or the payment of which is in any way contingent or
conditional; or (4) the desirability, usefulness, or marketability of any of the
inventory has been in any way materially reduced or materially impaired by
reason of physical deterioration, technical obsolescence, or otherwise; (b) keep
accurate and complete books and records in accordance with generally accepted
accounting principles and, at Undersigned's expense, promptly furnish Bank such
information and documents relating to the Collateral at such times and in such
form and detail as Bank may request, including without limitation: (1) copies of
invoices
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or other evidence of Undersigned's accounts and schedules showing the aging,
identification, reconciliation, and collection thereof; (2) evidence of shipment
and receipt of goods and the performance of services of obligations covered by
accounts; and (3) reports as to Undersigned's inventory and purchases, sales,
damage, or loss thereof; all of the foregoing to be certified by authorized
officers or other employees of Undersigned; (c) not change any location listed
elsewhere in this Note regarding places of business, inventory and records of
accounts without Bank's prior written consent; (d) at Undersigned's expense,
diligently collect the accounts on behalf of Bank until such time as Bank
exercises its right to directly collect the accounts, and upon notice from Bank,
deliver all proceeds of accounts to Bank forthwith upon receipt, in the
original form in which received; (e) immediately upon Bank's request, open a
cash collateral account ("Cash Collateral Account") at Bank and deposit therein
all cash proceeds of collections on the accounts; (f) immediately upon Bank's
request, give the Bank assignments, in form acceptable to Bank, of specific
accounts or groups of accounts and specific general intangibles, and immediately
repay the amount loaned against any account so assigned to the Bank if the
contract with the account debtor is breached, cancelled or terminated; (g)
immediately upon Bank's request, furnish Bank with all information received by
Undersigned regarding the financial condition of any account debtor, except to
the extent prohibited by law; (h) immediately deliver to Bank all instruments,
documents, or chattel paper representing any of the Collateral and immediately
assign of record to Bank any judgement representing any account constituting
Collateral; and (i) immediately upon Bank's request, ▇▇▇▇ its records evidencing
its accounts in a manner satisfactory to Bank so as to show which accounts have
been assigned to Bank.
8. Events of Default. The occurrence of any of the following shall constitute
an "Event of Default" hereunder: (a) default in payment or performance of any of
the Obligations evidenced or secured by this Note or any other evidence of
liability of Undersigned to Bank which remains uncared for longer than 10 days;
(b) the breach by any Obligor (defined as Undersigned and each surety or
guarantor of any of Undersigned's liabilities to Bank, as well as any person or
entity granting Bank a security interest in property to secure the Obligations
evidenced hereby) of any covenant contained in the Loan Agreement (if any), this
Note, or in any separate security guarantee or suretyship agreement between Bank
and any Obligor, the occurrence of any default hereunder or under the terms of
any such agreement, or the discovery by Bank of any false or misleading
representation made by any Obligor herein or in any such agreement or in any
other information submitted to Bank by any Obligor; (c) with respect to any
Obligor: (1) death or incapacity of any individual or general partner; or (2)
dissolution of any partnership of corporation; (d) any assignment for the
benefit of creditors by any Obligor; (e) insolvency of any Obligor; (f) the
filing or commencement of any petition, action, case or preceding, voluntary or
involuntary, under any state or federal law regarding bankruptcy, insolvency,
reorganization, receivership or dissolution, including the Bankruptcy Reform Act
of 1978, as amended, by or against any Obligor; (g) default under the terms of
any lease of or mortgage on the premises where any Collateral is located which
remains uncured for longer than 10 days; (h) garnishment, tax assessment,
attachment or taking by governmental authority or other creditor of any
Collateral or other property of any Obligor which is in Bank's possession or
which constitutes security for any Obligations evidenced or secured hereby; (i)
entry of judgement in an amount in excess of $100,000 against any Obligor in any
court of record; (j) the assessment in an amount in excess of $100,000 against
any Obligor by the Internal Revenue Service or any other federal, state or local
taxing authority of unpaid taxes, or the issuance of a levy or the entering of a
lien in connection therewith; (k) the maturity of any life insurance policy held
as collateral under this Note by reason of the death of the insured or
otherwise; (l) the revocation , termination, cancellation, denial of liability,
or the attempt of any of the foregoing, by any Obligor of any Obligation or
liability whatsoever of the Obligor to Bank, including without limitation any
security, guarantee or suretyship agreement; or (m) default by Undersigned in
the payment of any indebtedness of Undersigned or in the performance of any of
Undersigned's obligations which remains uncured for longer than 10 days (other
than indebtedness or obligations evidenced by this Note or any other evidence of
liability of Undersigned to Bank) and such default shall continue for more than
any applicable grace period.
9. Acceleration; Remedies. Upon either (i) the occurrence of any Event of
Default, or (ii) if this Note is payable on demand, such demand by Bank: (a) all
amounts due under this Note, including the unpaid balance of principal and
interest hereof, shall become immediately due and payable at the option of Bank,
without any demand or notice whatsoever; (b) Undersigned shall, upon demand by
Bank, assemble the Collateral and promptly make it available to Bank at any
place designated by Bank which is reasonably convenient to both parties; (c)
Bank may immediately and without demand exercise any of its rights and remedies
granted herein, under applicable law, or which it may otherwise have, against
the Undersigned, the Collateral, or otherwise and (d) Bank may, without notice
or process of any sort, peaceably enter any premises where any vehicle
constituting a part of the Collateral is located and take possession, retain and
dispose of such vehicle and all property located in or upon it. Bank shall have
no obligation to return any property not constituting Collateral found in any
such vehicle unless Bank actually receives Undersigned's written request
therefor specifically describing such property within 72 hours after
repossession thereof. Notwithstanding any provision to the contrary contained
herein, upon the occurrence of an Event of Default as described in Section 8(f)
hereof, all amounts due under this Note, including without limitation the
unpaid balance of principal and interest hereof, shall become immediately due
and payable, without any demand, notice, or further action by Bank whatsoever,
and an action therefor shall immediately occur.
10. Bank's Rights. Undersigned hereby authorizes Bank, and Bank shall have the
continuing right, at its sole option and discretion , to: (a) do anything which
Undersigned is required but fails to do hereunder, and in particular Bank may,
if Undersigned fails to do so, (1) insure or take any reasonable steps to
protect the Collateral, (2) pay all taxes, levies, expenses and costs arising
with respect to the Collateral, or (3) pay any premiums payable on any policy of
insurance required to be obtained or maintained hereunder; (b) direct any
insurer to make payment of any insurance proceeds, including any returned or
unearned premiums, directly to Bank, and apply such moneys to any Obligations or
other amounts evidenced or secured hereby in such order or fashion as Bank may
elect; (c) inspect the Collateral at any reasonable time; (d) pay any amounts
Bank elects to pay or advance hereunder on account of insurance, taxes or other
costs, fees or charges arising in connection with the Collateral, either
directly to the payee of such cost, fee or charge, directly to Undersigned, or
to such payee(s) and Undersigned jointly; (e) pay the proceeds of the loan
evidenced by this Note to any or all of the Undersigned individually or jointly,
or to such other persons as any of the Undersigned may direct; and (f) add any
amounts paid or incurred by Bank under Section 4(k), Section 4(m), Section 10(a)
or Section 10(d) to the principal amount of the indebtedness evidenced by this
Note.
In addition to all rights given to Bank by this Note, Bank shall have all the
rights and remedies of a secured party under any applicable law, including
without limitation, the Uniform Commercial Code.
11. Additional Rights of Bank. If the Collateral includes inventory and/or
accounts, the following shall be applicable: In addition to Bank's rights set
forth elsewhere in this Note, Undersigned hereby
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authorizes Bank, and Bank shall have the continuing rights at any time, whether
or not any Event of Default has occurred hereunder, and at its sole option and
discretion, without notice, to: (a) take over and collect any or all of the
accounts and to take any other action pursuant to its power of attorney granted
herein; (b) exercise absolute and exclusive dominion and control over all funds
deposited in the Cash Collateral Account; apply any funds therein against any
Obligations; and charge to any deposit account of Undersigned any item of
payment credited to the Cash Collateral Account which is subsequently
dishonored; (c) at any reasonable time, through its authorized agents and
employees, inspect, audit, and verify the accounts and the inventory, review
Undersigned's books and records, and copy or make excerpts from any document;
and (d) verify accounts with debtors in the name of Undersigned, Bank or Bank's
designee.
12. Miscellaneous Provisions. (a) Undersigned waives protest of all commercial
paper at any time held by Bank on which Undersigned is in any way liable, notice
of nonpayment at maturity of any and all accounts, and (except where requested
hereby) notice of action taken by Bank; and hereby ratifies and confirms
whatever Bank may do. Bank shall be entitled to exercise any right
notwithstanding prior exercise, failure to exercise or delay in exercising any
such right. (b) Bank shall retain the lien of any judgment entered on account of
the indebtedness evidenced hereby, as well as any security interest previously
granted to secure repayment of the indebtedness evidenced hereby, and
Undersigned warrants that Undersigned has no defense whatsoever to any action or
proceeding that may be brought to enforce or realize on such judgment of
security interest. (c) If any provision hereof shall for any reason be held
invalid or unenforceable, no other provision shall be affected thereby, and this
Note shall be construed as if the invalid or unenforceable provision had never
been a part of it. The descriptive headings of this Note are for convenience
only and shall not in any way affect the meaning or construction of any
provision hereof. (d) The rights and privileges of Bank contained in this Note
shall inure to the benefit of its successors and assigns, and the duties of
Undersigned shall bind all heirs, personal representatives, successors and
assigns. (e) This Note shall in all respects be governed by the laws of the
state in which this Note is payable (except to the extent that federal law
governs), and all references to the Uniform Commercial Code shall be deemed to
refer to the Uniform Commercial Code as enacted in such state. (f) Undersigned
hereby irrevocably appoints Bank and each holder hereof as Undersigned's
attorney-in-fact to: (1) endorse Undersigned's name to any draft or check which
may be payable to Undersigned in order to collect the proceeds of any insurance
or any returned or unearned premiums in respect of any policies of insurance
required to be maintained hereunder; and (2) take any action Bank deems
necessary to perfect or maintain perfection of any security interest granted to
Bank herein, including executing any document on Undersigned's behalf.
Undersigned hereby acknowledges that this appointment of Bank and each holder
hereof as attorney-in-fact is irrevocable and is coupled with an interest. (g)
Undersigned shall bear the risk of loss of, damage to, or destruction of the
Collateral, and Undersigned hereby releases Bank from all claims for loss or
damage to the Collateral caused by any act or omission on the part of Bank,
except for willful misconduct. (h) Copies or reproductions of this document or
of any financing statement may be filed as a financing statement.
13. Additional Power of Attorney. If the Collateral includes inventory and/or
accounts, the following shall be applicable: In addition to any powers of
attorney granted to Bank by Undersigned elsewhere in this Note, Undersigned
hereby appoints Bank and its officers, employees and agents as its irrevocable,
true and lawful attorneys-in-fact with all necessary power and authority to: (a)
endorse Undersigned's name on all media of payment delivered to Bank or
deposited in the Cash Collateral Account; (b) notify Undersigned's account
debtors of the assignment of their debts and direct them to make all payments
thereon to Bank; (c) in Bank's name or in the name of Undersigned, demand, ▇▇▇
for, collect, compromise, settle, and give releases from any account; and (d)
take such other action as Bank may deem appropriate for any such purpose.
Undersigned hereby acknowledges that this appointment of Bank and each holder
hereof as attorney-in-fact is irrevocable and is coupled with an interest. In
exercising its rights under this section, Bank shall have no liability to
Undersigned except for willful misconduct.
14. Definitions. As used herein: (a) "account," "chattel paper," "contract
right," "document," "instrument," and "inventory" have the same respective
meanings given to those terms in the Uniform Commercial Code; (b) "general
intangibles" has the meaning given to that term in the Uniform Commercial Code,
including without limitation, customer lists, books and records (including
without limitation, all correspondence, files, tapes, cards, book entries,
computer runs, computer programs and other papers and documents, whether in the
possession or control of Undersigned or any computer service bureau), rights in
franchises and sales contracts, patents, copyrights, trademarks, logos,
goodwill, trade names, label designs, royalties, brand names, plans, blueprints,
inventions, patterns, trade secrets, licenses, jigs, dies, molds, and formulas;
(c) "Chief Executive Office" means the place from which the main part of the
business operations of an entity is managed; (d) "Environmental Law" means any
federal, state or local environmental law, statute, regulation, rule, ordinance,
court or administrative order or decree, or private agreement or interpretation,
nor or hereafter in existence, relating to the manufacture, distribution,
labeling, use, handling, collection, storage, treatment, disposal or otherwise
of Hazardous Substances, or in any way relating to pollution or protection of
the environment or public health; (e) "Environmental Permit" means any federal,
state or local permit, license or authorization issued under or in connection
with any Environmental Law; (f) "Hazardous Substances" means petroleum and
petroleum products, radioactive materials, asbestos, radon, lead containing
materials, sewage or any materials or substances defined as or included in the
definition of "hazardous wastes," "hazardous substances," "hazardous materials,"
"toxic substances," "hazardous air pollutants," "topic pollutants," "pollution,"
or terms of similar meaning as those terms are used in any Environmental Law;
and (g) "Undersigned" refers individually and collectively to all makers of this
Note, including, in the case of any partnership, all general partners of such
partnership individually and collectively, whether or not such partners sign
below. Undersigned shall each be jointly and severally bound by the terms
hereof, and, with respect to any partnership executing this Note, each general
partner shall be bound hereby both in such general partner's individual and
partnership capacities.
[Remainder of page intentionally left blank]
Page 5 of 6
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Signatures
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Witness the due execution hereof under seal.
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Witness: Individual:
x x (Seal)
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Address
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Witness: Individual:
x x (Seal)
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Address
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Corporation or Other Entity
RF POWER PRODUCTS, INC.
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Attest/Witness: By: (Signature and Title)
x [SIGNATURE APPEARS HERE] x /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - VP & CFO (Seal)
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By: (Signature and Title)
x (Seal)
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(Corporate Seal) Business Address
▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Locations of inventory: Locations of records concerning the
accounts:
Voorhees, NJ Voorhees, NJ
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Austin, TX Austin, TX
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San Jose, CA San Jose, CA
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Page 6 of 6
SUPPLEMENT TO NOTE AND SECURITY AGREEMENT
-----------------------------------------
This Supplement to Note and Security Agreement ("Supplement") is annexed to
and is part of the Note and Security Agreement dated as of May 24th, 1996 of
Undersigned, payable to Mellon Bank, N.A. ("Bank"), in the stated principal
amount of $1,400,000.00 ("Facility"). Such Note and Security Agreement as
supplemented by this Supplement shall be referred to as the Note. Capitalized
terms used without further definition herein shall have the meaning set forth in
the Note.
1. Use of Borrowings. The proceeds of this Note shall be used by
-----------------
Undersigned to repay existing loans.
2. Payment-Interest. Interest shall be payable at each of the following
----------------
times: (a) if at the Prime Rate or the As-Offered Fixed Rate, on the first day
of each month, payable in arrears, beginning June 1, 1996 until the end of the
As-Offered Fixed Rate Period specified in each Notification or May 29, 2000, the
maturity date; and (b) if at the LIBOR Rate, at the end of each LIBOR Rate
Period specified in each Notification. Undersigned understands and agrees that
any payments of principal, interest or other sums required under this Note may
be deducted on the due date, without notice by Bank, from any deposit account
maintained by Undersigned with Bank.
3. Payment-Principal. Principal shall be payable in forty-seven (47)
-----------------
equal consecutive monthly installments of $29,166.66 each. The initial
principal installment will be due and payable on June 1, 1996 and thereafter on
the first day of each month. There shall be a final forty-eighth payment of all
remaining unamortized principal on May 29, 2000, the maturity date.
4. Interest Rate Options. (a) The outstanding principal balance of this
---------------------
Note shall earn interest at the Prime-Based Rate, provided however that, subject
---------------------
to the terms of paragraph 4(b) below, by giving Notification, Undersigned may
request to have all or such portion of the outstanding principal of this Note as
hereinafter permitted earn interest, instead, at the As-Offered Fixed Rate or
the LIBOR Rate as follows: (i) with respect to the principal amount outstanding
under the Facility, from the date of a Notification until the end of the
As-Offered Fixed Rate Period or the LIBOR Rate Period (as applicable) specified
in the Notification and/or (ii) with respect to the principal amount of any
portion of the Facility outstanding and earning interest at the As-Offered Fixed
Rate or the LIBOR Rate at the time of the Notification related to such principal
amount, from the expiration of the then current As-Offered Fixed Rate Period or
LIBOR Rate Period related to such principal amount until the end of the
As-Offered Fixed Rate Period or LIBOR Rate Period (as applicable) specified in
the Notification; and/or (iii) with respect to all or any portion of the
principal amount of the Facility outstanding and earning interest at the
Prime-Based Rate at the time of Notification, from the date set forth in the
Notification until the
end of the As-Offered Fixed Rate Period or LIBOR Rate Period (as applicable)
specified in the Notification. There shall be no more than one (1) advance of
principal accruing interest at the As-Offered Fixed Rate and no more than one
(1) advance of principal accruing interest at the LIBOR Rate outstanding at any
one time. The Undersigned shall, in selecting any interest rate option and/or
interest rate period, allow for scheduled principal installment repayments.
(b) Undersigned understands and agrees: (i) that Bank, from time to
time, may refuse any request of Undersigned to select, convert to or renew the
As-Offered Fixed Rate or LIBOR Rate, as the case may be, if Bank determines in
good faith (which determination shall be conclusive) that the Undersigned is in
default under the Note or that such interest rate is impractical or unlawful due
to any law, regulation, rule, guideline or interpretation or administration to
which Bank may be subject, (ii) that subject to the provisions of this Note, the
Prime-Based Rate, the As-Offered Fixed Rate or the LIBOR Rate may apply
simultaneously to the different parts of the outstanding principal of this Note,
(iii) that the As-Offered Fixed Rate or LIBOR Rate, as the case may be, may
apply simultaneously to various portions of the outstanding principal for
various As-Offered Fixed Rate Periods or LIBOR Rate Periods, as the case may be,
(iv) that the As-Offered Fixed Rate or LIBOR Rate, as the case may be,
applicable to any portion of outstanding principal may be different from the
As-Offered Fixed Rate or LIBOR Rate, as the case may be, applicable to any other
portion of outstanding principal and (v) that the Bank shall have the right to
terminate any As-Offered Fixed Rate Period or LIBOR Rate Period, as the case may
be, and the interest rate applicable thereto, prior to maturity of such Rate
Period, if Bank determines in good faith (which determination shall be
conclusive) that continuance of such interest rate has been made impractical or
unlawful by any law, regulation, rule, guideline or interpretation or
administration to which Bank may be subject, in which event the principal to
which such terminated Rate Period relates thereafter shall earn interest at the
Prime-Based Rate.
5. Interest Rate Spread. The Undersigned's shall pay a basis point
--------------------
spread under this Note on its LIBOR Rate Option based on the Undersigned's
financial performance based on its Cash Flow Ratio (as defined in the Credit
Agreement) and effective on the first day following receipt of the Undersigned's
quarterly financial statements and continuing until receipt of the Undersigned's
quarterly financial statements for the following fiscal quarter:
Cash Flow Ratio LIBOR Rate Plus
--------------- Basis Point Spread
------------------
Less than 2.50 to 1.00 LIBOR + 150 b.p.
Greater than or equal to 2.50 to 1.00,
but less than 3.50 to 1.00 LIBOR + 125 b.p.
Greater than or equal to 3.50 to 1.00 LIBOR + 100 b.p.
-2-
6. Prime-Based Rate Fallback. After expiration of any As-Offered Fixed
-------------------------
Rate Period or LIBOR Rate Period, as applicable, any principal portion
corresponding to such Rate Period which has not been converted or renewed in
accordance with paragraph 4 hereof shall earn interest automatically at the
Prime-Based Rate from the date of expiration of such Rate Period until paid in
full, unless and until Undersigned request and Bank approves a conversion
to the As-Offered Fixed Rate or the LIBOR Rate, as applicable, in accordance
with paragraph 4. With respect to any principal amount, if Undersigned fails to
request the As-Offered Fixed Rate option or the LIBOR Rate option, as the case
may be, by giving Bank a Notification, or if Bank fails to approve such request
when made, such principal amount shall be deemed to earn interest at the Prime-
Based Rate.
7. Voluntary Repayment. Prior to the occurrence of an Event of Default
-------------------
hereunder, (a) Undersigned shall have the right at its option from time to time
to prepay that portion of the outstanding principal balance hereof which is
earning interest at such time at the Prime-Based Rate in whole or in part
without any Repayment Premium; and (b) Undersigned shall have the right to
prepay all or any portion of the outstanding principal balance hereof which is
earning interest at the As-Offered Fixed Rate or the LIBOR Rate, provided
--------
however that, any prepayments of principal earning interest at the As-Offered
------------
Fixed Rate or the LIBOR Rate shall be applied to the unpaid installments of
principal in the reverse order of their maturities and shall be accompanied by
the Repayment Premium applicable thereto.
8. Indemnity. Undersigned shall indemnify Bank against any loss or expense
---------
(including loss of margin) which Bank has sustained or incurred as a consequence
of: (a) any payment, prepayment or conversion of any principal amount earning
interest at the As-Offered Fixed Rate or the LIBOR Rate, as the case may be, on
a day other than the last day of the corresponding Rate Period (whether or not
any such payment is made pursuant to demand by Bank under this Note and whether
or not any such payment is consented to by Bank, unless Bank shall have
expressly waived such indemnity in writing); (b) any attempt by Undersigned to
revoke in whole or part any Notification given pursuant to this Note; (c) any
attempt by Undersigned to convert or renew any principal amount earning interest
at the As-Offered Fixed Rate or the LIBOR Rate, as the case may be, on a day
other than the last day of the corresponding applicable Rate Period (whether or
not such conversion or renewal is consented to by Bank, unless Bank shall have
expressly waived such indemnity in writing); or (d) any Event of Default.
If Bank sustains any such loss or expense it shall from time to time
notify Undersigned of the amount determined in good faith by Bank (which
determination shall be conclusive) to be necessary to indemnify Bank for such
loss or expense. Such amount shall be due and payable by Undersigned on demand.
-3-
9. Records. The unpaid principal amount of this Note, the unpaid interest
-------
accrued thereon, the interest rate or rates applicable to such unpaid principal
amount, the duration of such applicability and the date and amount of each
payment or demand shall at all times be ascertained from the books and records
created by Bank, which shall be conclusive absent manifest error.
All notices (including any Notification) under this Note shall be in
writing or by telephone promptly confirmed in writing, and all such writings
shall be sent by first-class, first-class express or certified mail or by hand
delivery, in all cases with charges prepaid, provided that Bank may act in
reliance on any telephonic notice prior to receipt of written confirmation. All
notices shall be sent to Undersigned at the address stated on the signature page
hereof or in accordance with the last unrevoked written direction from
Undersigned to Bank. All notices by Undersigned shall be effective when received
by Bank at its address at Mellon Bank, N.A., Plymouth Meeting Executive Campus,
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Attention: Middle
Market Banking, and all notices by Bank shall be effective when telephoned,
deposited in the mail or hand delivered. Written notices or confirmations by
Undersigned shall not be deemed records of Bank within the meaning of this
paragraph whether or not received by Bank and, in the event that any written
notice sent by Undersigned in confirmation of telephonic notice differs from
Bank's records of such telephonic notice, Bank may act in reliance upon such
telephonic notice as if written notice were not received, provided that Bank has
acted in good faith. Bank may conclusively rely without inquiry on any notice or
confirmation purporting to be from or authorized by Undersigned and such
reliance shall be presumed to be correct.
10. Time of Essence. The prompt and faithful performance of all of
---------------
Undersigned's obligations hereunder, including without limitation time of
payment, is of the essence of this Note.
11. Definitions. As used in this Note: "As-Offered Fixed Rate" means a
----------- -----------------------
per annum rate of interest (computed on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed) offered by Bank to Undersigned.
"As-Offered Fixed Rate Period" means for any portion of principal for which
------------------------------
Undersigned elects the As-Offered Fixed Rate the period of time for which such
As-Offered Fixed Rate shall apply to such principal portion. "LIBOR Rate" means
------------
for any day during each LIBOR Rate Period the per annum rate of interest
(computed on a basis of a year of 360 days and actual days elapsed) determined
by Bank by adding (a) the per annum rate of interest (rounded upward to the
nearest 1/100 of 1%) obtained by dividing (i) the rate of interest estimated in
good faith by Bank in accordance with its usual procedures (which determination
shall be conclusive) to be the average of the rate per annum for deposit, in an
amount of U.S. Dollars comparable to the amount of principal relating to such
LIBOR Rate Period and having maturities comparable to such LIBOR Rate Period,
offered to major money center banks in the London interbank market at
-4-
or about 11:00 a.m., London time, two London Business Days prior to such LIBOR
Rate Period, (ii) a number equal to 1.00 minus the LIBOR Rate Reserve Percentage
-----
for such day, and (b) the applicable basis point spread. "LIBOR Rate Period"
-----------------
means for any portion of principal for which Undersigned elects the LIBOR Rate
the period of time for which such rate shall apply to such principal portion.
LIBOR Rate Periods shall be the periods of 30, 60 and 90 days and for no other
length of time. "LIBOR Rate Reserve Percentage" for any day means the percentage
-----------------------------
(rounded upward to the nearest 1/100 of 1%), as determined in good faith by Bank
(which determination shall be conclusive) as representing for such day the
maximum effective percentage as prescribed by the Board of Governors of the
Federal Reserve System (or any successor) for determining the reserve
requirements (including, without limitation, supplemental, marginal and
emergency reserve requirements) for Bank with respect to eurocurrency funding.
"Notification" means telephonic notice (which shall be irrevocable) by
Undersigned to Bank that Undersigned has requested that the As-Offered Fixed
Rate or the LIBOR Rate, as the case may be, shall apply to some portion of the
principal amount of this Note in accordance with the provisions of paragraph 4
hereof, which notice shall be given no later than 1:00 p.m., local time at the
place where this Note is payable, on the day (which shall be a day on which Bank
is opened for business) on which such election is to become effective, or if the
LIBOR Rate is requested, 1:00 p.m., local time at the place where this Note is
payable, on the day which is at least three (3) business days prior to the day
(which shall be a day on which Bank is opened for business) on which such
election is to become effective, which notice shall specify (i) that the As-
Offered Fixed Rate or LIBOR Rate option is being selected; (ii) the principal
amount to be subject to the As-Offered Fixed Rate or the LIBOR Rate; (iii)
whether such amount is a renewal of a previous request of the As-Offered Fixed
Rate or the LIBOR Rate, a conversion from the Prime Based Rate or As-offered
Fixed Rate to the Libor Rate, or a combination thereof; (iv) the Rate Period
selected; and (v) the date on which such request is to become effective (which
date shall be a date selected in accordance with paragraph 4(a) hereof). "Prime-
-----
Based Rate" means a per annum rate of interest, calculated on an 360 day basis
----------
but charged on the actual number of days elapsed, equal to the rate of interest
announced from time to time by Bank as its Prime Rate which rate is not
necessarily the lowest interest rate charged by the Bank for loans, such Prime-
Based Rate to change from time to time as of the effective date of each change
in the Prime Rate. "Repayment Premium" means the amount which Undersigned shall
-----------------
pay to Bank as a premium in connection with a repayment of outstanding principal
earning interest at the As-Offered Fixed Rate or the LIBOR Rate, as applicable,
at the time of repayment, which amount shall be the amount determined by Bank to
be the difference between (a) the present value of the interest payments that
would have been paid in the future to Bank by Undersigned on such repaid portion
of principal accruing at the As-Offered Fixed Rate or the LIBOR Rate or as
applicable, but for such repayment, and (b) the present value of the interest
payments that would be paid in the
-5-
future to Bank at the United States Treasury Rate if on or about the date of
repayment Bank made a hypothetical investment of the repaid portion of principal
accruing at a fixed rate of interest in United States Treasury securities
maturing on or about the date that the repaid portion of principal would have
matured but for such repayment and bearing interest accruing from the date of
repayment, payable on each date on which Undersigned, but for such repayment,
would have paid interest on the repaid portion of principal. "Undersigned"
-----------
means, individually and collectively, all makers of this Note. "United States
-------------
Treasury Rate" means a rate of interest per annum, equal to (rounded downward to
-------------
the nearest 1/100 of one percent) the annual yield Bank could obtain by
purchasing on the date of repayment United States Treasury Securities with
semi-annual interest payments, maturing on or about the date on which the repaid
portion of principal would have matured.
WITNESS the due execution and delivery hereof, intending to be legally
bound.
ATTEST: RF POWER PRODUCTS, INC.
/s/ ▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director Cost Accounting Chief Financial Officer
Accepted by:
MELLON BANK, N.A.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
-6-