I T N E
S S E T H :
consideration of the premises and of the mutual covenants herein contained
to induce Lender to extend credit to Borrower, the parties agree as follows:
Capitalized terms that are not otherwise defined herein shall have the meanings
set forth in Exhibit
Revolving Credit Loans.
request from Borrower, Lender in its sole and absolute discretion may make
Revolving Credit Loans to Borrower from time to time during the Revolving Credit
Period in amounts such that the aggregate principal amount of Revolving Credit
Loans at any one time outstanding will not exceed the Maximum Loan Amount.
may borrow, prepay and request additional Revolving Credit Loans at any time
during the Revolving Credit Period.
Revolving Credit Loans will bear interest at the Prime Rate plus 2% per annum.
may request a Revolving Credit Loan in form satisfactory to Lender. Lender
either advance the requested Revolving Credit Loan or inform Borrower that
will not make the requested Revolving Credit Loan within one Business Day of
the foregoing, at the request of Borrower, Lender may, in its sole and absolute
discretion, make or permit to remain outstanding Revolving Credit Loans in
excess of the original Maximum Loan Amount, each of which shall be a Revolving
Credit Loan secured hereunder with interest at the Prime Rate plus 2% per annum.
will maintain all of its primary deposit accounts with Sovereign Bank.
Borrower promises to pay within ten (10) days of written DEMAND being made
the Lender on the Borrower:
Revolving Credit Loans, and the principal amount thereof and all interest,
expenses and other amounts payable hereunder, and
Demand is made under Section 2.4, Borrower will pay interest on the aggregate
unpaid principal balance of the Revolving Credit Loans in arrears on the first
Business Day of each month.
payments not made as and when due or on DEMAND shall bear interest from the
due until paid at the Default Rate.
Lender will maintain a record of Revolving Credit Loans, interest thereon,
expenses related thereto and payments made by Borrower and such records and
records will be presumed complete and accurate and will be definitive and
binding on Borrower absent manifest error.
interest hereunder shall be computed on the basis of a year of 360 days, and
each case shall be payable for the actual number of days elapsed (including
first day but excluding the last day). The applicable Prime Rate shall be
determined by Lender and such determination shall be conclusive absent manifest
Precedent to Initial Advance.
addition to any other requirement set forth in this Agreement, Lender will
make the initial Revolving Credit Loan unless and until the following conditions
shall have been satisfied:
and Other Documents.
Borrower shall have executed and delivered this Agreement, and other documents
required by Lender, all in form and substance satisfactory to Lender.
Borrower shall cause to be delivered to Lender all certificates evidencing
of the outstanding shares of g8wave, Ltd.
financing statements shall duly have been recorded or filed in the manner and
places required by law to establish, preserve, protect and perfect the interests
and rights created or intended to be created by the security interest granted
hereunder; and all taxes, fees and other charges in connection with the
execution, delivery and filing of the financing statements shall duly have
Borrower shall have delivered such further documentation or assurances as Lender
may reasonably require.
order to induce Lender to enter into this Agreement and to make the Revolving
Credit Loans provided for herein, Borrower makes the following representations
and warranties, all of which shall survive the execution and delivery of this
Agreement. Unless otherwise specified, such representations and warranties
be deemed made as of the date hereof and as of each date Borrower requests
Revolving Credit Loan:
Existence and Power.
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and is duly qualified or licensed to
transact business in all places where the failure to be so qualified would
a Material Adverse Effect on it. The Borrower has the power to make and perform
this Agreement and this Agreement will constitute the legal, valid and binding
obligation of the Borrower enforceable in accordance with its terms, subject
only to bankruptcy and similar laws affecting creditors' rights generally.
execution, delivery and performance by Borrower of this Agreement has been
authorized by all necessary action of the Borrower.
Borrower has good title to all of the assets shown in its financial statements
free and clear of all Liens, except Permitted Liens.
Collateral. The security interests granted to Lender herein (a)
constitute, and as to subsequently acquired property included in the Collateral
will constitute, a security interest under the Code entitled to all of the
rights, benefits and priorities provided by the Code, and (b) are, and as to
such subsequently acquired Collateral will be, fully perfected, superior and
prior to the rights of all third persons, now existing or hereafter arising
the extent a security interest can be perfected by filing a UCC-1 financing
statement and Lender files an effective UCC-1 financing statement in the
appropriate jurisdictions in accordance with the Uniform Commercial Code as
effect in such jurisdictions, subject only to Permitted Liens. All of the
Collateral is intended for use solely in Borrower's business.
Borrower has filed all federal and state income and other tax returns which
required to be filed, and have paid all taxes as shown on said returns and
taxes, including withholding, FICA and ad valorem
shown on all assessments received by it to the extent that such taxes have
become due. Neither Borrower nor any Subsidiary is subject to any federal,
or local tax Liens nor has such Person received any notice of deficiency or
other official notice to pay any taxes. Borrower and each Subsidiary have paid
all sales and excise taxes payable by it.
Borrower nor any of its assets, are subject to any unpaid judgments (whether
not stayed) or any judgment liens in any jurisdiction.
Borrower’s only Subsidiary is g8wave, Ltd.
Borrower and each Subsidiary thereof is in compliance in all material respects
with the requirements of all laws and all orders, writs, injunctions and decrees
applicable to it or to its properties, except in such instances in which (a)
such requirement of law or order, writ, injunction or decree is being contested
in good faith by appropriate proceedings diligently conducted or (b) the failure
to comply therewith, either individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
Covenants of Borrower.
Borrower covenants and agrees that from the date hereof and until payment in
full of the Indebtedness and the formal termination of this Agreement, Borrower
and each Subsidiary:
Revolving Credit Loan Proceeds.
use the proceeds of the Revolving Credit Loans for working capital to be used
the operation of Borrower’s business and Borrower shall furnish Lender all
evidence that it may reasonably require with respect to such use.
of Business and Properties.
at all times maintain, preserve and protect all Collateral and all the remainder
of its material property used or useful in the conduct of its business, and
the same in good repair, working order and condition (ordinary wear and tear
accepted), and from time to time make, or cause to be made, all material needful
and proper repairs, renewals, replacements, betterments and improvements thereto
so that the business carried on in connection therewith may be conducted
properly and in accordance with standards generally accepted in businesses
similar type and size at all times, and maintain and keep in full force and
effect all licenses and permits reasonably necessary to the proper conduct
permit inspections of the Collateral and the records of such Person pertaining
thereto and verification of the Accounts, at such times and in such manner
may be reasonably required by Lender.
maintain books and records in accordance with GAAP and shall furnish to Lender
such financial information including, without limitation, a balance sheet of
Borrower and a consolidated income statement and statement of cash flows,
together with all supporting schedules, setting forth in comparative form the
figures for the same period of the preceding fiscal year, and certified by
chief financial officer of Borrower as true and correct and fairly representing
the financial condition of Borrower and its Subsidiaries and that such
statements are prepared in accordance with GAAP, as the Lender may request
time to time.
deliver copies of all tax returns filed with any taxing authority within 10
of filing such return.
of Existence and Rights.
preserve and maintain its corporate existence, authorities to transact business,
rights and franchises, trade names, patents, trademarks and permits necessary
the conduct of its business.
of Taxes, Etc.
pay before delinquent all of its debts and taxes, except for debts and taxes
being actively contested in good faith and in accordance with law and with
proper reserves maintained on its books and records. Borrower shall promptly
notify Lender of any such taxes being so contested.
with Intellectual Property.
maintain all of its patents, trademarks and copyrights, shall actively pursue
any infringement of any such patent, trademark or copyright, and shall operate
its business so as to not knowingly infringe any patent, trademark or copyright.
take such further action and provide to Lender such further assurances as may
reasonably requested to ensure compliance with the intent of this Agreement.
the Collateral only in the ordinary course of its business and shall not permit
the Collateral to be used in violation of any applicable law or policy of
defend the Collateral against all claims and demands of all Persons, except
obtain and deliver to Lender such waivers as Lender may require waiving the
landlord's, mortgagee's or other lienholder's enforcement rights against the
Collateral and assuring Lender's access to the Collateral in exercise of its
Covenants of Borrower.
Borrower covenants and agrees that from the date hereof and until payment in
full of the Indebtedness and the formal termination of this Agreement, Borrower
and each Subsidiary:
not create or permit to exist any Debt, except Permitted Debt.
not create or permit any Liens on any of its property except Permitted Liens.
not declare or pay any dividend other than dividends and distributions made
the Subsidiary of Borrower to Borrower.
not institute or maintain any Benefit Plan a other than the existing 401(k)
for its employees under 26 USC §401(k).
and Other Investments.
not make or permit to exist any advances or loans to, or guarantee or become
contingently liable, directly or indirectly, in connection with the obligations,
leases, stock or dividends of, or own, purchase or make any commitment to
purchase any stock, bonds, notes, debentures or other securities of, or any
interest in, or make any capital contributions to (all of which are sometimes
collectively referred to herein as “Investments”) any Person except for (a)
purchases of direct obligations of the federal government, (b) deposits in
commercial banks, (c) commercial paper of any U.S. corporation having the
highest ratings then given by the Xxxxx’x Investors Services, Inc. or Standard
& Poor’s Corporation, (d) existing investments in Subsidiaries, (e)
endorsement of negotiable instruments for collection in the ordinary course
business, (f) advances to employees for business travel and other expenses
incurred in the ordinary course of business which do not at any time exceed
$5,000.00 in the aggregate and (g) any mutual fund or other pooled investment
vehicle rated at least AA by Xxxxx’x Investor Services, Inc. or AAA by Standard
& Poors Corporation.
not enter into any business which is substantially different from the business
in which it is presently engaged.
not sell, assign or discount any of its Accounts, chattel paper or any
promissory notes, instrument or payment intangible held by it other than the
discount of such notes in the ordinary course of business for collection.
Change in Name, Offices; Removal of Collateral.
not, unless it shall have given 60 days’ advance written notice thereof to
Lender, (a) change its name or the location of its chief executive office or
other office where books or records are kept, (b) change its state of
organization or (c) permit any Inventory or other tangible Collateral to be
located at any location other than its usual place of business at the address
listed in Section 9.6.
not use any proceeds of the Revolving Credit Loan to purchase or carry any
margin stock (within the meaning of Regulation U of the Board of Governors
Federal Reserve System) or extend credit to others for the purpose of purchasing
or carrying any margin stock.
not allow any Inventory or other tangible Collateral to be commingled with,
become an accession to or part of, any property of any other Person so long
such property is Collateral; nor allow any tangible Collateral to become a
not acquire, form or dispose of any Subsidiaries or permit any Subsidiary to
issue capital stock except to its parent.
not use any new trade or fictitious name.
of fiscal year or Accounting Methods.
not change its fiscal year or its significant accounting methods without the
prior written consent of Lender.
DEMAND UNDER SECTION 2.4, Lender may, without notice to Borrower, at its option,
take any or all of the following actions, except as limited by Section 7.4:
suit against Borrower to collect the Indebtedness, exercise any remedy available
to Lender hereunder or at law and take any action or exercise any remedy
provided herein or under applicable law. No remedy shall be exclusive of other
remedies or impair the right of Lender to exercise any other remedies.
waiving any of its other rights hereunder exercise all rights and remedies
secured party under the Code (and the Uniform Commercial Code of any other
applicable jurisdiction) and such other rights and remedies as may be available
hereunder, under other applicable law or pursuant to contract. If requested
Lender, Borrower will promptly assemble the Collateral and make it available
Lender at a place to be designated by Lender. Borrower agrees that any notice
Lender of the sale or disposition of the Collateral or any other intended action
hereunder, whether required by the Code or otherwise, shall constitute
reasonable notice to Borrower if the notice is mailed to Borrower by regular
certified mail, postage prepaid, at least ten days before the action to be
taken. Borrower shall be liable for any deficiencies in the event the proceeds
of the disposition of the Collateral do not satisfy the Indebtedness in full.
collect and xxx for all amounts owed pursuant to Accounts, general intangibles,
chattel paper or for proceeds of any Collateral (either in Borrower's name
Lender's name at the latter's option), with the right to enforce, compromise,
settle or discharge any such amounts.
Lender acknowledges that Borrower's parent company, g8wave Holdings, Inc.,
a Delaware corporation ("Parent"), and Xxxx Xxxxxxx, an affiliate of Lender
("Mindich"), are currently negotiating a stock purchase agreement pursuant
which Parent would sell to Mindich all of the outstanding equity securities
Borrower (the "Stock Purchase Agreement"). Accordingly after the execution
delivery of the Stock Purchase Agreement and until the Stock Purchase Agreement
has been terminated or the transactions provided for in the Stock Purchase
Agreement have been consummated the period of time for payment after DEMAND
provided in Section 2.4 shall be extended to twenty (20) days.
security for the payment and performance of any and all of the Indebtedness
the performance of all other obligations and covenants of Borrower hereunder,
certain or contingent, now existing or hereafter arising, which are now, or
at any time or times hereafter be owing by Borrower to Lender, Borrower hereby
pledges to Lender and gives Lender a continuing security interest in and general
Lien upon and right of set off against, all right, title and interest of
Borrower in and to the Collateral, whether now owned or hereafter acquired
herein or by applicable law otherwise expressly provided, Lender shall not
obligated to exercise any degree of care in connection with any Collateral
its possession, to take any steps necessary to preserve any rights in any of
Collateral or to preserve any rights therein against prior parties. In any
Lender shall be deemed to have exercised reasonable care if it shall have taken
such steps for the care and preservation of the Collateral or rights therein
Borrower may have reasonably requested Lender to take and Lender's omission
take any action not requested by Borrower shall not be deemed a failure to
exercise reasonable care. No segregation or specific allocation by Lender of
specified items of Collateral against any liability of Borrower shall waive
affect any security interest in or Lien against other items of Collateral or
of Lender's options, powers or rights under this Agreement or otherwise arising.
of Certificated Securities.
furtherance of the security interest granted by the Borrower to the Lender,
Borrower shall deliver to the Lender each certificate evidencing any
certificated security which the Borrower owns or controls with such endorsements
or stock power executed in blank as is necessary to permit the transfer the
interest of the Borrower in such certificated security,
Borrower shall obtain control agreement or control agreements from each bank
other institution with which the Borrower maintains a deposit account of any
nature in such form satisfactory to the Lender, perfecting the security interest
of the Lender in each such deposit account.
Power of Attorney. Borrower authorizes Lender at Borrower's expense to
file any financing statements relating to the Collateral which Lender deems
appropriate and Borrower irrevocably appoints Lender as its
attorney in fact to perform all other acts which Lender deems
appropriate to perfect and to continue perfection of the security interest
Lender. Effective upon a demand made pursuant to Section 2.4, and subject to
Section 7.4, Borrower hereby appoints Lender as Borrower's
attorney in fact to endorse, present and collect on behalf of Borrower
and in Borrower's name any draft, checks or other documents necessary or
desirable to collect any amounts, which Borrower may be owed. Effective upon
demand made pursuant to Section 2.4, and subject to Section 7.4, to the extent
permitted by applicable law or by the terms of any such licenses or franchise
agreements, Lender is hereby granted a license or other right to use, without
charge, Borrower’s patents, copyrights, rights of use of any name, trade
secrets, trade names, trademarks and advertising matter, or any Property of
similar nature, as it pertains to the Collateral, in advertising for sale and
selling any Collateral, and Borrower’s rights under all licenses and all
franchise agreements shall inure to Lender’s benefit. The proceeds realized from
the sale or other disposition of any Collateral may be applied, after allowing
two (2) Business Days for collection, first to the reasonable costs, expenses
and attorneys’ fees and expenses incurred by Lender for collection and for
acquisition, completion, protection, removal, storage, sale and delivering
the Collateral; secondly, to interest due upon any of the Indebtedness; and
thirdly, to the principal amount of the Indebtedness. If any deficiency shall
arise, Borrower shall remain liable to Lender therefor.
Entry. Borrower hereby irrevocably consents to any act by Lender or its
agents in entering upon any premises for the purposes of either (i) inspecting
the Collateral or (ii) upon a demand made pursuant to Section 2.4, and subject
to Section 7.4, taking possession of the Collateral and Borrower hereby waives
its right to assert against Lender or its agents any claim based upon trespass
or any similar cause of action for entering upon any premises where the
Collateral may be located.
Borrower authorizes Lender without affecting Borrower's obligations hereunder
from time to time to take from any party and hold additional collateral or
guaranties for the payment of the Indebtedness or any other supporting
obligations or any part thereof, and to exchange, enforce or release such
collateral or guaranty of payment of the Indebtedness or any other supporting
obligation or any part thereof and to release or substitute any endorser or
guarantor or any party who has given any security interest in any collateral
security for the payment of the Indebtedness or any part thereof or any party
any way obligated to pay the Indebtedness or any part thereof.
Borrower hereby waives any right it may have to require marshaling of its
Waiver, Remedies Cumulative.
failure on the part of Lender to exercise, and no delay in exercising, any
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and are in addition to any other remedies provided by law or otherwise.
representations and warranties made herein shall survive the making of the
Revolving Credit Loans hereunder and shall continue in full force and effect
long as any Indebtedness is outstanding, there exists any commitment by Lender
to Borrower, and until this Agreement is formally terminated in writing.
Borrower shall pay (i) all reasonable out of pocket expenses incurred by Lender
(including the reasonable fees, charges and disbursements of counsel for Lender,
in connection with the preparation, negotiation, execution, delivery and
administration of this Agreement or any amendments, modifications or waivers
the provisions hereof or thereof and (ii) all out of pocket expenses incurred
Lender (including the fees, charges and disbursements of any counsel for Lender,
in connection with the enforcement or protection of its rights (A) in connection
with this Agreement or (B) in connection with the Revolving Credit Loans made
hereunder, including all such out of pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Revolving Credit
Borrower shall indemnify Lender and its Affiliates, and each officer, director,
agent or attorney of any of the foregoing Persons (each such Person being called
an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the fees,
charges and disbursements of any counsel for any Indemnitee), incurred by any
Indemnitee or asserted against any Indemnitee by any third party or by Borrower
arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement or any agreement or instrument contemplated hereby
thereby, the performance by the parties hereto of their respective obligations
hereunder or thereunder or the consummation of the transactions contemplated
hereby or thereby, (ii) any Revolving Credit Loan or the use or proposed use
the proceeds therefrom (iii) any actual or alleged presence or release of
hazardous or toxic materials on or from any property owned or operated by
Borrower or any of its Subsidiaries, or any liability under any environmental
law related in any way to Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating
any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by Borrower, and regardless of whether
Indemnitee is a party thereto.
of Consequential Damages, Etc.
fullest extent permitted by applicable law, Borrower shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability,
special, indirect, consequential or punitive damages (as opposed to direct
actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby or the use of the proceeds thereof. No Indemnitee
shall be liable for any damages arising from the use by unintended recipients
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the transactions contemplated hereby or thereby.
in the case of notices and other communications expressly permitted to be given
by telephone, notice of DEMAND under Section 2.4 and all other notices and
communications provided for herein shall be in writing and shall be delivered
hand or overnight courier service, mailed by certified or registered mail or
sent by telecopier as follows:
Management Company, LLC
Xxxxxxx X. Xxxxxxxxx, Xx.
sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
facsimile shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices and other communications sent to an e-mail address shall
deemed received upon the sender’s receipt of an acknowledgment from the intended
recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgment), provided
such notice or other communication is not sent during the normal business hours
of the recipient, such notice or communication shall be deemed to have been
at the opening of business on the next business day for the recipient,
Agreement is made under the laws of The Commonwealth of Massachusetts and shall
be governed by and construed in accordance with the laws of said commonwealth
(excluding its conflict of laws provisions if such provisions would require
application of the laws of another jurisdiction) except insofar as the laws
another jurisdiction may, by reason of mandatory provisions of law, govern
perfection, priority and enforcement of security interests in the Collateral.
Agreement shall be binding upon and shall inure to the benefit of Borrower
Lender, and their respective successors and assigns; provided that Borrower
not assign any of its rights hereunder without the prior written consent of
Lender, and any such assignment made without such consent will be void.
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed an original and all of which when taken together shall
constitute but one and the same instrument.
powers of attorney granted to Lender are coupled with an interest and are
Agreement calls for the approval or consent of Lender, such approval or consent
may be given or withheld in the discretion of Lender unless otherwise specified
party agrees that it shall not have a remedy of punitive or exemplary damages
against the other in any dispute and hereby waives any right or claim to
punitive or exemplary damages it may have now or which may arise in the future
in connection with any dispute.
OF JURY TRIAL.
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10.15.
of Certain Defenses.
rights of Lender and all obligations of Borrower hereunder shall be absolute
unconditional irrespective of (i) any change in the time, manner or place of
payment of, or any other term of, all or any of the Indebtedness, or any other
amendment or waiver of or any consent to any departure from any provision of
this Agreement, (ii) any exchange, release or non-perfection of any other
collateral given as security for the Indebtedness, or any release or amendment
or waiver of or consent to departure from any guaranty for all or any of the
Indebtedness, or (iii) any other circumstance which might otherwise constitute
defense available to, or a discharge of, Borrower or any third party, other
payment and performance in full of the Indebtedness.
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WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
Management Company, LLC
Xxxxxxx X. Xxxxxxxxx, Xx.
Xxxxxxx X. Xxxxxxxxx, Xx.
Chief Financial Officer
President & CEO
exhibit is omitted, the information called for therein shall be considered
“None” or “Not Applicable”)
any account receivable as defined in the Code.
Person means (a) any Person directly or indirectly controlling, controlled
under common control with such named Person; (b) any officer, director or
employee of such named Person or any Affiliate of the named Person; and (c)
family member of the named Person or any Affiliate of such named Person.
mean an employee pension benefit plan of Borrower or an ERISA Affiliate, as
defined in Section 3(2) of ERISA, which is subject to Title IV of ERISA.
any day that is not a Saturday, Sunday or other day on which commercial banks
Massachusetts are authorized or required by law to remain closed.
the Uniform Commercial Code, as in effect in the Commonwealth of Massachusetts
from time to time.
the following property of Borrower, wherever located and whether now owned
Borrower or hereafter acquired (all terms shall have the meaning provided in
Code): (a) all Accounts. (b) all Inventory; (c) all general intangibles; (c)
chattel paper, (d) all instruments, (e) all payment intangibles, (f) all
Equipment, (g) all investment property, (h) all bank accounts and deposit
accounts, (i) all supporting obligations, (j) all trademarks, tradenames,
copyrights or other rights in intellectual property, (k) all rights of the
Borrower in any contracts or agreements which may be assigned of right and
(l) all parts, replacements, substitutions, profits, products and cash and
non-cash proceeds of any of the foregoing (including insurance proceeds payable
by reason of loss or damage thereto) in any form and wherever located.
Collateral shall include all written or electronically recorded books and
records relating to any such Collateral and other rights relating thereto.
the following obligations of a Person as determined under GAAP and all such
obligations which such Person has guaranteed or endorsed or is otherwise
secondarily or jointly liable for including: (a) all obligations for borrowed
money or purchased assets, (b) obligations secured by assets whether or not
personal liability exists, (c) the capitalized amount of any capital or finance
lease obligations, (d) the unfunded portion of pension or benefit plans or
similar liabilities, and (e) contingent obligations pursuant to guaranties,
endorsements, letters of credit and other secondary liabilities.
rate equal to the lesser of (a) the Prime Rate plus five percent (5%) per annum
or (b) the highest rate of interest allowed by law.
have the meaning provided in the Code.
the Employee Retirement Income Security Act of 1974, as amended from time to
generally accepted accounting principles as in effect in the Unites States
time to time.
all obligations now or hereafter owed to Lender by Borrower, whether related
unrelated to the Revolving Credit Loans, including, without limitation, amounts
owed or to be owed under the terms of this Agreement, or arising out of the
transactions described therein, including, without limitation, the Revolving
Credit Loans together with all interest accruing thereon, all fees, all costs
collection, attorneys' fees and expenses of or advances by Lender which Lender
pays or incurs in discharge of obligations of Borrower or to inspect, repossess,
protect, preserve, store or dispose of any Collateral, whether such amounts
now due or hereafter become due, direct or indirect and whether such amounts
are from time to time reduced or entirely extinguished and thereafter
have the meaning provided in the Code.
any mortgage, pledge, statutory lien or other lien arising by operation of
security interest, trust arrangement, security deed, financing lease, collateral
assignment or other encumbrance, conditional sale or title retention agreement,
or any other interest in property designed to secure the repayment of
Indebtedness, whether arising by agreement or under any statute or law or
any event, condition or fact which could reasonably be expected to materially
and adversely effect the ability of Borrower to fulfill or perform any of its
obligation under this Agreement.
Debt” means (a) the Indebtedness, (b) any other Debt listed on Schedule A hereto
(if any) and any extensions, renewals, replacements, modifications and
refundings of any such Debt; provided, however, that the principal amount of
such Debt may not be increased from the amount shown as outstanding on such
exhibit, except as provided on such exhibit, and (c) Debt incurred for capital
expenditures secured only by the capital asset purchased with such Debt, and
trade debt incurred in the ordinary course of business, consistent with past
mean (i) statutory liens of landlords, carriers, warehousemen, processors,
mechanics, materialmen or suppliers incurred in the ordinary course of business
and securing amounts not yet due or declared to be due by the claimant
thereunder, (ii) liens or security interests in favor of Lender, (iii) zoning
restrictions and easements, rights of way, licenses, covenants and other
restrictions affecting the use of real property that do not individually or
the aggregate have a Material Adverse Effect on Borrower's ability to use such
real property for its intended purpose in connection with Borrower's business,
(iv) liens securing the payment of taxes or other governmental charges not
delinquent or being contested in good faith and by appropriate proceedings,
liens incurred or deposits made in the ordinary course of Borrower's business
connection with capitalized leases or purchase money security interests for
purchase of Equipment, (vi) liens securing indebtedness owing by any Subsidiary
to Borrower (vii) liens specifically permitted by Lender in writing or set
on Schedule B attached hereto; (viii) pledges or deposits in connection with
worker's compensation, unemployment insurance and other social security
legislation; and (ix) rights of setoff, banker's lien and other similar rights
arising solely by operation of law.
any natural person, corporation, unincorporated organization, trust,
joint stock company, joint venture, association, company, limited or
general partnership, any government or any agency or political subdivision
any government, or any other entity or organization.
mean the Prime Rate in effect from time to time as published in the Wall Street
loan made pursuant to and as limited by Section 2.3.
the period from and including the date of this Agreement to but not including
June 30, 2008.
any corporation, partnership or other entity in which Borrower, directly or
indirectly, owns more than fifty percent (50%) of the stock, capital or income
interests, or other beneficial interests, or which is effectively controlled
definitions of terms herein shall apply equally to the singular and plural
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
“include”, “includes” and “including” shall be deemed to be followed by the
phrase “without limitation”. The word “will” shall be construed to have the same
meaning and effect as the word “shall.” Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed
include such Person's successors and assigns, (c) the words “herein”, “hereof”
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof,
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules
this Agreement and (e) the words “asset” and “property” shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and