1
CREDIT AGREEMENT
DATED AS OF NOVEMBER 14, 1991
AMONG
XXXX INTERNATIONAL CORP.,
TECHNOLOGY/SCIENTIFIC SERVICES, INC.,
XXXX LIFE SCIENCES, INC.,
AND
SOCIETY BANK, NATIONAL ASSOCIATION
THE CENTRAL TRUST COMPANY, N.A.
COMERICA BANK
CORESTATES BANK, N.A.
SECURITY PACIFIC NATIONAL BANK
2
TABLE OF CONTENTS
1. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
1.1. "Administrative Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
1.2. "Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
1.3. "Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
1.4. "Attorneys' Fees" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
1.5. "Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
1.6. "Carrier Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
1.7. "Cash Flow Projections" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
1.8. "Central Trust" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
1.9. "Closing Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
1.10. "Code" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
1.11. "Collateral" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
1.12. "Comerica" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
1.13. "Credit Facilities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
1.14. "Current Assets" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
1.15. "Current Liabilities" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
1.16. "Current Ratio" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
1.17. "Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
1.18. "Default Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
1.19. "Disclosure Schedule" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
1.20. "Domestic Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
1.21. "Equipment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
1.22. "ERISA" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-
1.23. "ERISA Affiliate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-
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TABLE OF CONTENTS
(continued)
1.24. "Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-
1.25. "Excess Cash Flow" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-
1.26. "General Intangibles" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-
1.27. "Governmental Authority" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-
1.28. "Government Contracts" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-
1.29. "Guarantees" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-
1.30. "Guarantors" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
1.31. "Hazardous wastes", "hazardous substances" and "pollutants" or "contaminants" . . . . . . . . . . . -5-
1.32. "Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
1.33. "Intercreditor Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
1.34. "Inventory" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
1.35. "Letter of Credit Agreements" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
1.36. "Majority Lenders" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
1.37. "Multiemployer Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
1.38. "NASA Contract" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
1.39. "Net Mortgage Proceeds" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
1.40. "Noncompetition Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
1.41. "Noncompetition Proceeds" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
1.42. "Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
1.43. "Notice of Borrowing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
1.44. "Obligations" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
1.45. "Old Loan Agreements" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
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(continued)
1.46. "Other Attorneys' Fees" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
1.47. "PBGC" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
1.48. "Permitted Liens" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
1.48.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
1.48.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -7-
1.48.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
1.48.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
1.48.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
1.48.6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
1.48.7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
1.49. "Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
1.50. "Phase I Environmental Site Assessment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
1.51. "Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
1.52. "PNB" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
1.53. "Prime Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
1.54. "Receivables" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
1.55. "Reportable Event" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
1.56. "Responsible Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
1.57. "Revolving Advances" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
1.58. "Revolving Commitment" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
1.59. "Revolving Commitment Percentage" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
1.60. "Revolving Credit Banks" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
1.61. "Revolving Credit Note" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
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(continued)
1.62. "Security Agreements" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-
1.63. "Security Documents" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
1.64. "Security Pacific" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
1.65. "Society" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
1.66. "Subordinated Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
1.67. "Subordination Agreement(s)" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
1.68. "Subsidiaries" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
1.69. "Tangible Net Worth" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-
1.70. "Term Loans" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
1.71. "Term Notes" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
1.72. "Termination Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
1.73. "Withdrawal Liability" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
2. Credit Facilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
2.1. Term Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
2.1.1. Amount and Percentage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
2.2. Short-Term Revolving Credit Facility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
2.2.1. Amount. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
2.2.2. Procedure for Borrowing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
2.2.2.1. Notice of Borrowing. . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
2.2.2.2. Revolving Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
2.2.2.3. Failure to Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
2.3. Interest, Payments, Computations, Fees and Collections. . . . . . . . . . . . . . . . . . . . . . -14-
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(continued)
2.3.1. Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
2.3.2. Interest Payment Dates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-
2.3.3. Default Rate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-
2.3.4. Computations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-
2.3.5. Facility Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -15-
2.3.6. Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
2.3.7. Charge to Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
2.4. Taxes and Levies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
2.5. Payment of the Term Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
2.5.1. Mandatory Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -16-
2.5.2. Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-
3. Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-
3.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-
3.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-
3.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-
4. Representations and Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-
4.1. Organization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -18-
4.2. Recent Adverse Changes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
4.3. Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
4.4. Litigation, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
4.5. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
4.6. Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
4.7. Other Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
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TABLE OF CONTENTS
(continued)
4.8. ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
4.9. Regulation U. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
4.10. Exhibits and Disclosure Schedule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
4.11. Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
4.11.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
4.11.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
4.11.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
4.11.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -21-
4.12. Affirmation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-
5. Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-
5.1. Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-
5.2. Monthly Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-
5.3. Quarterly Cash Flow Projections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -22-
5.4. Quarterly Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-
5.5. Annual Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -23-
5.6. Annual Cash Flow Projections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-
5.7. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-
5.8. Compliance with Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-
5.9. Environmental Audit and Other Environmental Information. . . . . . . . . . . . . . . . . . . . . . -24-
5.10. Business Names and Locations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -25-
5.11. Accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -25-
5.12. Expense Reimbursement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -25-
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(continued)
5.13. ERISA Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -26-
5.14. Noncompetition Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -26-
5.15. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -26-
5.16. Government Contracts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -26-
5.17. Delivery of Other Documents; Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . -27-
5.18. Notices of Event of Default, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
5.19. Quarterly Compliance Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
5.20. Renegotiate the Carrier Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
6. Negative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
6.1. Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
6.2. Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
6.3. Contingencies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
6.3.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
6.3.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
6.3.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
6.4. Net Worth. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
6.5. Current Ratio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
6.6. Redemptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
6.7. Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
6.8. Investments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
6.9. Merger, Acquisition or Sale of Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
6.10. Advances and Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
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9
TABLE OF CONTENTS
(continued)
6.11. Capital Expenditures and Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-
6.12. Transfer of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-
6.13. Payments to Shareholders and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -32-
6.14. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -32-
6.15. Subordinated Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -32-
7. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -32-
7.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -33-
7.1.1. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -33-
7.1.2. Letter of Credit Interest and Commission Payments . . . . . . . . . . . . . . . . -33-
7.1.3. Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -33-
7.1.4. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . -33-
7.1.5. Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -33-
7.1.6. Proceedings Against Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . -34-
7.1.7. Loss, Theft or Substantial Damage to the Collateral . . . . . . . . . . . . . . . -34-
7.1.8. Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -34-
7.1.9. Bankruptcy, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -34-
7.1.10. Revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -35-
7.1.11. Loss of NASA Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -35-
7.1.12. Other Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -35-
7.2. Termination of Commitments; Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -36-
8. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -37-
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TABLE OF CONTENTS
(continued)
8.1. No Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -37-
8.2. Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -37-
8.3. Repayment of Old Loan Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -37-
8.4. Accuracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -37-
8.5. Opinion Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -37-
8.6. Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -37-
8.7. Incumbency Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -38-
8.8. Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -38-
8.9. Subordination Agreement of XXXX International (U.K.) Ltd . . . . . . . . . . . . . . . . . . . . . -38-
8.10. Other Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -38-
9. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -38-
9.1. Post-Closing Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -38-
9.2. Representations and Warranties to Survive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -39-
9.3. Environmental Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -39-
9.4. No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -39-
9.5. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -39-
9.6. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -41-
9.7. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -41-
9.8. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -41-
9.9. Gender, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -42-
9.10. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -42-
9.11. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -42-
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TABLE OF CONTENTS
(continued)
9.12. Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -42-
9.13. Liability of the Administrative Agent and Lenders . . . . . . . . . . . . . . . . . . . . . . . . -42-
9.14. Intercreditor Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -43-
9.15. Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -43-
9.16. Continuing Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -44-
9.17. No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -44-
9.18. No Partnership or Joint Venture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -44-
9.19. Joint and Several Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -44-
9.20. Governing Law and Jurisdiction; Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . -44-
- x -
12
CREDIT AGREEMENT
XXXX INTERNATIONAL CORP. ("XXXX"), TECHNOLOGY/SCIENTIFIC SERVICES, INC.
AND XXXX LIFE SCIENCES, INC. (each individually a "Borrower" and collectively
the "Borrowers" or the "Borrower Group"), and each of the banks listed on the
signature pages hereof (individually each a "Lender" and collectively the
"Lenders"), intending to be legally bound, hereby agree as follows:
1. DEFINITIONS. Each accounting term not defined or modified herein
will have the meaning given to it under generally accepted accounting
principles as applied to any or all of the Borrowers on a consistent basis.
References to consolidating financial statements of XXXX and its Domestic
Subsidiaries means consolidating financial statements of XXXX and its Domestic
Subsidiaries, excluding any investment in or earnings from XXXX International
(U.K.) Ltd., except that XXXX'x investment in XXXX International (U.K.) Ltd.
will be included as an investment, where applicable, and will be carried at the
lower of cost or market value. Where this Agreement contains any financial
reference or requirement with respect to XXXX and its Domestic Subsidiaries,
such reference or requirement shall be applied and construed based on the
consolidating financial statements of XXXX and its Domestic Subsidiaries,
determined in accordance with the immediately preceding sentence of this
Section 1. Capitalized terms used herein and not otherwise defined herein have
the following meanings:
1.1. "Administrative Agent" means PNB or such successor as
may be appointed from time to time pursuant to the terms of the Intercreditor
Agreement.
1.2. "Affiliate" means, with respect to any Person, any
other Person directly or indirectly controlling, controlled by or under common
control with such Person or having similar shareholders owning at least ten
percent (10%) thereof, whether such common control is direct or indirect.
Without limiting the generality of the foregoing, each Borrower's officers,
shareholders, directors, subsidiary corporations (direct and indirect), joint
ventures, and partners will be deemed to be Affiliates for purposes of this
Agreement.
13
1.3. "Agreement" means this Credit Agreement dated as of
November 14, 1991.
1.4. "Attorneys' Fees" means the reasonable value of all
services, and costs, disbursements and expenses related thereto, of the
attorneys (and all paralegals and other staff) employed by the Administrative
Agent on behalf of itself and the Lenders from time to time which fees, costs
and expenses are incurred in any fashion relating to this Agreement, the
documents or instruments delivered with this Agreement or any of the
transactions contemplated by this Agreement including, without limitation, the
assertion, exercise or enforcement of any of the Administrative Agent's and
each Lender's rights or remedies including those in any proceeding under the
United States Bankruptcy Code.
1.5. "Business Day" means a day of the year on which
national banks are not required or authorized to close in Philadelphia,
Pennsylvania.
1.6. "Carrier Note" means the promissory note of
Technology, Incorporated (now known as XXXX International Corp.) dated December
21, 1983 and payable to Carrier Corporation in the original principal amount of
$600,000.
1.7. "Cash Flow Projections" means projections, in
reasonable detail and in form satisfactory to the Lenders, of the expected
sources and expected uses of cash, for time periods specified by the
Administrative Agent, for specified Person(s).
1.8. "Central Trust" means The Central Trust Company, N.A.
1.9. "Closing Date" means the date on which this Agreement
and the Security Documents are executed.
1.10. "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
1.11. "Collateral" means any property, real or personal,
tangible or intangible, now or in the future securing the Obligations.
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14
1.12. "Comerica" means Comerica Bank.
1.13. "Credit Facilities" means the Revolving Commitment
and the Term Loans.
1.14. "Current Assets" has the meaning given to such term
by generally accepted accounting principles applied on a consistent basis.
1.15. "Current Liabilities" has the meaning given to such
term by generally accepted accounting principles applied on a consistent basis
except that it does not include any current payments due (i.e., due within 12
months) of the Credit Facilities and does not include any amounts due under the
Letter of Credit Agreements, or any renewals thereof, or under the agreement
with Central Trust referenced at Section 7.1.2 of this Agreement.
1.16. "Current Ratio" means the ratio of Current Assets to
Current Liabilities.
1.17. "Default" means any event or condition which with the
passage of time or giving of notice, or both, would constitute an Event of
Default.
1.18. "Default Rate" has the meaning given to such term in
Section 2.3.3 of this Agreement.
1.19. "Disclosure Schedule" means the schedule identified
as the Disclosure Schedule, dated as of the Closing Date, executed by XXXX and
delivered to the Lenders at the time of execution of this Agreement.
1.20. "Domestic Subsidiary" means any Subsidiary whose
principal operations and/or assets are within North America. Without limiting
the generality of the foregoing each of XXXX Life Sciences, Inc.,
Technology/Scientific Services, Inc. and the Guarantors will each be deemed to
be a Domestic Subsidiary of XXXX.
1.21. "Equipment" has the meaning given that term in the
Security Documents.
- 3 -
15
1.22. "ERISA" means the Employee Retirement Income Security
Act of 1974, or any successor statute, as amended from time to time.
1.23. "ERISA Affiliate" means any trade or business
(whether or not incorporated) that is a member of a group of which the Borrower
is a member and which is treated as a single employer under Section 414 of the
Code.
1.24. "Event of Default" will mean any of the events listed
in Section 7 of this Agreement.
1.25. "Excess Cash Flow" means, for a specific fiscal year,
the positive difference, if any, obtained from subtracting the Projected Net
Cash Flow for that fiscal year of XXXX and its Domestic Subsidiaries (as
delivered to the Administrative Agent in accordance with Section 5.6 of the
Agreement) from the Actual Net Cash Flow covering the same fiscal year of XXXX
and its Domestic Subsidiaries (based on the financial statements delivered to
the Administrative Agent in accordance with Section 5.5 of the Agreement). For
the purposes hereof, "Actual Net Cash Flow" means the sum of actual sources of
cash (excluding Revolving Advances) for the given year less (a) Net Mortgage
Proceeds, if any; (b) as to the fiscal year ending March 31, 1992, the amount
due under Section 2.5.1(c); (c) as to the fiscal year ending March 31, 1993,
the amount due under Section 2.5.1(d); and (d) the sum of actual uses of cash
for the given year. For the purposes hereof, "Projected Net Cash Flow" means
the sum of projected sources of cash for the given year less the sum of
projected uses of cash for the given year.
1.26. "General Intangibles" has the meaning given that term
in the Security Documents.
1.27. "Governmental Authority" means any nation or
government, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
1.28. "Government Contracts" has the meaning given that
term in Section 5.16 of this Agreement.
- 4 -
16
1.29. "Guarantees" means the guarantees in the form of the
attached Exhibits E-1 through E-3.
1.30. "Guarantors" means XXXX Properties, Inc., XXXX
Properties Ltd. and Technology Incorporated, jointly and severally.
1.31. "Hazardous wastes", "hazardous substances" and
"pollutants" or "contaminants" each has the same meaning given to the
respective terms under any now existing or hereinafter enacted or amended
federal, state or local statute, ordinance, code or regulation designed to
protect the environment, including but not limited to the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601
et. seq. ("CERCLA").
1.32. "Indebtedness" means, without duplication (i) all
obligations (including capitalized lease obligations) which in accordance with
generally accepted accounting principles, consistently applied, would be shown
on a balance sheet as a liability; (ii) all obligations for borrowed money or
for the deferred purchase price of property or services; and (iii) all
reimbursement, payment or similar obligations, absolute, contingent or
otherwise, under acceptance, letter of credit or similar facilities.
1.33. "Intercreditor Agreement" means that certain
agreement among the Lenders, entered into on the Closing Date, called the
Intercreditor Agreement.
1.34. "Inventory" has the meaning given that term in the
Security Documents.
1.35. "Letter of Credit Agreements" means, insofar as they
relate to the existing letters of credit, the Letter of Credit Agreements
copies of which are attached hereto as Exhibits K-1 and K-2, and all extensions
and amendments thereto.
1.36. "Majority Lenders" means at any time at least four of
the Lenders acting jointly.
1.37. "Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate (other than one considered an ERISA Affiliate
- 5 -
17
only pursuant to subsection (m) or (o) of Code Section 414) is making or
accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
1.38. "NASA Contract" means NASA/Xxxxxxx Xxxxx Xxxxxx
Xxxxxxxx Xx. XXX 0-00000 dated March 1, 1991 and all related and successor
contracts.
1.39. "Net Mortgage Proceeds" has the meaning given to such term
in Section 2.5.1 of this Agreement.
1.40. "Noncompetition Agreement" means that Noncompetition
Agreement As Revised entered into on March 2, 1990 among XXXX, Xxxxxxxx Systems
Inc. (subsequently known as XXXX Properties Inc.) and WQ Acquisition Company
(subsequently known as Xxxxxxxx Inc.), in connection with the sale of the
assets and business of Xxxxxxxx Systems Inc. to WQ Acquisitions Company and
the assumption of selected liabilities of Xxxxxxxx Systems Inc. by WQ
Acquisition Company, as such agreement may have been or may hereafter be
revised or amended (if permitted by the Majority Lenders) from time to time,
including, but not limited to the amendments set forth in that certain
Amendments to Asset Purchase Agreement, Lease Agreement and Noncompetition
Agreement As Revised dated as of October 24, 1990 by and between XXXX
Properties Inc. and Xxxxxxxx Inc.
1.41. "Noncompetition Proceeds" means any and all amounts
payable to XXXX pursuant to the terms of the Noncompetition Agreement during
the existence of this Agreement.
1.42. "Notes" means collectively the Revolving Credit Notes
and Term Notes and will include any amendments, extensions and renewals made
thereto from time to time.
1.43. "Notice of Borrowing" means a document in the form of
the attached Exhibit D.
1.44. "Obligations" means all loans, advances, debts,
liabilities, obligations, covenants and duties owing to any or all of the
Lenders from the Borrowers and/or Guarantors or any of them of any kind or
nature arising under this Agreement, any of the Letter of Credit Agreements,
any of the Notes or any of the
- 6 -
18
Security Documents, whether direct or indirect, absolute or contingent, joint
or several, due or to become due, now existing or hereafter arising, and all
charges, expenses, fees, Attorneys' Fees, any other Attorneys' Fees and any
other sums chargeable to any of the Borrowers and/or the Guarantors under any
of the Obligations.
1.45. "Old Loan Agreements" means the line of credit notes
described on Xxxxxxxx X-0 xxxxxxx X-0 attached and the term note with Society
Bank described on Exhibit L-6 attached.
1.46. "Other Attorneys' Fees" means the reasonable value of
all services, costs, disbursements and expenses related thereto, of the
attorneys (and all paralegals and other staff) employed by any of the Lenders
other than the Administrative Agent from time to time which fees, costs,
disbursements and expenses are incurred in any fashion relating to this
Agreement, the documents or instruments delivered with this Agreement or any of
the transactions contemplated by this Agreement including, without limitation,
the assertion, exercise or enforcement of any of the Lender's rights or
remedies including those in any proceeding under the United States Bankruptcy
Code; provided, however, that the Borrowers shall not be obligated to
reimburse, to any Lender, Other Attorneys' Fees of more than $5,000 per Lender
per fiscal year and provided, further, that such $5,000 limitation shall not
apply to Other Attorneys' Fees incurred from and after (a) the Termination Date
(if the Borrowers are otherwise obliged to pay Other Attorneys' Fees after that
date) or (b) the date on which the Revolving Commitment is terminated or the
Notes or Obligations are accelerated under Section 7.2 or 8.1 of this
Agreement.
1.47. "PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
1.48. "Permitted Liens" means:
1.48.1. liens securing the payment of taxes,
either not yet due or the validity of which is being contested in good faith by
appropriate proceedings, and as to which it has set aside on its books adequate
reserves to the extent required by generally accepted accounting principles;
- 7 -
19
1.48.2. deposits under workers' compensation,
unemployment insurance and social security laws, or liens to secure the
performance of bids, tenders, contracts (other than for the repayment of
borrowed money) or leases, or to secure statutory obligations or surety or
appeal bonds, or to secure indemnity, performance or other similar bonds in the
ordinary course of business;
1.48.3. liens imposed by law, such as
carriers' warehousemen's or mechanics' liens, incurred by it in good faith in
the ordinary course of business, and liens arising out of a judgment or award
against it with respect to which it will currently be prosecuting an appeal, a
stay of execution pending such appeal having been secured;
1.48.4. liens in favor of the Lenders under
the Security Documents;
1.48.5. mortgage and lien on real and personal
property of XXXX granted to Gem City Savings Association and recorded at
Mortgage Book 457, Page 220 of the Xxxxxx County, Ohio Recorder's Office to
secure payment of a Note in the original principal amount of $600,000.00;
1.48.6. reservations, exceptions,
encroachments and other similar title exceptions or encumbrances affecting real
properties, provided such do not materially detract from the use or value
thereof as used by the owner thereof;
1.48.7. attachment, judgment and similar liens
provided that execution is effectively stayed pending a good faith contest.
1.49. "Person" means an individual, partnership,
corporation (including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
1.50. "Phase I Environmental Site Assessment" has the
meaning given that term in Section 5.9 of this Agreement.
1.51. "Plan" means any pension plan subject to the
provisions of Title IV of ERISA or Section 412 of the Code and
- 8 -
20
which is maintained for employees of the Borrower or any ERISA Affiliate.
1.52. "PNB" means CoreStates Bank, N.A., a national banking
association which also conducts business as Philadelphia National Bank and as
CoreStates First Pennsylvania Bank.
1.53. "Prime Rate" has the meaning given to such term in
Section 2.3.1 of this Agreement.
1.54. "Receivables" has the meaning given that term in the
Security Documents.
1.55. "Reportable Event" means any reportable event as
defined in Section 4043(b) of ERISA or the regulations issued thereunder with
respect to a Plan (other than a Plan maintained by an ERISA Affiliate which is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code
Section 414).
1.56. "Responsible Officer" means, with respect to any
Person, its financial officer, its chairman, its chief executive officer or its
president.
1.57. "Revolving Advances" has the meaning given that term
in Section 2.2.1 of this Agreement.
1.58. "Revolving Commitment" means the Commitment of each
Revolving Credit Bank set forth in Exhibit B.
1.59. "Revolving Commitment Percentage" means each Lender's
percentage share of any Revolving Advance as set forth opposite such Lender's
name under the column titled "Commitment Percentage" in Exhibit B.
1.60. "Revolving Credit Banks" means each of the Lenders
except Security Pacific.
1.61. "Revolving Credit Note" means the promissory note of
the Borrowers evidencing the Revolving Advances, in the form attached hereto as
Exhibit C.
- 9 -
21
1.62. "Security Agreements" means the Security Agreements
in the form of the attached Exhibits F-1 through F-3 and G-1 through G-3.
1.63. "Security Documents" means the Guarantees, Security
Agreements and the agreements, pledges, mortgages or other documents delivered
by the Borrowers to the Lenders now or in the future to encumber the Collateral
in favor of the Lenders.
1.64. "Security Pacific" means Security Pacific National
Bank.
1.65. "Society" means Society Bank, National Association.
1.66. "Subordinated Debt" means (a) any amount now or
hereafter owed by any Borrower or Domestic Subsidiary to XXXX International
(U.K.) Ltd., including but not limited to that shown on the Disclosure
Schedule, (b) existing Indebtedness under the Carrier Note, and (c) any other
debt: (i) which by its terms specifically provides that it is subordinated to
the Lenders, and (ii) that the Lenders have consented to being incurred by the
Borrowers in accordance with the terms of this Agreement.
1.67. "Subordination Agreement(s)" means (a) the
Subordination Agreement in the form of Exhibit M attached, (b) the
subordination terms of the Carrier Note and (c) any subordination terms or
agreement relating to other Subordinated Debt consented to by the Lenders under
the foregoing Section 1.66.
1.68. "Subsidiaries" means, as to any Person, any
corporation, partnership, trust or other entity of which a fifty percent (50%)
or more of the stock (or equivalent ownership or controlling interest) having
by the terms thereof ordinary voting power to elect a majority of the directors
(if a corporation) or to select the trustee or exercise equivalent controlling
interest (irrespective of whether or not at the time stock of any class or
classes of such corporation or other interest of such entity shall have or
might have voting power by reason of the happening of any contingency), is at
any relevant time directly or indirectly owned or controlled by such Person or
one or more other subsidiaries of such Person or any combination thereof.
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1.69. "Tangible Net Worth", at any particular time, means
(i) the sum of the amounts appearing on the consolidated balance sheet of XXXX
and its Domestic Subsidiaries, with the investment in XXXX International (U.K.)
Ltd. included at the lower of cost or market value as (A) the stated value of
all outstanding stock, (B) capital and retained earnings (positive or negative)
and (C) foreign currency fluctuation adjustments, if any, less (ii) the sum of
(A) the amount of any write-up subsequent to March 31, 1991 in the book value
of any asset owned on such date resulting from the reevaluation thereof
subsequent to such date or any write up of any asset in excess of the costs of
the assets acquired, (B) any amounts by which patents, trademarks, trade names,
organizational expenses and other intangible items of similar nature and good
will appear on the asset side of such balance sheet, (C) any amounts at which
shares of the capital stock of the Borrowers or Subsidiaries appear on the
asset side of such balance sheet, all as of the last day of the month previous
to such particular time, and (D) any amounts for advances, other than
customary and reasonable travel advances, to shareholders, directors, officers,
employees or Affiliates of the Borrowers or Guarantors which appear on the
asset side of the balance sheet. In calculating Tangible Net Worth, losses and
gains resulting from foreign currency fluctuations will be excluded. Unless
otherwise specified in this Agreement, Tangible Net Worth shall be determined
on a consolidated basis for the Borrowers and the Domestic Subsidiaries.
1.70. "Term Loans" has the meaning given to such term in
Section 2.1 of this Agreement.
1.71. "Term Notes" means the promissory notes of the
Borrowers evidencing the Term Loans, in the form attached hereto as Exhibit A-1
through A-5.
1.72. "Termination Date" means July 29, 1994 provided,
however, that the Termination Date will mean December 1, 1993 if the Borrowers
are unable to renegotiate the terms of the Carrier Note as required by Section
5.20 of this Agreement.
1.73. "Withdrawal Liability" means liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title
IV of ERISA.
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All other terms contained in this Agreement and not otherwise defined herein
will, unless the context indicates otherwise, have the meanings provided for by
the Uniform Commercial Code of the Commonwealth of Pennsylvania to the extent
the same are defined therein.
2. CREDIT FACILITIES.
2.1. TERM LOANS.
2.1.1. AMOUNT AND PERCENTAGE. Prior to
entering into this Agreement, each of the Lenders had made available to the
Borrowers (or any of them or their predecessors), pursuant to, inter alia, the
various Old Loan Agreements, loans with outstanding principal balances
aggregating $14,030,000 in amounts and percentages, by such respective Lenders,
as follows:
Amount Percentage
----------- ----------
Society $ 2,870,000 20.4562
Central Trust $ 2,880,000 20.5274
Comerica $ 1,800,000 12.8297
PNB $ 2,880,000 20.5274
Security Pacific $ 3,600,000 25.6593
----------- -------
TOTAL $14,030,000 100.0000
=========== ========
Subject to the provisions of this Agreement and the related documents and
instruments to be executed by the Borrowers and the Guarantors and delivered to
the Administrative Agent and the Lenders herewith, the above-referenced loans
will be restructured into Term Loans which will be evidenced by the Term Notes
(copies of which are set forth in Exhibits A-1 through A-5 attached) each
payable to the order of the respective Lenders. The Term Loans will bear
interest and will be payable in the manner set forth herein and in the Term
Notes, the terms of which are incorporated herein by reference.
2.2. SHORT-TERM REVOLVING CREDIT FACILITY.
2.2.1. AMOUNT. Each of the Revolving Credit
Banks severally agrees to make, subject to the terms and
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conditions hereinafter set forth, short-term advances to the Borrower Group
("Revolving Advances") on any Business Day during the period from the date
hereof to the Business Day preceding the Termination Date in aggregate amounts
not to exceed at any time outstanding for Revolving Advances by a Lender the
amount set forth opposite such Lender's name in Exhibit B under the caption
"Revolving Commitment" nor exceeding at any time for aggregate outstandings for
all Revolving Advances of the Lenders the lesser of (a) the amount which, when
added to the outstanding Term Loan balance, equals $15.0 million or (b) $2.5
million. Within such limits, the Borrower Group may borrow, repay and reborrow
under this Section 2.2 provided, however, that any and all such Revolving
Advances will be available: (i) only to satisfy short-term cash needs which
arise to enable the Borrowers to fulfill requirements of specific contracts and
(ii) for periods of up to 90 days. The Revolving Credit Banks will extend any
Revolving Advance for an additional period of time of up to 60 days if the
Borrowers provide written justification, satisfactory to the Administrative
Agent. By way of example, but not in limitation thereon, a satisfactory
justification for an extension or a new borrowing would be the failure of
prompt receipt of payment by Borrowers from a party with whom a Borrower
contracted, which payment would have theretofore reimbursed Borrowers for a
contract expenditure funded by the Revolving Advance. The Revolving Advances
will be evidenced by the Revolving Credit Note (a copy of which is set forth in
Exhibit C attached) payable to the order of the Administrative Agent on behalf
of the Revolving Credit Banks. The Revolving Advances will bear interest and
will be payable in the manner set forth herein and in the Revolving Credit
Note, the terms of which are incorporated herein by reference.
2.2.2. PROCEDURE FOR BORROWING.
2.2.2.1. NOTICE OF BORROWING. Whenever
the Borrowers desire to request any Revolving Advance, XXXX will give written
notice (or telephonic notice confirmed in writing) to the Administrative Agent
in the form of the attached Exhibit D ("Notice of Borrowing") no later than
10:00 a.m. (Philadelphia time) on a Business Day which is at least two Business
Days prior to the requested funding date. Each Notice of Borrowing must
specify: (a) the requested funding date of the Revolving Advance (which must be
a Business Day); (b) the purpose of the requested Revolving Advance and (c) the
aggregate amount of the requested
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Revolving Advance. Each Notice of Borrowing will be accompanied by such
reports or documents as may reasonably be requested by the Administrative
Agent. Each borrowing will be in an aggregate amount not less than $100,000
and increments of $50,000 in excess thereof. The Administrative Agent will,
within 24 hours receipt thereof, furnish the Revolving Credit Banks with a copy
of each Notice of Borrowing.
2.2.2.2. REVOLVING ADVANCES. Subject
to the terms and conditions of this Agreement the Revolving Credit Banks will
each make their ratable share of such funds requested in the Notice of
Borrowing available to the Administrative Agent on the funding date, by wire
transfer no later than 11:00 a.m. (Philadelphia time), and the Administrative
Agent will credit all funds so received by it to XXXX'x corporate account
maintained by the Administrative Agent on the Funding Date.
2.2.2.3. FAILURE TO FUND. The failure
of any Revolving Credit Bank to make timely the Revolving Advance to be made by
it as part of any borrowing will not relieve it or any other Revolving Credit
Bank of its obligation, if any, hereunder to make its Revolving Advance.
However, no Revolving Credit Bank (nor the Administrative Agent) will be
responsible for the failure of any other Revolving Credit Bank to make a
Revolving Advance requested of such other Revolving Credit Bank.
2.3. INTEREST, PAYMENTS, COMPUTATIONS, FEES AND
COLLECTIONS.
2.3.1. INTEREST. Unless an Event of Default
has occurred and is continuing, the Borrowers shall pay interest on the unpaid
principal amount of all Obligations of the Borrowers to the Lenders pursuant to
this Agreement from the respective dates on which such loans or Revolving
Advances are made, or Obligations incurred, until such principal amounts have
been repaid in full at a fluctuating annual rate equal to the Prime Rate plus:
(a) two percent (2%) when interest is being computed for any days when the
aggregate unpaid principal balance of all Obligations of the Borrowers to the
Lenders is $10,000,000 or more and (b) one and one-half percent (1 1/2%) at
such time as (i) the aggregate unpaid principal balance of all Obligations of
the Borrowers to the Lenders and (ii) the aggregate of all Revolving
Commitments is permanently less than $10,000,000. The Prime Rate
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means the rate of interest established and so designated by PNB from time to
time, as its prime rate (which may not necessarily be the lowest rate of
interest offered by PNB) with changes therein effective immediately upon
changes in said Prime Rate.
2.3.2. INTEREST PAYMENT DATES. All interest
accrued will be payable by the Borrowers in arrears (a) on December 1, 1991 and
on the first Business Day of each succeeding calendar month thereafter and (b)
upon the Termination Date.
2.3.3. DEFAULT RATE. Effective immediately
upon any Event of Default and for so long thereafter as such Event of Default
shall be continuing, both before and after the entry of judgment and/or both
before and after the commencement of a bankruptcy proceeding of any Borrower,
the principal balance of all Obligations then outstanding, and to the extent
permitted by applicable law, any interest payments on the Obligations not paid
when due, shall bear interest at the Default Rate which is equal to four
percent (4%) per annum plus the Prime Rate in effect from time to time.
2.3.4. COMPUTATIONS. All computations of
interest and of fees will be made by the Administrative Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the Administrative Agent
of an interest rate hereunder will be conclusive and binding for all purposes,
absent manifest error. Whenever any payment to be made by the Borrowers
hereunder or under the Notes will be stated to be due on a day other than a
Business Day, such payment will be made on the next succeeding Business Day,
and such extension of time will in such case be included in the computation of
payment of interest or fees, as the case may be.
2.3.5. FACILITY FEES. The Borrowers shall
pay the Administrative Agent, on behalf of the Revolving Credit Banks, a fee in
the amount of $30,000 per year as compensation to the Revolving Credit Banks
for extending the Revolving Commitment. This fee shall be payable in the
amount of $7,500 quarterly in advance (a) upon execution of this Agreement
(covering the time period from the date of execution of this Agreement until
the day before the first Business Day of the following fiscal quarter),
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(b) on the first Business Day of the first fiscal quarter after the execution
of this Agreement and (c) on the first Business Day of each fiscal quarter
thereafter. The fees payable under this Section 2.3.5 are called the "Facility
Fees". The Facility Fees shall be earned by the Revolving Credit Banks in
accordance with their respective Commitment Percentage as set forth opposite
such Revolving Credit Bank's name in Exhibit B. The Facility Fees will
terminate upon the first Business Day of the first quarter after (i) the
repayment of all amounts owed to the Revolving Credit Banks pursuant to the
Revolving Credit Note and (ii) the termination of each Revolving Credit Bank's
Revolving Commitment.
2.3.6. PAYMENTS. The Borrowers will make
each payment to the Administrative Agent hereunder and under the Notes, as the
case may be, not later than 11:00 a.m. (Philadelphia time) on the day when due
by deposit to the Borrower's corporate account with the Administrative Agent in
same day funds. Amounts received by the Administrative Agent after 11:00 a.m.
(Philadelphia time) on any Business Day will be deemed to have been received on
the next Business Day. The Administrative Agent will distribute to each
Lender, its share, if any, of each payment received by the Administrative Agent
no later than 3:00 p.m. (Philadelphia time) on the day after receipt of such
payment from the Borrowers.
2.3.7. CHARGE TO ACCOUNTS. The Borrowers
hereby authorize the Administrative Agent to charge any of the Obligations due
from time to time against any of the Borrowers' accounts with any of the
Lenders.
2.4. TAXES AND LEVIES. Any and all payments by the
Borrowers hereunder or under the Security Documents will be made free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto. The Borrowers agree to pay any present or future stamp, recording or
documentary taxes or similar levies which arise from any payment made hereunder
or under the Security Documents or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or the Security
Documents.
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2.5. PAYMENT OF THE TERM LOANS.
2.5.1. MANDATORY PAYMENTS. The Borrowers
shall make all of the following mandatory payments of the Term Loans in the
following amounts and at the following times: (a) $1,000,000 upon the date of
execution of this Agreement; (b) immediately upon receipt thereof, all
Noncompetition Proceeds; (c) $500,000 on June 30, 1992; (d) $500,000 on June
30, 1993; (e) no later than four (4) months following each fiscal year, fifty
percent (50%) of the Excess Cash Flow for the immediately preceding fiscal
year; (f) all of the Net Mortgage Proceeds; and (g) $1,000,000 on January 31,
1994 provided, however, that the payment from the Borrowers to the Lenders
required under Section 2.5.1(g) of this Agreement will be reduced by all
amounts, up to $1,000,000, received by the Lenders on or before January 31,
1994 by way of (i) Net Mortgage Proceeds (as hereinafter defined) and (ii)
payments made pursuant to Section 2.5.1(e) of this Agreement. All payments
from Noncompetition Proceeds in accordance with sub-section (b) of this Section
2.5.1 and Excess Cash Flow in accordance with sub-section (e) of this Section
2.5.1 shall be applied to the net principal balance due under the Term Loans at
maturity and shall not, except as provided in clause (ii) after subsection (g)
of this Section 2.5.1, postpone the due date of any other payment under the
Term Loans. "Net Mortgage Proceeds" means all of the net proceeds obtained
from the sale of XXXX'x real property in Dayton, Ohio, which is subject to the
first mortgage of Gem City Savings Association described in Section 1.48.5, and
on which the Lenders will be granted the Second Mortgage pursuant to, inter
alia, Section 3.3 of this Agreement, after payment of the first mortgage and
any customary taxes, commissions or charges, and reduced by Income Taxes on
Sale. "Income Taxes on Sale" means the excess, if any, of the estimated
federal and state income tax liability of XXXX for the fiscal year in which the
sale occurs over the estimated payment of federal and state income tax
liability which XXXX would have had for the same year if the sale had not
occurred, in each case as reasonably determined by Deloitte & Touche, or other
independent certified public accountants acceptable to the Borrowers and the
Lenders.
2.5.2. PREPAYMENTS. The Borrowers can prepay
the Term Loans at any time without penalty in increments of $100,000. All
prepayments shall reduce permanently the Term Loans and shall be applied to the
principal installments payable under Section 2.5.1 hereof in the inverse order
of their maturities.
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3. COLLATERAL. The Collateral for the repayment of the Obligations,
which Collateral will be released promptly after all Obligations are repaid to
the Lenders, will include the following pursuant to the following Security
Documents:
3.1. Guarantees by the Guarantors pursuant to one or more
Guarantees in the form attached as Exhibits E-1 through E-3, which Guarantees
will be secured by a first lien on all of the Guarantors' assets which will
include, but not be limited to, Inventory, Receivables, Government Contracts,
Equipment and General Intangibles pursuant to Security Agreements in the form
of the attached Exhibits F-1 through F-3.
3.2. A first lien on all of each Borrower's assets which
will include, but not be limited to, Inventory, Receivables, Government
Contracts (including assignments thereof), Equipment and General Intangibles
pursuant to Security Agreements in the form of the attached Exhibits G-1
through G-3. Notwithstanding anything contained herein or the Security
Documents to the contrary, the Collateral does not include a pledge of the
capital stock of XXXX International (U.K.) Ltd.
3.3. A second mortgage on real property of XXXX in Dayton,
Ohio (subject, only, to the first mortgage of Gem City Savings Association
described in Section 1.48.5), and an assignment of rents and leases and a lien
on fixtures and personal property on such real property pursuant to an Open-End
Mortgage, Assignment of Rents and Leases and Security Agreement in the form of
the attached Exhibit H (the "Second Mortgage"). Notwithstanding the first
sentence of Section 3, the Second Mortgage will be released before the
Obligations are repaid to the Lenders upon (a) a bona fide sale for all cash,
to a party unrelated to the Borrowers, at fair market value, of the property
which is subject to the Second Mortgage, and (b) payment to the Lenders of the
Net Mortgage Proceeds (as defined in Section 2.5.1).
4. REPRESENTATIONS AND WARRANTIES. To induce the Lenders to extend
the Credit Facilities herein contemplated, the Borrowers hereby jointly and
severally represent and warrant as follows:
4.1. ORGANIZATION. Each of the Borrowers and Guarantors
is a corporation duly organized and in good standing
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under the laws of the state in which it is incorporated, and each is duly
qualified in all jurisdictions where required by the conduct of its business or
ownership of its assets and has the power and authority to own and operate its
assets and to conduct its business as is now done.
4.2. RECENT ADVERSE CHANGES. Except as disclosed on the
Disclosure Schedule, since March 31, 1991, none of the Borrowers or
Subsidiaries have suffered any damage, destruction or loss which has adversely
affected its business or assets and no event or condition of any character has
occurred which has materially and adversely affected its assets, liabilities,
business or financial condition, and neither the Borrowers nor any of their
officers have any knowledge of any event or condition which may adversely
affect the assets, liabilities, business or financial condition of any of the
Borrowers or their Subsidiaries.
4.3. TITLE. Except as disclosed on the Disclosure
Schedule and assets disposed of in the ordinary course of business since March
31, 1991, the Borrowers and their Subsidiaries have good and marketable title
to the assets reflected on their respective balance sheets or notes thereon in
their annual audited financial statements as of March 31, 1991 free and clear
from all liens and encumbrances except for (a) current taxes and assessments
not yet due and payable, (b) liens and encumbrances, if any, reflected or noted
on said balance sheets or notes and (c) Permitted Liens.
4.4. LITIGATION, ETC. Except as disclosed on the
Disclosure Schedule, as of the date hereof there are no material actions,
suits, proceedings or governmental investigations pending or, to the knowledge
of the Borrowers or their officers, threatened against any of the Borrowers or
their Subsidiaries which could result in an adverse change in the financial
condition, business or assets of any of the Borrowers or their Subsidiaries and
there is no basis known to the Borrowers or their officers for any such
actions, suits, proceedings or investigations.
4.5. TAXES. Each of the Borrowers and their Subsidiaries
has filed all tax returns and reports required to be filed before the date of
this Agreement and has paid all taxes, assessments and charges imposed upon it
or its property, or which
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it is required to withhold and pay over, to the extent that they were required
to be paid before the date of this Agreement.
4.6. AUTHORITY. The Borrowers and the Guarantors have
full corporate power and authority to enter into the transactions provided for
in this Agreement and have been duly authorized to do so by appropriate action
of their respective boards of directors. This Agreement, the Revolving Credit
Notes, the Term Loan Notes and the Security Documents, when executed and
delivered by the Borrowers and the Guarantors, as applicable, will constitute
the legal, valid and binding obligations of the Borrowers and the Guarantors,
as applicable, enforceable in accordance with their respective terms.
4.7. OTHER DEFAULTS. Except as disclosed on the
Disclosure Schedule, there does not now exist any default or violation by any
of the Borrowers or Guarantors of or under any of the terms, conditions or
obligations of: (a) its respective Articles of Incorporation or
By-Laws/Regulations; (b) any indenture, or deed of trust or mortgage, (c) any
material franchise, permit, contract, agreement, or other instrument to which
it is a party or by which it is bound, the breach of which would have a
material and adverse impact on its financial condition, business or assets; (d)
any agreement or instrument evidencing debt to which it is a party or by which
it is bound; or (e) any law, regulation, ruling, order, injunction, decree,
condition or other requirement applicable to or imposed upon it by any law or
by any Governmental Authority, court or agency; and the consummation of this
Agreement and of the transactions set forth herein will not result in any such
default or violation.
4.8. ERISA. Each Plan maintained for employees of the
Borrowers and Subsidiaries and covered by Title IV of ERISA is in good
standing. No Reportable Event or failure of compliance with the Code has
occurred and is continuing with respect to any Plan.
4.9. REGULATION U. No part of the Revolving Advances will
be used to purchase or carry any Margin Stock (as defined in Reg. U, 12 Code of
Federal Regulations 221).
4.10. EXHIBITS AND DISCLOSURE SCHEDULE. The information
contained in the Exhibits attached hereto and in the
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Disclosure Schedule is complete and correct in all material respects.
4.11. ENVIRONMENTAL MATTERS.
4.11.1. Except as disclosed on the Disclosure
Schedule, to the best of the Borrowers' knowledge, there have been no material
claims, notices, orders or directives on environmental grounds made or
delivered to, pending or served on any of the Borrowers, Guarantors or their
respective agents.
4.11.2. Except as disclosed on the Disclosure
Schedule, to the best of the Borrowers' knowledge, there have not been, are not
now and as of the date of the execution of this Agreement, there will be no
solid waste, hazardous waste, hazardous substances, toxic substances, toxic
chemicals, pollutants or contaminants, underground storage tanks, purposeful
dumps, wastes or pollutants, nor any accidental spills of such in, on or about
any of the assets of any Borrower or Guarantor, real or personal, owned or
leased, and to the best of the Borrowers' knowledge, no solid waste, hazardous
waste, hazardous substances, pollutants, contaminants, wastes or toxic
substance have ever been stored on any real property owned or leased either by
any Borrower or Guarantor or by its lessees, licensees, invitees or
predecessors, except, in each case, those for which appropriate regulatory
permits have been obtained and those which are present in quantities for which
permits are not required under any applicable local, state or federal law, rule
or regulation.
4.11.3. Except as disclosed on the Disclosure
Schedule, to the best of the Borrowers' knowledge, there has been no, is not
now and as of the closing date, there will be no filtering into ground water or
transmission by seepage or other draining or transfer any solid waste,
hazardous substances, hazardous waste, pollutants or contaminants, or toxic
substances which have affected, is now affecting or as of the Closing Date will
affect any of the real property owned or leased by any Borrower or Guarantor or
any sites adjoining such property.
4.11.4. To the best of the Borrowers'
knowledge, each of the Borrowers and Guarantors has obtained all necessary
approvals or satisfactory clearances for use of its assets from all
Governmental Authorities, utility companies, or
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development-related entities, in regard to the use of its assets, the discharge
of chemicals, liquids and emissions, if any, and other chemicals into the
atmosphere, ground water or surface water, from its operations.
4.12. AFFIRMATION. There are no claims, offsets,
counterclaims or defenses against this Agreement, the Term Loans, the Revolving
Advances, the Old Loan Agreements, the Letter of Credit Agreements or any of
the Obligations.
5. AFFIRMATIVE COVENANTS. The Borrowers jointly and severally agree
that from the date of execution of this Agreement until all Obligations to the
Lenders have been fully paid and this Agreement terminated each of the
Borrowers will, and as to Sections 5.1 and 5.7 through 5.10 will cause each of
the Guarantors to:
5.1. BOOKS AND RECORDS. Maintain, and cause each of its
Subsidiaries to maintain, proper books of account and other records and enter
therein complete and accurate entries and records of all of its transactions in
accordance with generally accepted accounting principles and give
representatives of the Lenders access to the books, records and premises of the
Borrowers and the Guarantors at all reasonable times, including permission to
examine, copy and make abstracts from any of such books and records, and to
audit the Collateral, and provide such other information as the Lenders may
from time to time reasonably request. Notwithstanding anything contained
herein to the contrary, the Borrowers do not have to make available to the
Lenders, except in accordance with applicable regulations, any information,
records or documents which are classified by the United States Department of
Defense.
5.2. MONTHLY STATEMENTS. Furnish the Lenders within 45
days after the end of each calendar month, consolidating financial statements
of XXXX and its Domestic Subsidiaries which financial statements shall be (a)
in reasonable detail and in form reasonably satisfactory to the Lenders, (b)
certified by a Responsible Officer of XXXX that such statements are true and
correct to the best of his/her knowledge, and prepared (c) with the investments
in Subsidiaries carried at the lower of cost or market on consolidating balance
sheets, and (d) in all other respects substantially in accordance with
generally accepted
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34
accounting principles applied on a basis consistent with the preceding month's
statements, if any.
5.3. QUARTERLY CASH FLOW PROJECTIONS. Furnish the
Lenders, within 45 days after the end of each fiscal quarter of the first three
fiscal quarters of each year, with Cash Flow Projections of XXXX and its
Domestic Subsidiaries for the remainder of the existing fiscal year (which
projections will not be used in determining Excess Cash Flow for that year).
5.4. QUARTERLY STATEMENTS. Furnish the Lenders, within 45
days after the end of each fiscal quarter of the first three fiscal quarters of
each year, with copies of consolidated financial statements including
consolidating information of XXXX and its Subsidiaries (with the investment in
Subsidiaries carried at the lower of cost or market) for that quarter. These
statements will include a balance sheet statement of operations, statement of
cash flows and a consolidated statement of shareholders' equity. These
financial statements will: (a) be in reasonable detail and in form reasonably
satisfactory to the Lenders; (b) be certified by a Responsible Officer of XXXX
that such statements are true and correct to the best of his/her knowledge; (c)
be prepared with the investments in Subsidiaries carried at cost on
consolidating balance sheets, and (d) in all other respects be substantially in
accordance with generally accepted accounting principles applied on a basis
consistent with the preceding quarter's statements, if any. Included with the
statements will be a certificate setting forth computations in reasonable
detail and satisfactory to the Lenders that demonstrate compliance with
Sections 6.4 and 6.5 hereof and also stating that to the best of such officer's
knowledge, at the end of and during such period, the Borrowers have observed or
performed or satisfied all agreements, orders, decrees or other requirements
applicable to or imposed upon it by any state department or agency regulating
its government contracting activities, except as specified in such certificate.
Such certificates will be in the form of the attached Exhibit I.
5.5. ANNUAL STATEMENTS. Furnish the Lenders within 90
days after the end of each fiscal year with copies of annual audited financial
statements, including consolidating information of XXXX and its Subsidiaries
(with the investment in Subsidiaries carried at the lower of cost or market).
These statements will
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include a balance sheet, statement of operations, statement of cash flows and a
consolidated statement of shareholders' equity. These consolidated and
consolidating financial statements will be accompanied by a report of Deloitte
& Touche or an independent certified public accountant acceptable to the
Borrowers and Lenders. Such report (a) shall be based on the performance of an
audit made in accordance with generally accepted auditing standards and (b)
shall report on consistency of application of accounting principles as may be
required by standards promulgated by the American Institute of Certified Public
Accountants. The report of the independent certified public accountants shall
be substantially in the form as shown in Exhibit Q and altered appropriately to
reflect the facts encountered at the time of the audit. Concurrently with the
delivery of the foregoing financial statements, a Responsible Officer of each
Borrower will deliver to the Lenders a certificate with respect to such annual
statements in the form required by Section 5.4 (Exhibit I), above.
5.6. ANNUAL CASH FLOW PROJECTIONS. Furnish the Lenders
within 90 days after the commencement of each fiscal year with Cash Flow
Projections of XXXX and its Domestic Subsidiaries for that fiscal year (which
projections will be used in determining Excess Cash Flow for that year).
5.7. TAXES. Pay and discharge when due all tax
indebtedness and all taxes, assessments, charges, levies and other liabilities
imposed upon it, its income, profits, property or business, except those which
currently are being contested in good faith by appropriate proceedings and for
which the Borrowers have set aside adequate reserves or made other adequate
provision with respect thereto.
5.8. COMPLIANCE WITH LAWS. Comply in all material
respects with all laws and regulations applicable to it and to the operation of
their business, including without limitation those relating to environmental,
insurance and health matters, and do all things necessary to maintain, renew
and keep in full force and effect their corporate existence and all rights,
permits and franchises necessary to enable it to continue its business.
5.9. ENVIRONMENTAL AUDIT AND OTHER ENVIRONMENTAL
INFORMATION. (a) Immediately notify the Lenders of any material violation, of
which any Borrower or Responsible Officer has direct
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or indirect knowledge, of any rule, regulation, statute, ordinance, or law
relating to public health or the environment; and (b) Within ninety (90) days
of the execution of this Agreement, provide the Lenders, at the Borrowers'
expense, with a written Phase I Environmental Site Assessment, on XXXX'x real
property located at Dayton, Ohio (which property is commonly referred to as the
"Colonel Xxxx" property and is also the same property subject to the mortgage
of Gem City Savings Association described in Section 1.48.5 of this Agreement).
The Phase I Environmental Site Assessment will be conducted by an independent
engineering firm acceptable to the Administrative Agent and will indicate (i)
whether the property contains any hazardous substances, hazardous wastes,
pollutants, contaminants or underground storage tanks and (ii) whether the
property is in compliance with all environmental laws, rules, regulations and
requirements.
5.10. BUSINESS NAMES AND LOCATIONS. (a) Immediately notify
the Lenders of any change in the name under which any Borrower or Guarantor
conducts its business. (b) Keep and maintain all of the Collateral only at the
addresses listed in the Disclosure Schedule and keep the principal place of
business and chief executive office of each Borrower and Guarantor at the
addresses specified in the Disclosure Schedule unless, prior to any Borrower
maintaining any (i) Collateral; (ii) principal place of business or (iii) chief
executive office at any address not listed in the Disclosure Schedule, the
Borrowers shall provide the Administrative Agent with all documents,
certificates, instruments, agreements, statements, etc., executed by the
Borrowers and in recordable form if necessary, in order for the Lenders and the
Administrative Agent to obtain or maintain and continue their first priority
perfected security interest in all Collateral. (c) The Borrowers will notify
the Lenders immediately upon their intent to open or close any place from which
any Borrower or Guarantor conducts business.
5.11. ACCOUNTS. So long as any of the Credit Facilities
are in effect, the Lenders, or any of them, will remain the primary bank(s) of
account of the Borrowers and the Guarantors.
5.12. EXPENSE REIMBURSEMENT. Within ten (10) days of the
rendering of an invoice by the Administrative Agent, reimburse
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the Administrative Agent for (a) all Attorney's Fees incurred by the
Administrative Agent (b) all Other Attorneys' Fees; and (c) all audit fees,
costs and expenses that are incurred in connection with the transactions
contemplated in this Agreement.
5.13. ERISA COMPLIANCE. (a) Comply in all material
respects with the applicable provisions of ERISA and (b) Furnish to the Lenders
as soon as possible, and in any event within 30 days after any request by any
Lender (i) a statement from any Responsible Officer of any of the respective
Borrowers indicating whether said Borrower continues to be in compliance with
the applicable provisions of ERISA and (ii) any other information (including,
without limitation, copies of any writings, documents, etc.) requested by the
Lenders with regard to ERISA compliance or lack thereof.
5.14. NONCOMPETITION PROCEEDS. Immediately pay to Lenders
all Noncompetition Proceeds paid to XXXX pursuant to the terms of the
Noncompetition Agreement, such payment to be treated as a mandatory payment as
provided in Section 2.5.1(b).
5.15. INSURANCE. Maintain insurance with responsible and
reputable insurance companies reasonably acceptable to the Lenders in at least
such amounts and covering at least such risks as are usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Borrowers operate or own such properties. Such
insurance policies shall include a provision precluding their cancellation
prior to thirty (30) days prior written notice to the Lenders. The Borrowers
shall furnish to the Lenders, within 15 days of any request, such evidence of
insurance as the Lenders may reasonably request.
5.16. GOVERNMENT CONTRACTS. (a) Immediately notify the
Lenders if any Borrowers' accounts (as the term "account" is defined by Section
9106 of the Uniform Commercial Code as adopted in the Commonwealth of
Pennsylvania) in excess of $100,000 arise out of contracts with the United
States or any department, agency or instrumentality thereof ("Government
Contracts") and (b) Furnish the Lenders with copies of each such Government
Contract and execute and deliver any instruments and take any steps required by
the Lenders in order that all moneys due and to become due under any such
Government Contract shall be assigned to the
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Lenders and notice given under the Federal Assignment of Claims Act (including
executing and delivering to the Administrative Agent Assignments in the form of
Exhibit N attached hereto).
5.17. DELIVERY OF OTHER DOCUMENTS; FURTHER ASSURANCES.
Execute, acknowledge and deliver to the Administrative Agent such further
assignments, agreements, security agreements, financing statements,
continuation statements, and such other documents, instruments and agreements
as may be necessary or desirable, in the opinion of the Administrative Agent or
its counsel, to perfect the security interests in the Collateral or to prevent
the impairment of any rights of the Lenders or the Administrative Agent
hereunder or under any document or instrument related hereto including the
Guarantees and/or the Security Documents.
5.18. NOTICES OF EVENT OF DEFAULT, ETC.. In the event
that any of the Borrowers shall have acquired actual knowledge of any Event of
Default, or of any event that with notice or lapse of time or both would, if
unremedied, constitute an Event of Default, the Borrowers shall immediately
give notice thereof to the Administrative Agent.
5.19. QUARTERLY COMPLIANCE CERTIFICATES. Furnish the
Lenders, within 45 days after the end of each fiscal quarter of the first three
fiscal quarters of each year and within 90 days of the fourth fiscal quarter of
each year, with a certificate from a Responsible Officer in the form of Exhibit
I which either (a) sets forth that the Borrowers were in compliance, as of the
end of the applicable fiscal quarter, with all terms, conditions and covenants
of this Agreement or (b) identifies all specific terms, conditions and/or
covenants of this Agreement in which the Borrowers are not in compliance.
5.20. RENEGOTIATE THE CARRIER NOTE. On or before March 31,
1992, renegotiate the terms of the Carrier Note so that the principal
installment of Three Hundred Thousand Dollars ($300,000) presently due on
December 21, 1993 does not become due and payable until after August 30, 1994.
6. NEGATIVE COVENANTS. The Borrowers jointly and severally covenant
and agree that from the date of execution of this Agreement until all of the
Obligations have been fully paid and
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this Agreement terminated no Borrower or Guarantor will without the prior
written consent of the Majority Lenders:
6.1. DEBT. Incur any Indebtedness other than: (a) the
Credit Facilities; (b) the existing Indebtedness described in the Disclosure
Schedule; (c) open account obligations incurred in the ordinary course of
business; (d) rental and lease payments as described in Section 6.11; (e) the
Subordinated Debt; (f) insurance premium financing with respect to insurance
required by Section 5.15 of this Agreement; (g) subordinated debt provided that
such debt is subordinated in amount, repayment and in all other respects in
form and substance satisfactory to the Majority Lenders (for the purposes
hereof, debt will be considered subordinated in form satisfactory to the
Majority Lenders if the borrower(s) of such debt enters into a Subordination
Agreement with the creditor of such debt in the form of Exhibit M attached
hereto); (h) normal and reasonable expense accruals in the ordinary course of
business and (i) any future amounts owed Central Trust pursuant to the Letter
of Credit Agreements.
6.2. LIENS. Incur, create, assume, become or be liable in
any way, or suffer to exist any mortgage, pledge, lien, charge or other
encumbrance of any nature whatsoever on any of its assets, now or hereafter
owned, other than Permitted Liens.
6.3. CONTINGENCIES. Fail to comply with Sections 6.4 and
6.5, as modified by this Section 6.3. Notwithstanding anything to the contrary
in the definitions or otherwise in this Agreement, if XXXX furnishes the
Lenders with whatever documentation the Administrative Agent reasonably
requires, then in determining compliance with Section 6.4 and 6.5, calculation
of Tangible Net Worth, Current Assets and Current Liabilities will be adjusted,
in amounts not in excess of those indicated for the respective categories as
specified hereinbelow, to eliminate any accounting entries causing any decrease
in Tangible Net Worth, any decrease in Current Assets and/or any increase in
Current Liabilities resulting from or arising out of any of the following:
6.3.1. Resolution and/or settlement, and efforts in
furtherance thereof, of disputes arising out of the contingency described at
Item 13(a)(1) of the Disclosure Schedule. The maximum cumulative adjustment
resulting from such contingency shall be $2,740,000.
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6.3.2. Future recognition of additional losses
arising out of the contingency described at Item 13(a)(2) of the Disclosure
Schedule. The maximum cumulative adjustment resulting from such future losses
shall be $700,000.
6.3.3. Resolution and/or settlement, and efforts in
furtherance thereof, of the contingency described in Item 13(a)(3) of the
Disclosure Schedule. The maximum cumulative adjustment resulting from such
contingency shall be $500,000.
6.4. NET WORTH. Permit Tangible Net Worth of XXXX and its
Domestic Subsidiaries (modified as provided in Section 6.3, if applicable) to
be less than negative $4,850,000 at any time. In determining compliance with
this Section, Tangible Net Worth, as defined in Section 1.69 and modified by
Section 6.3, if applicable, will be further modified as follows: (a) amounts
owed by XXXX to XXXX International (U.K.) Ltd. and its Subsidiaries will be
added and (b) XXXX'x investment in XXXX International (U.K.) Ltd. and its
Subsidiaries will be subtracted. The minimum consolidated Tangible Net Worth
requirement for XXXX and its Domestic Subsidiaries (negative $4,850,000) will
be increased ninety (90) days after the end of each fiscal year of XXXX,
effective as of the prior fiscal year end, by (i) twenty percent (20%) (i.e.,
for a total of seventy percent (70%)) until such time as the Tangible Net Worth
requirement increases to negative $4,600,000 and (ii) fifty percent (50%)
thereafter of the earnings of XXXX and its Domestic Subsidiaries (excluding
earnings of XXXX International (U.K.) Ltd. and its Subsidiaries) for that
fiscal year, adjusted as follows: any interest expense for that fiscal year
due XXXX International (U.K.) Ltd. from XXXX on XXXX'x indebtedness to XXXX
International (U.K.) Ltd., as accrued at the end of each fiscal year of XXXX,
determined on an after-tax basis, will be added to the earnings of XXXX.
6.5. CURRENT RATIO. Permit the ratio of consolidated
Current Assets of XXXX and its Domestic Subsidiaries to consolidated Current
Liabilities of XXXX and its Domestic Subsidiaries (in each case modified as
provided in Section 6.3, if applicable) to be less than 1.5 to 1 at any time.
6.6. REDEMPTIONS. Purchase, retire, redeem or
otherwise acquire for value, directly or indirectly, any shares of its capital
stock now or hereafter outstanding.
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6.7. DIVIDENDS. Declare or pay dividends of any kind on
any shares of capital stock now or hereafter outstanding or make any other
distribution of cash or property to its shareholders other than: (a) cash
dividends to XXXX from its Subsidiaries (b) stock dividends to shareholders of
XXXX and (c) cash dividends in lieu of fractional share stock dividends to
shareholders of XXXX provided that such cash dividends shall not exceed, in the
aggregate, $20,000 per fiscal year.
6.8. INVESTMENTS. Except as disclosed on the Disclosure
Schedule, purchase or hold beneficially any stock, other securities or
evidences of indebtedness of, or make any investment or acquire any interest
whatsoever in, any other Person, firm or corporation other than short term
investments of excess working capital invested in one or more of the following:
(a) investments (of one year or less) in direct or guaranteed obligations of
the United States, or any agencies thereof; and (b) investments (of one year or
less) in certificates of deposit of banks or trust companies organized under
the laws of the United States or any jurisdiction thereof, provided that such
banks or trust companies: (i) are insured by the Federal Deposit Insurance
Corporation; (ii) have capital in excess of $250,000,000 and (iii) are Lenders.
Notwithstanding anything to the contrary contained in this Section 6.8, the
Borrowers (a) may maintain any investment in any Subsidiary which investment
(i) exists at the date of execution of this Agreement and (ii) is disclosed on
the Disclosure Schedule executed and delivered in accordance with the terms of
this Agreement or (b) may make advances in accordance with Section 6.10.
6.9. MERGER, ACQUISITION OR SALE OF ASSETS. Merge or
consolidate with or into any other entity or acquire all or substantially all
the assets of any Person, firm, partnership, joint venture or corporation, or
sell, lease or otherwise dispose of any of its assets (or permit any Domestic
Subsidiary to sell, lease or otherwise dispose of its assets) except for (a)
dispositions of Inventory in the ordinary course of business or (b) sales or
other dispositions for consideration of fixed assets with an aggregate market
value for the Borrowers and Domestic Subsidiaries as a group not in excess of
$50,000 in any fiscal year.
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6.10. ADVANCES AND LOANS. Lend money, give credit,
contribute capital or make advances to any Person, including, without
limitation, officers, directors, employees or Affiliates of any Borrower, other
than (a) advances needed in the ordinary course of business not to exceed
$25,000 per employee or $200,000 in the aggregate when cumulated with all other
such employee advances by the Borrowers and/or Guarantors and other reasonable
and ordinary advances to cover reasonable expenses of employees, such as travel
expenses and (b) advances or capital contributions by the Borrowers to the
Guarantors or any other Borrower to the extent reasonably necessary to fund
reasonable business expenses of the Guarantors or other Borrowers (other than
those described in Section 6.10(a), above) incurred by such Guarantors or other
Borrowers in the ordinary course of their respective businesses as now
conducted.
6.11. CAPITAL EXPENDITURES AND LEASES. Make any capital
expenditures or acquisitions, including lease expenditures, which, when
calculated in accordance with generally accepted accounting principles,
consistently applied, and added to all other capital expenditures, acquisitions
and annual lease payments of the Borrowers and Domestic Subsidiaries, or any of
them, would exceed in the aggregate during any fiscal year during the term of
this Credit Agreement and any extensions and renewals thereof the amounts set
forth below:
Fiscal Year Maximum Expenditures
----------- --------------------
1992 $2.2 million
1993 2.6 million
1994 3.0 million
Each Fiscal
Year after 1994 3.2 million
6.12. TRANSFER OF COLLATERAL. Transfer, or permit the
transfer, to another location of any of the Collateral or the books and records
related to any of the Collateral; provided, however, that a Borrower may
transfer Collateral or the books and records related thereto to another
location if such Borrower has: (a) provided to the Lenders prior to such
transfer an opinion addressed to the Lenders in the form and substance and
written by counsel acceptable to the Majority Lenders to the effect that the
Lenders' perfected security interest in the Collateral will (i)
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not be affected by such move or, (ii) if it will be affected, setting forth the
steps necessary to continue the Lenders' perfected security interest together
with the commencement and completion of such steps by the Borrower at its sole
expense and (b) otherwise complied, in all respects, with Section 5.10 of this
Agreement.
6.13. PAYMENTS TO SHAREHOLDERS AND AFFILIATES. Except for
(a) payments permitted by Sections 6.8 and 6.10 and (b) reasonable and
customary compensation as reasonably determined by XXXX'x compensation
committee, make any payment or distribution (including, without limitation,
debt repayment, payment for goods or services, or otherwise) to its
shareholders or to any Affiliate or any Person related to its shareholders
without the prior written consent of the Majority Lenders. Notwithstanding
anything to the contrary provided in this Section 6.13 or in Section 6.14, the
Borrowers may make payment for goods or services (including legal services)
obtained in the ordinary course of business for normal commercial transactions
and XXXX may use noncash dividends from XXXX International (U.K.) Ltd. and the
U.K. Inland Revenue advance corporation tax ("ACT") refund to repay in
accordance with its terms, a loan existing at the Closing Date from XXXX
International (U.K.) Ltd.
6.14. TRANSACTIONS WITH AFFILIATES. Enter into any
transaction, including, without limitation, any purchase, sale, transfer, lease
or exchange of property or the rendering of any service, with any Affiliate
unless such transaction is otherwise permitted under this Agreement, is in the
ordinary course of such Borrower's or Guarantor's business and is on fair and
reasonable terms no less favorable to such Borrower or Guarantor than it would
obtain in a comparable arm's length transaction with a non-Affiliate.
6.15. SUBORDINATED DEBT. Make any payment on any
Subordinated Debt; provided, however, that, (so long as no Default or Event of
Default exists at the time of such payment or would exist after giving effect
thereto), XXXX may pay the (a) regularly scheduled annual principal
installments of $100,000 due under the terms of the Carrier Note on December
21, 1991; (b) the regularly scheduled semi-annual interest payments when due
under the terms of the Carrier Note; (c) the regularly scheduled interest
payment, when due under any subordinated debt permitted by Section 6.1(g)
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of this Agreement and (d) payments permitted by Section 6.13 of this Agreement.
7. EVENTS OF DEFAULT.
7.1. Each of the following shall be an event of default
("Event of Default"):
7.1.1. NOTES. The non-payment of any
principal amount of any of the Notes or any borrowings when due, whether by
acceleration or otherwise, or the non-payment of any other amount payable under
this Agreement or of any interest upon any of the Notes or any borrowings
within 5 days of when the same is due;
7.1.2. LETTER OF CREDIT INTEREST AND
COMMISSION PAYMENTS. The non-payment of any interest or letter of credit
commissions due Central Trust, within five days of when the same is due in
accordance with the terms of that certain agreement of even date herewith
between XXXX and Central Trust, a copy of which is attached hereto as Exhibit
P.
7.1.3. COVENANTS. The default in the due
observance of any other affirmative covenant or agreement to be kept or
performed by the Borrowers or any Guarantor under the terms of this Agreement
or any of the Security Documents and the failure or inability of any of the
Borrowers or any of the Guarantors to cure such default within 30 days of the
occurrence thereof; provided that such 30-day grace period will not apply to:
(a) any default which in the Majority Lenders' good faith determination is
incapable of cure, (b) any default that has previously occurred more than two
(2) times, (c) any default in any negative covenants, (d) any payment default,
(e) any failure to maintain insurance or (f) any failure to permit inspection
of the Collateral or of the books and records of any of the Borrowers or
Guarantors;
7.1.4. REPRESENTATIONS AND WARRANTIES. Any
representation or warranty made by the Borrowers or any Guarantor in this
Agreement, in any of the Security Documents or in any report, certificate,
opinion (including the Disclosure Schedule or any opinion of counsel to the
Borrowers or the Guarantors), financial statement or other instrument furnished
in connection
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with the Obligations is false or erroneous in any material respect or any
material breach thereof has been committed;
7.1.5. OBLIGATIONS. Except as provided in
Sections 7.1.1, 7.1.2 and 7.1.3 above, the default by any of the Borrowers or
Guarantors in the due observance of any other covenant or agreement to be kept
or performed by any of the Borrowers or Guarantors under the terms of any of
the Obligations to any Lender and the lapse of any applicable cure period
provided in such obligations with respect to such default, or, if so defined
therein, the occurrence of any Event of Default or Default (as such terms are
defined in the Obligations) under any of such obligations;
7.1.6. PROCEEDINGS AGAINST COLLATERAL. The
commencement of any foreclosure proceedings, proceedings in aid of execution,
attachment actions, levies against, or the filing by any taxing authority of a
lien against any of the Collateral, except those liens being diligently
contested in good faith which in the aggregate do not exceed $100,000;
7.1.7. LOSS, THEFT OR SUBSTANTIAL DAMAGE TO
THE COLLATERAL. In addition to the rights of the Lenders to deal with proceeds
of insurance as provided in the Security Documents, the loss, theft or
substantial damage to Collateral if the result of such occurrence (singly or in
the aggregate) is the failure or inability of any of the Borrowers or
Guarantors to resume substantially normal operation of its business within 30
days of the date of such occurrence;
7.1.8. JUDGMENTS. The entry of: (a) any
final and unappealable judgment for the payment of money involving more than
$100,000 against any Borrower or any Guarantor and the failure by such Borrower
or Guarantor to discharge the same, or cause it to be discharged, within 10
days from the date of the order, decree or process under which or pursuant to
which such judgment was entered, or (b) any appealable judgment for the payment
of money involving more than $100,000 against any Borrower or Guarantor and the
failure of such Borrower or Guarantor to secure a stay of execution pending
appeal of such judgment.
7.1.9. BANKRUPTCY, ETC. Any Borrower or any
Guarantor dissolves or is the subject of any dissolution, a
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46
winding up or liquidation, or any Borrower or Guarantor: (a) makes a general
assignment for the benefit of creditors; (b) files a petition in bankruptcy,
for a reorganization or an arrangement, or for a receiver, trustee or similar
creditors' representative for the property or assets of any Borrower or
Guarantor or any part thereof, or any other proceeding under any federal or
state insolvency law, or any such petition is filed against any Borrower or
Guarantor and either (i) is not contested by such Borrower or Guarantor or (ii)
if contested, is not dismissed or discharged within 60 days after it was filed;
7.1.10. REVOCATION. The revocation or
asserted revocation or limitation in whole or in part of any Guarantee or
Subordination Agreement;
7.1.11. LOSS OF NASA CONTRACT. The
cancellation, suspension or loss of more than 75% of the expected net revenues,
for the twelve month period following the cancellation, suspension or loss of
the NASA Contract unless the Borrowers demonstrate, to the satisfaction of the
Majority Lenders, within thirty (30) days of the date any Borrower or any
Responsible Officer becomes aware of such cancellation, suspension or loss,
that such cancellation, suspension or loss will not prevent the Borrowers' from
meeting all of their Obligations under this Agreement.
7.1.12. OTHER INDEBTEDNESS. A default with
respect to any Indebtedness in excess of $100,000 singly or in the aggregate of
any Borrower or Guarantor (other than to a Lender pursuant to the Credit
Facilities), if the effect of such default is to accelerate the maturity of
such Indebtedness or to permit the holder thereof to cause such Indebtedness to
become due prior to the stated maturity thereof, or if any Indebtedness in
excess of $100,000 of any Borrower or Guarantor for borrowed money (other than
to the Lenders pursuant to this Credit Agreement) is not paid when due and
payable, whether at the due date thereof or a date fixed for prepayment or
otherwise after the expiration of any applicable grace period. Notwithstanding
anything contained in this Section 7.1.12 to the contrary, (a) any draw, call,
demand for payment, etc. by Central Trust under the Letter of Credit Agreements
will not be an Event of Default pursuant to this Section 7.1.12 and (b) XXXX'x
existing violations of an agreement with First Tennessee Bank ("First Tennessee
Agreement"), which
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47
existing violations are set forth in a letter dated July 19, 1991 a copy of
which is attached hereto as Exhibit O, will not be an Event of Default pursuant
to this Section 7.1.12 provided that XXXX uses its best efforts to negotiate an
amendment to the First Tennessee Agreement to amend the covenants causing the
existing violations.
7.2. TERMINATION OF COMMITMENTS; ACCELERATION. (a) If
any Event of Default specified in Section 7.1.9 shall occur and be continuing,
unless such Event of Default is waived as provided in Section 9.7, (i) the
Revolving Commitment and the obligations of the Revolving Credit Banks to make
Revolving Advances hereunder shall immediately terminate and (ii) the entire
unpaid amount of the Notes, all interest accrued and unpaid thereon and all
other amounts and Obligations payable hereunder shall become and be forthwith
due and payable, without presentment, demand, protest or notice of any kind,
all of which are hereby expressly waived by Borrowers. (b) If any Lender is
served with any writ, warrant, notice of levy or similar process for the
purpose of attaching, garnishing, seizing or levying on any deposit or other
property of any Borrower or Guarantor to satisfy or secure a claim of the party
on whose behalf such process is served (the "process claim"), a portion of the
principal amount of the Notes, the interest accrued and unpaid thereon and the
other amounts and Obligations payable hereunder equal to an amount which is
equal to the greater of (i) the aggregate amount (whether in the form of
deposits or otherwise) then owed to the Borrowers and Guarantors against which
the process claim is asserted by the Lender on which such process is served
(the "offsettable amount") or (ii) the amount of the process claim (the greater
of such amounts being hereinafter called the "accelerated amount") shall become
and be immediately due and payable, without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived by Borrowers, and
the accelerated amount shall be deemed to have been immediately and
automatically set off against the offsettable amount. (c) If any Event of
Default (other than those specified in Section 7.1.9) shall occur and be
continuing, the Administrative Agent (with the consent or at the request of the
Majority Lenders) may, by notice to the Borrowers, (i) declare the Revolving
Commitment to be terminated, whereupon the Revolving Commitment and the
obligations of the Revolving Credit Banks to make Revolving Advances hereunder
shall forthwith terminate, and
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48
(ii) declare the entire unpaid principal amount of the Notes, all interest
accrued and unpaid thereon and all other amounts and Obligations payable
hereunder to be forthwith due and payable, whereupon the Notes, all such
accrued interest and all such amounts and Obligations shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by Borrowers.
Notwithstanding anything to the contrary herein, if any Event of Default under
Section 7.1.2 shall occur and be continuing, Central Trust may, by notice to
the Administrative Agent, require the Administrative Agent to declare the
Revolving Commitment to be terminated, whereupon the Revolving Commitment and
the obligations of the Revolving Credit Banks to make Revolving Advances
hereunder shall forthwith terminate.
8. CONDITIONS PRECEDENT. The Revolving Credit Banks' obligation to
make the initial or any subsequent Revolving Advance pursuant to Section 2.2 of
this Agreement is subject to the conditions that:
8.1. NO DEFAULTS. There has not been a determination by
the Majority Lenders, pursuant to Section 7.2(a), that the Revolving Credit
Commitment is terminated.
8.2. FEES. The Administrative Agent has received payment
from the Borrowers of all Facility Fees, Attorneys Fees and Other Attorneys'
Fees then due.
8.3. REPAYMENT OF OLD LOAN AGREEMENTS. On the Closing
Date, the Old Loan Agreements have been repaid in full (without any proceeds
from Revolving Advances) and the Term Loans aggregate no more than $13,030,000.
8.4. ACCURACY. The representations, affirmative
covenants, negative covenants and warranties contained in this Agreement, the
Disclosure Schedule, the Exhibits attached hereto and in the Security Documents
are true as though made on and as of the day of any request for Revolving
Advance and any borrowing.
8.5. OPINION LETTER. On the Closing Date, the Lenders
have received an opinion of counsel (or opinions of counsel) for the Borrowers
and Guarantors in form and substance and from counsel acceptable to the
Lenders.
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8.6. RESOLUTIONS. On the Closing Date, the Lenders have
been furnished copies, certified by the respective secretary or assistant
secretary of the Borrowers and Guarantors, of resolutions of the respective
Boards of Directors of the Borrowers and Guarantors authorizing the execution
of this Agreement, the Notes and the Security Documents.
8.7. INCUMBENCY CERTIFICATES. On the Closing Date, the
Lenders have been furnished copies, certified in writing by the secretary or an
assistant secretary of each of the Borrowers and the Guarantors, as to the
names and signatures of the respective officers who are authorized to sign this
Agreement and the Notes and the other documents, instruments or certificates to
be executed and delivered pursuant hereto. The Administrative Agent and each
Lender may conclusively rely on such certificate until it receives a further
certificate by the secretary or an assistant secretary amending the prior
certificate.
8.8. CONSENTS. On the closing date, the Lenders shall
have received copies of all consents which any Borrower or any Guarantor must
obtain in connection with the transactions contemplated hereby.
8.9. SUBORDINATION AGREEMENT OF XXXX INTERNATIONAL (U.K.) LTD.
On the Closing Date, the Lenders shall have received the Subordination
Agreement of XXXX International (U.K.) Ltd. which shall be substantially in the
form of Exhibit R attached hereto.
8.10. OTHER DOCUMENTS. On the Closing Date, the Lenders
have received copies of all other documents, including the Notes, the Security
Documents and the agreement between XXXX and Central Trust dated of even date
herewith with respect to letters of credit (a copy of which is attached hereto
as Exhibit P), which they may have reasonably required in connection with the
transactions provided for in this Agreement.
9. GENERAL.
9.1. POST-CLOSING EXPENSES. To the extent that the
Administrative Agent incurs any costs or expenses in protecting or enforcing
its rights (or any of the Lender's rights) in the Collateral or observing or
performing any of the conditions or
- 38 -
50
obligations of the Borrowers thereunder, including but not limited to
reasonable Attorneys' Fees and the costs and expenses of litigation, such costs
and expenses will be due on demand, will be included in the Obligations and
will bear interest from the date such costs or expenses are paid by the
Administrative Agent.
9.2. REPRESENTATIONS AND WARRANTIES TO SURVIVE. All
representations, warranties, covenants and agreements made by the Borrowers
herein and in the Security Documents will survive the execution and delivery of
this Agreement, the Security Documents and the issuance of the Notes.
9.3. ENVIRONMENTAL INDEMNIFICATION. The Borrowers assume
any liability or obligation of, or claims asserted against the Lenders for
loss, damage, fines, penalties, claims or duty to clean-up or dispose of wastes
or materials on or relating to any of its assets, real or personal, owned or
leased, regardless of any inspections of such assets made by the Lenders prior
to the consummation of this transaction or as a result of any conveyance of
title to the Lenders by foreclosure, deed in lieu of foreclosure, or otherwise.
Each of the Borrowers agrees to remain fully liable and will indemnify and hold
harmless the Lenders from any costs, expenses, clean-up costs, waste disposal
costs, litigation costs, fines, penalties, including without limitation those
costs, expenses, penalties and fines within the meaning of CERCLA, and other
related liabilities.
9.4. NO WAIVER; CUMULATIVE REMEDIES. No failure or delay
on the part of the Administrative Agent or any Lender in exercising any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy hereunder. No waiver of any provision of this Agreement or any of the
Security Documents shall be effective unless the same shall be in writing and
signed by all of the Lenders, except as provided in Section 9.7 hereof. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
9.5. NOTICES. All notices, demands, requests, consents or
approvals required hereunder will be in writing (including telegraphic, telex,
facsimile or cable communication) and mailed (by certified or registered mail
through the United
- 39 -
51
States Postal Service or by overnight delivery through an internationally
recognized overnight courier service), telegraphed, telexed, transmitted,
cabled or delivered to such party at the address set forth below (or at such
other address as such party may specify to the other party in writing). All
such notices and communications will, when mailed, telegraphed, telexed,
transmitted or cabled, be effective when deposited in the mails, delivered to
the telegraph company, confirmed by telex answerback, transmitted by telecopier
or delivered to the cable company, respectively.
To the Borrowers: XXXX International Corp.
0 Xxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxx
Telecopier No.: (000) 000-0000
To the Lenders: The Central Trust Company, N.A.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxx
Vice President
Telecopier No.: (000) 000-0000
Comerica Bank
Corporate Banking Center
4 Gem Xxxxx
Xxxxx xxx Xxxx Xxxxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
Corporate Banking Officer
Telecopier No.: (000) 000-0000
CoreStates Bank, N.A.
Credit Support Division
FC 1-3-15-95
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Vice President
Telecopier No.: (000) 000-0000
- 40 -
52
Security Pacific National Bank
Special Assets Department
H11-53
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Vice President
Telecopier No.: (000) 000-0000
Society Bank, National Association
00 X. Xxxx Xxxxxx, Xxxxx Xxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxx
Vice President
Telecopier No.: (000) 000-0000
9.6. SUCCESSORS AND ASSIGNS. This Agreement will be
binding upon and inure to the benefit of the Borrowers and the Lenders and
their respective successors and assigns, provided, however, that none of the
Borrowers may assign this Agreement in whole or in part without the prior
written consent of the Administrative Agent and all of the Lenders and provided
further that no consent of any Borrower will be required to any assignment by
any Lender in whole or in part.
9.7. AMENDMENTS AND WAIVERS. The provisions of this
Agreement may be modified or amended only by a written agreement entered into
by Borrowers and the Lenders and may be waived only by a written waiver signed
by the Administrative Agent on behalf of the Lenders. Except for (a) waivers
of any payment default, (b) an increase in the amount of the Credit Facilities,
(c) a change or modification of any applicable or required: (i) interest rate;
(ii) fee; or (iii) repayment requirement, (d) release of Collateral, or (e) an
extension of the Termination Date, all of which require unanimous consent of
all Lenders, the provisions of this Agreement can be modified with the consent
of the Majority Lenders provided, however, that no waiver of an Event of
Default under Section 7.1.2 of this Agreement will be effective without the
prior written consent of Central Trust. No such waiver, modification or
amendment shall extend to or affect any obligation not expressly waived,
modified or amended, or impair any right of the Lenders related to such
obligation.
- 41 -
53
9.8. ILLEGALITY. If fulfillment of any provision hereof
or any transaction related hereto or of any provision of the Notes or the
Security Documents, at the time performance of such provision is due, involves
transcending the limit of validity prescribed by law, then ipso facto, the
obligation to be fulfilled will be reduced to the limit of such validity; and
if any clause or provisions herein contained other than the provisions hereof
pertaining to repayment of the Obligations operates or would prospectively
operate to invalidate this Agreement in whole or in part, then such clause or
provision only will be void, as though not herein contained, and the remainder
of this Agreement will remain operative and in full force and effect; and if
such provision pertains to repayment of the Obligations, then, at the option of
the Lenders, all of the Obligations will become immediately due and payable.
9.9. GENDER, ETC. Whenever used herein, the singular
number will include the plural, the plural the singular and the use of the
masculine, feminine or neuter gender will include all genders.
9.10. HEADINGS. The headings in this Agreement are for
convenience only and will not limit or otherwise affect any of the terms
hereof.
9.11. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed will be deemed to be an
original and all of which taken together will constitute one and the same
agreement.
9.12. REMEDIES CUMULATIVE. No single or partial exercise
of any right or remedy by any of the Lenders will preclude any other or further
exercise thereof or the exercise of any other right or remedy by any Lender.
All remedies hereunder and in any instrument or document evidencing, securing,
guaranteeing or relating to any Obligation or now or hereafter existing at law
or in equity or by statute are cumulative and none of them will be exclusive of
the others or any other remedy. All such rights and remedies may be exercised
separately, successively, concurrently, independently or cumulatively from time
to time and as often and in such order as each of the Lenders may deem
appropriate.
- 42 -
54
9.13. LIABILITY OF THE ADMINISTRATIVE AGENT AND LENDERS.
Except for gross negligence and willful misconduct, the Borrowers hereby agree
that the Administrative Agent and the Lenders will not be chargeable for any
negligence, mistake, act or omission of any accountant, examiner, agent or
attorney selected by the Administrative Agent or the Lenders in making
examinations, investigations or collections, or otherwise in protecting or
realizing upon any lien or security interest or any other interest in the
Collateral or other security for the Obligations. In performing any of its
actions or duties under this Agreement, the Security Documents, the
Intercreditor Agreement or otherwise, the Borrowers hereby agree that the
Administrative Agent acts solely as Administrative Agent of the Lenders and
does not assume or have any obligation or duty toward or agency relationship
with or for any Borrower or Guarantor.
9.14. INTERCREDITOR AGREEMENT. The provisions of the
Intercreditor Agreement are solely for the benefit of the Administrative Agent
and the Lenders, and may at any time or times by changed by the Lenders as they
may elect without necessity of notice to or consent or approval by any
Borrower, Guarantor or other Person (other than the Lenders); and none of the
Borrowers or Guarantors shall have any right to rely on or enforce any of the
provisions of the Intercreditor Agreement. In performing its actions and
duties under the Intercreditor Agreement, the Credit Agreement or any of the
Security Documents, the Administrative Agent acts solely as Administrative
Agent of the Lenders and does not assume or have any obligation toward or
agency relationship with or for any Borrower or Guarantor.
9.15. INDEMNITY. The Borrowers will release, indemnify,
defend and hold harmless the Administrative Agent, the Lenders, their
respective directors, officers, counsel and employees, from and against all
claims, demands, liabilities, judgments, losses, damages, costs and expenses,
joint or several (including all accounting fees and Attorneys' Fees reasonably
incurred), that any such indemnified party may incur arising under or by reason
of this Agreement, the Obligations, Security Documents, Disclosure Schedule or
Collateral, or any act hereunder or thereunder or with respect hereto or
thereto except the willful misconduct or gross negligence of such indemnified
party. Without limiting the generality of the foregoing, the Borrowers agree
that if, after receipt by the Administrative Agent or any Lender of any payment
of all or any part of the Obligations, demand is made at
- 43 -
55
any time upon the Administrative Agent or any Lender for the repayment or
recovery of any amount or amounts received by it in payment or on account of
the Obligations and the Administrative Agent or the Lenders repay all or any
part of such amount or amounts by reason of any judgment, decree or order of
any court or administrative body, or by reason of any settlement or compromise
of any such demand, this Agreement will continue in full force and effect and
the Borrowers will be liable, and will indemnify, defend and hold harmless the
Administrative Agent and the Lenders for the amount or amounts so repaid. The
provisions of this Section 9.15 will be and remain effective notwithstanding
any contrary action which may have been taken by any Borrower in reliance upon
such payment, and any such contrary action so taken will be without prejudice
to the Administrative Agent's or any Lender's rights under this Agreement and
will be deemed to have been conditioned upon such payment having become final
and irrevocable. The provisions of this Section will survive the termination
of this Agreement.
9.16. CONTINUING AGREEMENT. This Agreement is and is
intended to be a continuing Agreement and will remain in full force and effect
until the Obligations are finally and irrevocably paid in full and the Credit
Facilities are terminated.
9.17. NO THIRD PARTY BENEFICIARIES. Nothing express or
implied herein is intended or will be construed to confer upon or give any
Person, firm or corporation, other than the parties hereto, any right or remedy
hereunder or by reasons hereof.
9.18. NO PARTNERSHIP OR JOINT VENTURE. Nothing contained
herein or in any of the agreements or transactions contemplated hereby is
intended or will be constructed to create any relationship other than as
expressly stated herein or therein and will not create any joint venture,
partnership or other relationship.
9.19. JOINT AND SEVERAL LIABILITY. All covenants,
representations and obligations of the Borrowers in and under this Agreement
will be joint and several.
9.20. GOVERNING LAW AND JURISDICTION; WAIVER OF JURY TRIAL.
THIS AGREEMENT HAS BEEN EXECUTED, DELIVERED AND ACCEPTED AT AND WILL BE DEEMED
TO HAVE BEEN MADE AT PHILADELPHIA, PENNSYLVANIA AND WILL BE INTERPRETED AND THE
RIGHTS AND
- 44 -
56
LIABILITIES OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO
THIS AGREEMENT OR THE OBLIGATIONS MAY BE BROUGHT IN ANY COURT(S) OF THE
COMMONWEALTH OF PENNSYLVANIA, OR OF THE UNITED STATES OF AMERICA FOR THE
EASTERN DISTRICT OF PENNSYLVANIA, AND THE BORROWERS HEREBY ACCEPT, GENERALLY,
IRREVOCABLY AND UNCONDITIONALLY, THE JURISDICTION OF ANY SUCH COURT AND CONSENT
THAT ANY SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL DIRECTED TO BORROWERS
AT THE ADDRESS SET FORTH HEREIN FOR NOTICES AND SERVICE SO MADE WILL BE DEEMED
TO BE COMPLETED FIVE (5) BUSINESS DAYS AFTER THE SAME HAS BEEN DEPOSITED IN
U.S. MAILS, POSTAGE PREPAID. THE BORROWERS WAIVE ANY OBJECTION BASED ON FORUM
NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN
ANY SUCH JURISDICTION. NOTHING HEREIN CONTAINED SHALL AFFECT THE RIGHT OF ANY
LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS, ENFORCE ANY JUDGMENT OR OTHERWISE PROCEED AGAINST ANY
BORROWER, ANY SECURITY OR ANY PROPERTY OF ANY BORROWER IN ANY OTHER
JURISDICTION. THE BORROWERS AND THE LENDERS EACH WAIVE ANY RIGHT TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE SECURITY
DOCUMENTS OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH AGREEMENTS.
Signed at Philadelphia, Pennsylvania, effective as of November 14, 1991.
XXXX INTERNATIONAL CORP., AS
BORROWER
By:
----------------------------
Print Name:
--------------------
Title:
-------------------------
TECHNOLOGY/SCIENTIFIC SERVICES,
INC., AS BORROWER
By:
----------------------------
Print Name:
--------------------
Title:
-------------------------
- 45 -
57
XXXX LIFE SCIENCES, INC., AS
BORROWER
By:
----------------------------
Print Name:
--------------------
Title:
-------------------------
SOCIETY BANK, NATIONAL
ASSOCIATION, AS LENDER
By:
----------------------------
Print Name:
--------------------
Title:
-------------------------
THE CENTRAL TRUST COMPANY, N.A.,
AS LENDER
By:
----------------------------
Print Name:
--------------------
Title:
-------------------------
COMERICA BANK, AS LENDER
By:
----------------------------
Print Name:
--------------------
Title:
-------------------------
CORESTATES BANK, N.A., AS LENDER AND
ADMINISTRATIVE AGENT
By:
---------------------------
Print Name: Xxxxxx X. Xxxxx
Title: Vice President
- 46 -
58
SECURITY PACIFIC NATIONAL BANK,
AS LENDER
By:
----------------------------
Print Name:
--------------------
Title:
-------------------------
- 47 -
59
AMENDMENT NO. 1 dated November 22, 1991 to CREDIT AGREEMENT dated as
of November 14, 1991 among XXXX INTERNATIONAL CORP., TECHNOLOGY/SCIENTIFIC
SERVICES, INC., XXXX LIFE SCIENCES, INC. (collectively, "Borrowers") and
SOCIETY BANK, NATIONAL ASSOCIATION, THE CENTRAL TRUST COMPANY, N.A., COMERICA
BANK, CORESTATES BANK, N.A., a national banking association which also conducts
business as Philadelphia National Bank and as CoreStates First Pennsylvania
Bank, and SECURITY PACIFIC NATIONAL BANK (collectively, "Lenders" and each
individually a "Lender") and CoreStates Bank, N.A. as Administrative Agent.
ARTICLE I
BACKGROUND
The Borrowers, the Lenders and the Administrative Agent acknowledge
that:
1. On or about November 14, 1991, the parties entered into,
inter alia, a Credit Agreement. The parties now wish to amend and supplement
the Credit Agreement to provide for a change in the definition of the term
"Excess Cash Flow".
ARTICLE II
AMENDMENT
1. The Credit Agreement is amended, effective as of November 22,
1991, by deleting paragraph 1.25 in its entirety and inserting, in its place,
the following:
"1.25. "Excess Cash Flow" means, for a specific fiscal
year, the positive difference, if any, obtained from subtracting the positive
Projected Net Cash Flow (or zero (0) if Projected Net Cash Flow is negative)
for that fiscal year of XXXX and its Domestic Subsidiaries (as delivered to the
Administrative Agent in accordance with Section 5.6 of the Agreement) from the
Actual Net Cash Flow covering the same fiscal year of XXXX and its Domestic
Subsidiaries (based on the financial statements delivered to the Administrative
Agent in accordance with Section 5.5 of the Agreement). For the purposes
hereof, "Actual Net Cash Flow" means the sum of actual sources of cash
(excluding Revolving Advances) for the given year less (a) Net Mortgage
Proceeds, if any; (b) as to the fiscal year ending March 31, 1992, the amount
due under Section 2.5.1(c); (c) as to the fiscal
60
year ending March 31, 1993, the amount due under Section 2.5.1(d); and (d) the
sum of actual uses of cash for the given year. For the purposes hereof,
"Projected Net Cash Flow" means the sum of projected sources of cash for the
given year less the sum of projected uses of cash for the given year."
XXXX INTERNATIONAL CORP., AS
BORROWER
By:
-------------------------------
Title:
----------------------------
TECHNOLOGY/SCIENTIFIC SERVICES,
INC., AS BORROWER
By:
-------------------------------
Title:
----------------------------
XXXX LIFE SCIENCES, INC., AS
BORROWER
By:
-------------------------------
Title:
----------------------------
CORESTATES BANK, N.A., ON
ITS OWN BEHALF AS LENDER AND
AS ADMINISTRATIVE AGENT
By:
-------------------------------
Title:
----------------------------
SOCIETY BANK, NATIONAL
ASSOCIATION, AS LENDER
By:
-------------------------------
Title:
----------------------------
-2-
61
THE CENTRAL TRUST COMPANY, N.A., AS LENDER
By:
-------------------------------
Title:
----------------------------
COMERICA BANK, AS LENDER
By:
-------------------------------
Title:
----------------------------
SECURITY PACIFIC NATIONAL BANK, AS
LENDER
By:
-------------------------------
Title:
----------------------------
-3-
62
TERM NOTE
$2,870,000 Philadelphia, Pennsylvania
November 14, 1991
FOR VALUE RECEIVED, the undersigned XXXX INTERNATIONAL CORP.,
TECHNOLOGY/SCIENTIFIC SERVICES, INC. and XXXX LIFE SCIENCES INC. (hereinafter
referred to jointly and severally as the "Borrowers"), promise to pay, on or
before the Termination Date (as defined in the Credit Agreement hereinafter
mentioned), to the order of SOCIETY BANK, NATIONAL ASSOCIATION (THE "BANK"),
the principal sum of Two Million Eight Hundred Seventy Thousand Dollars
($2,870,000).
The Borrowers further promise to pay to the order of the Bank
interest on the principal amounts of this Term Note until such principal
amounts have been repaid in full, payable at the times and rates provided in
the Credit Agreement hereinafter mentioned, and payable for the account of Bank
at the Administrative Agent (as defined in the Credit Agreement hereinafter
mentioned) or at such other place as may be requested by Bank.
This is one of the Term Notes mentioned in, and is entitled to
the benefits of, the Credit Agreement dated as of even date herewith (the
"Credit Agreement") and all other instruments, documents and agreements
executed and delivered by the Borrowers therewith, between the Borrowers, the
Lenders (as defined in the Credit Agreement) and CoreStates Bank, N.A. as
Administrative Agent.
All obligations and agreements of the Borrowers hereunder are joint and
several.
THIS TERM NOTE HAS BEEN EXECUTED AND DELIVERED IN CONNECTION
WITH A COMMERCIAL TRANSACTION. THIS TERM NOTE HAS BEEN EXECUTED, DELIVERED AND
ACCEPTED AT AND WILL BE DEEMED TO HAVE BEEN MADE AT PHILADELPHIA, PENNSYLVANIA
AND WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, AND
THE BORROWERS HEREBY AGREE TO THE JURISDICTION OF ANY OF THE COURTS OF THE
COMMONWEALTH OF PENNSYLVANIA, OR OF THE UNITED STATES OF AMERICA FOR THE
EASTERN DISTRICT OF PENNSYLVANIA, AND ACCEPT, GENERALLY AND UNCONDITIONALLY,
THE JURISDICTION OF ANY SUCH COURT. THE BORROWERS
63
CONSENT THAT ANY SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL DIRECTED TO
THE BORROWERS AT THE ADDRESS OF THE BORROWERS SET FORTH IN THE CREDIT AGREEMENT
FOR NOTICES AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED FIVE (5)
BUSINESS DAYS AFTER THE SAME HAS BEEN DEPOSITED IN U.S. MAILS, POSTAGE PREPAID.
THE BORROWERS WAIVE ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY
OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY SUCH JURISDICTION.
NOTHING CONTAINED HEREIN WILL AFFECT THE RIGHT OF THE BANK TO SERVE PROCESS IN
ANY MANNER PERMITTED BY LAW OR PREVENT THE BANK FROM BRINGING ANY ACTION,
ENFORCING ANY JUDGMENT OR EXERCISING ANY RIGHTS AGAINST ANY BORROWER OR AGAINST
ANY SECURITY OR AGAINST ANY PROPERTY OF ANY BORROWER WITHIN ANY OTHER
JURISDICTION.
Waiver of Jury Trial. THE BORROWERS WAIVE ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS TERM NOTE, THE SECURITY
DOCUMENTS OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH AGREEMENTS.
Confession of Judgment. The Borrowers hereby irrevocably authorize any
attorney-at-law to appear in any court of record in or of the Commonwealth of
Pennsylvania, or in any other state or territory of the United States, at any
time after the indebtedness evidenced by this Term Note becomes due, whether by
acceleration or otherwise, to waive the issuing and service of process and to
confess a judgment against the undersigned in favor of the Bank and/or any
assignee or holder hereof for the amount of principal and interest and expenses
then appearing due from the undersigned under this Term Note and the Credit
Agreement, together with costs of suit and thereupon to release all errors and
waive all right of appeal or stays of execution in any court of record. No
such judgment or judgments against less than all of the undersigned will be a
bar to any subsequent judgment or judgments against any one or more of the
undersigned against whom judgment has not been obtained hereon, this being a
joint and several warrant of attorney to confess judgment.
64
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
XXXX INTERNATIONAL CORP.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
TECHNOLOGY/SCIENTIFIC SERVICES, INC.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
- 3 -
65
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
XXXX LIFE SCIENCES INC.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
- 4 -
66
EXHIBIT A-2
TERM NOTE
$2,880,000 Philadelphia, Pennsylvania
November 14, 1991
FOR VALUE RECEIVED, the undersigned XXXX INTERNATIONAL CORP.,
TECHNOLOGY/SCIENTIFIC SERVICES, INC. and XXXX LIFE SCIENCES INC. (hereinafter
referred to jointly and severally as the "Borrowers"), promise to pay, on or
before the Termination Date (as defined in the Credit Agreement hereinafter
mentioned), to the order of THE CENTRAL TRUST COMPANY, N.A. (THE "BANK"), the
principal sum of Two Million Eight Hundred Eighty Thousand Dollars
($2,880,000).
The Borrowers further promise to pay to the order of the Bank
interest on the principal amounts of this Term Note until such principal
amounts have been repaid in full, payable at the times and rates provided in
the Credit Agreement hereinafter mentioned, and payable for the account of Bank
at the Administrative Agent (as defined in the Credit Agreement hereinafter
mentioned) or at such other place as may be requested by Bank.
This is one of the Term Notes mentioned in, and is entitled to
the benefits of, the Credit Agreement dated as of even date herewith (the
"Credit Agreement") and all other instruments, documents and agreements
executed and delivered by the Borrowers therewith, between the Borrowers, the
Lenders (as defined in the Credit Agreement) and CoreStates Bank, N.A. as
Administrative Agent.
All obligations and agreements of the Borrowers hereunder are joint and
several.
THIS TERM NOTE HAS BEEN EXECUTED AND DELIVERED IN CONNECTION WITH A
COMMERCIAL TRANSACTION.
THIS TERM NOTE HAS BEEN EXECUTED, DELIVERED AND ACCEPTED AT AND
WILL BE DEEMED TO HAVE BEEN MADE AT PHILADELPHIA, PENNSYLVANIA AND WILL BE
INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE
- 1 -
67
PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA, AND THE BORROWERS HEREBY AGREE TO THE JURISDICTION OF ANY OF THE
COURTS OF THE COMMONWEALTH OF PENNSYLVANIA, OR OF THE UNITED STATES OF AMERICA
FOR THE EASTERN DISTRICT OF PENNSYLVANIA, AND ACCEPT, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF ANY SUCH COURT. THE BORROWERS CONSENT
THAT ANY SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL DIRECTED TO THE
BORROWERS AT THE ADDRESS OF THE BORROWERS SET FORTH IN THE CREDIT AGREEMENT FOR
NOTICES AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED FIVE (5) BUSINESS
DAYS AFTER THE SAME HAS BEEN DEPOSITED IN U.S. MAILS, POSTAGE PREPAID. THE
BORROWERS WAIVE ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION
TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY SUCH JURISDICTION. NOTHING
CONTAINED HEREIN WILL AFFECT THE RIGHT OF THE BANK TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW OR PREVENT THE BANK FROM BRINGING ANY ACTION, ENFORCING
ANY JUDGMENT OR EXERCISING ANY RIGHTS AGAINST ANY BORROWER OR AGAINST ANY
SECURITY OR AGAINST ANY PROPERTY OF ANY BORROWER WITHIN ANY OTHER JURISDICTION.
Waiver of Jury Trial. THE BORROWERS WAIVE ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS TERM NOTE, THE SECURITY
DOCUMENTS OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH AGREEMENTS.
Confession of Judgment. The Borrowers hereby irrevocably authorize any
attorney-at-law to appear in any court of record in or of the Commonwealth of
Pennsylvania, or in any other state or territory of the United States, at any
time after the indebtedness evidenced by this Term Note becomes due, whether by
acceleration or otherwise, to waive the issuing and service of process and to
confess a judgment against the undersigned in favor of the Bank and/or any
assignee or holder hereof for the amount of principal and interest and expenses
then appearing due from the undersigned under this Term Note and the Credit
Agreement, together with costs of suit and thereupon to release all errors and
waive all right of appeal or stays of execution in any court of record. No
such judgment or judgments against less than all of the undersigned will be a
bar to any subsequent judgment or judgments against any one or more of the
undersigned against whom judgment has not been obtained hereon, this being a
joint and several warrant of attorney to confess judgment.
68
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
XXXX INTERNATIONAL CORP.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
TECHNOLOGY/SCIENTIFIC SERVICES, INC.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
- 3 -
69
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
XXXX LIFE SCIENCES INC.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
- 4 -
70
TERM NOTE
$1,800,000 Philadelphia, Pennsylvania
November 14, 1991
FOR VALUE RECEIVED, the undersigned XXXX INTERNATIONAL CORP.,
TECHNOLOGY/SCIENTIFIC SERVICES, INC. and XXXX LIFE SCIENCES INC. (hereinafter
referred to jointly and severally as the "Borrowers"), promise to pay, on or
before the Termination Date (as defined in the Credit Agreement hereinafter
mentioned), to the order of COMERICA BANK (THE "BANK"), the principal sum of
One Million Eight Hundred Thousand Dollars ($1,800,000).
The Borrowers further promise to pay to the order of the Bank
interest on the principal amounts of this Term Note until such principal
amounts have been repaid in full, payable at the times and rates provided in
the Credit Agreement hereinafter mentioned, and payable for the account of Bank
at the Administrative Agent (as defined in the Credit Agreement hereinafter
mentioned) or at such other place as may be requested by Bank.
This is one of the Term Notes mentioned in, and is entitled to
the benefits of, the Credit Agreement dated as of even date herewith (the
"Credit Agreement") and all other instruments, documents and agreements
executed and delivered by the Borrowers therewith, between the Borrowers, the
Lenders (as defined in the Credit Agreement) and CoreStates Bank, N.A. as
Administrative Agent.
All obligations and agreements of the Borrowers hereunder are joint and
several.
THIS TERM NOTE HAS BEEN EXECUTED AND DELIVERED IN CONNECTION
WITH A COMMERCIAL TRANSACTION.
THIS TERM NOTE HAS BEEN EXECUTED, DELIVERED AND ACCEPTED AT AND
WILL BE DEEMED TO HAVE BEEN MADE AT PHILADELPHIA, PENNSYLVANIA AND WILL BE
INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE
- 1 -
71
PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA, AND THE BORROWERS HEREBY AGREE TO THE JURISDICTION OF ANY OF THE
COURTS OF THE COMMONWEALTH OF PENNSYLVANIA, OR OF THE UNITED STATES OF AMERICA
FOR THE EASTERN DISTRICT OF PENNSYLVANIA, AND ACCEPT, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF ANY SUCH COURT. THE BORROWERS CONSENT
THAT ANY SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL DIRECTED TO THE
BORROWERS AT THE ADDRESS OF THE BORROWERS SET FORTH IN THE CREDIT AGREEMENT FOR
NOTICES AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED FIVE (5) BUSINESS
DAYS AFTER THE SAME HAS BEEN DEPOSITED IN U.S. MAILS, POSTAGE PREPAID. THE
BORROWERS WAIVE ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION
TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY SUCH JURISDICTION. NOTHING
CONTAINED HEREIN WILL AFFECT THE RIGHT OF THE BANK TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW OR PREVENT THE BANK FROM BRINGING ANY ACTION, ENFORCING
ANY JUDGMENT OR EXERCISING ANY RIGHTS AGAINST ANY BORROWER OR AGAINST ANY
SECURITY OR AGAINST ANY PROPERTY OF ANY BORROWER WITHIN ANY OTHER JURISDICTION.
Waiver of Jury Trial. THE BORROWERS WAIVE ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS TERM NOTE, THE SECURITY
DOCUMENTS OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH AGREEMENTS.
Confession of Judgment. The Borrowers hereby irrevocably authorize any
attorney-at-law to appear in any court of record in or of the Commonwealth of
Pennsylvania, or in any other state or territory of the United States, at any
time after the indebtedness evidenced by this Term Note becomes due, whether by
acceleration or otherwise, to waive the issuing and service of process and to
confess a judgment against the undersigned in favor of the Bank and/or any
assignee or holder hereof for the amount of principal and interest and expenses
then appearing due from the undersigned under this Term Note and the Credit
Agreement, together with costs of suit and thereupon to release all errors and
waive all right of appeal or stays of execution in any court of record. No
such judgment or judgments against less than all of the undersigned will be a
bar to any subsequent judgment or judgments against any one or more of the
undersigned against whom judgment has not been obtained hereon, this being a
joint and several warrant of attorney to confess judgment.
72
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
XXXX INTERNATIONAL CORP.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
TECHNOLOGY/SCIENTIFIC SERVICES, INC.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
- 3 -
73
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
XXXX LIFE SCIENCES INC.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
- 4 -
74
TERM NOTE
$2,880,000 Philadelphia, Pennsylvania
November 14
FOR VALUE RECEIVED, the undersigned XXXX INTERNATIONAL CORP.,
TECHNOLOGY/SCIENTIFIC SERVICES, INC. and XXXX LIFE SCIENCES INC. (hereinafter
referred to jointly and severally as the "Borrowers"), promise to pay, on or
before the Termination Date (as defined in the Credit Agreement hereinafter
mentioned), to the order of CORESTATES BANK, N.A. (THE "BANK"), A NATIONAL
BANKING ASSOCIATION WHICH ALSO CONDUCTS BUSINESS AS PHILADELPHIA NATIONAL BANK
AND AS CORESTATES FIRST PENNSYLVANIA BANK, the principal sum of Two Million
Eight Hundred Eighty Thousand Dollars ($2,880,000).
The Borrowers further promise to pay to the order of the Bank
interest on the principal amounts of this Term Note until such principal
amounts have been repaid in full, payable at the times and rates provided in
the Credit Agreement hereinafter mentioned, and payable for the account of Bank
at the Administrative Agent (as defined in the Credit Agreement hereinafter
mentioned) or at such other place as may be requested by Bank.
This is one of the Term Notes mentioned in, and is entitled to
the benefits of, the Credit Agreement dated as of even date herewith (the
"Credit Agreement") and all other instruments, documents and agreements
executed and delivered by the Borrowers therewith, between the Borrowers, the
Lenders (as defined in the Credit Agreement) and CoreStates Bank, N.A. as
Administrative Agent.
All obligations and agreements of the Borrowers hereunder are joint and
several.
THIS TERM NOTE HAS BEEN EXECUTED AND DELIVERED IN CONNECTION
WITH A COMMERCIAL TRANSACTION.
- 1 -
75
THIS TERM NOTE HAS BEEN EXECUTED, DELIVERED AND ACCEPTED AT AND
WILL BE DEEMED TO HAVE BEEN MADE AT PHILADELPHIA, PENNSYLVANIA AND WILL BE
INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, AND THE BORROWERS
HEREBY AGREE TO THE JURISDICTION OF ANY OF THE COURTS OF THE COMMONWEALTH OF
PENNSYLVANIA, OR OF THE UNITED STATES OF AMERICA FOR THE EASTERN DISTRICT OF
PENNSYLVANIA, AND ACCEPT, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
ANY SUCH COURT. THE BORROWERS CONSENT THAT ANY SERVICE OF PROCESS MAY BE MADE
BY CERTIFIED MAIL DIRECTED TO THE BORROWERS AT THE ADDRESS OF THE BORROWERS SET
FORTH IN THE CREDIT AGREEMENT FOR NOTICES AND SERVICE SO MADE WILL BE DEEMED TO
BE COMPLETED FIVE (5) BUSINESS DAYS AFTER THE SAME HAS BEEN DEPOSITED IN U.S.
MAILS, POSTAGE PREPAID. THE BORROWERS WAIVE ANY OBJECTION BASED ON FORUM NON
CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY
SUCH JURISDICTION. NOTHING CONTAINED HEREIN WILL AFFECT THE RIGHT OF THE BANK
TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR PREVENT THE BANK FROM
BRINGING ANY ACTION, ENFORCING ANY JUDGMENT OR EXERCISING ANY RIGHTS AGAINST
ANY BORROWER OR AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF ANY BORROWER
WITHIN ANY OTHER JURISDICTION.
Waiver of Jury Trial. THE BORROWERS WAIVE ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS TERM NOTE, THE SECURITY
DOCUMENTS OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH AGREEMENTS.
Confession of Judgment. The Borrowers hereby irrevocably authorize any
attorney-at-law to appear in any court of record in or of the Commonwealth of
Pennsylvania, or in any other state or territory of the United States, at any
time after the indebtedness evidenced by this Term Note becomes due, whether by
acceleration or otherwise, to waive the issuing and service of process and to
confess a judgment against the undersigned in favor of the Bank and/or any
assignee or holder hereof for the amount of principal and interest and expenses
then appearing due from the undersigned under this Term Note and the Credit
Agreement, together with costs of suit and thereupon to release all errors and
waive all right of appeal or stays of execution in any court of record. No
such judgment or judgments against less than all of the undersigned will be a
bar to any subsequent judgment or judgments against any one or more of the
undersigned against whom judgment has not been obtained hereon, this being a
joint and several warrant of attorney to confess judgment.
76
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
XXXX INTERNATIONAL CORP.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
TECHNOLOGY/SCIENTIFIC SERVICES, INC.
By:
--------------------------------
Print Name:
----------------------
Title:
-----------------------------
- 3 -
77
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
XXXX LIFE SCIENCES INC.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
- 4 -
78
TERM NOTE
$3,600,000 Philadelphia, Pennsylvania
November 14, 1991
FOR VALUE RECEIVED, the undersigned XXXX INTERNATIONAL CORP.,
TECHNOLOGY/SCIENTIFIC SERVICES, INC. and XXXX LIFE SCIENCES INC. (hereinafter
referred to jointly and severally as the "Borrowers"), promise to pay, on or
before the Termination Date (as defined in the Credit Agreement hereinafter
mentioned), to the order of SECURITY PACIFIC NATIONAL BANK (THE "BANK"), the
principal sum of Three Million Six Hundred Thousand Dollars ($3,600,000).
The Borrowers further promise to pay to the order of the Bank
interest on the principal amounts of this Term Note until such principal
amounts have been repaid in full, payable at the times and rates provided in
the Credit Agreement hereinafter mentioned, and payable for the account of Bank
at the Administrative Agent (as defined in the Credit Agreement hereinafter
mentioned) or at such other place as may be requested by Bank.
This is one of the Term Notes mentioned in, and is entitled to
the benefits of, the Credit Agreement dated as of even date herewith (the
"Credit Agreement") and all other instruments, documents and agreements
executed and delivered by the Borrowers therewith, between the Borrowers, the
Lenders (as defined in the Credit Agreement) and CoreStates Bank, N.A. as
Administrative Agent.
All obligations and agreements of the Borrowers hereunder are joint and
several.
THIS TERM NOTE HAS BEEN EXECUTED AND DELIVERED IN CONNECTION
WITH A COMMERCIAL TRANSACTION.
THIS TERM NOTE HAS BEEN EXECUTED, DELIVERED AND ACCEPTED AT AND
WILL BE DEEMED TO HAVE BEEN MADE AT PHILADELPHIA, PENNSYLVANIA AND WILL BE
INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE
79
COMMONWEALTH OF PENNSYLVANIA, AND THE BORROWERS HEREBY AGREE TO THE
JURISDICTION OF ANY OF THE COURTS OF THE COMMONWEALTH OF PENNSYLVANIA, OR OF
THE UNITED STATES OF AMERICA FOR THE EASTERN DISTRICT OF PENNSYLVANIA, AND
ACCEPT, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF ANY SUCH COURT. THE
BORROWERS CONSENT THAT ANY SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL
DIRECTED TO THE BORROWERS AT THE ADDRESS OF THE BORROWERS SET FORTH IN THE
CREDIT AGREEMENT FOR NOTICES AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED
FIVE (5) BUSINESS DAYS AFTER THE SAME HAS BEEN DEPOSITED IN U.S. MAILS, POSTAGE
PREPAID. THE BORROWERS WAIVE ANY OBJECTION BASED ON FORUM NON CONVENIENS AND
ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY SUCH
JURISDICTION. NOTHING CONTAINED HEREIN WILL AFFECT THE RIGHT OF THE BANK TO
SERVE PROCESS IN ANY MANNER PERMITTED BY LAW OR PREVENT THE BANK FROM BRINGING
ANY ACTION, ENFORCING ANY JUDGMENT OR EXERCISING ANY RIGHTS AGAINST ANY
BORROWER OR AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF ANY BORROWER WITHIN
ANY OTHER JURISDICTION.
Waiver of Jury Trial. THE BORROWERS WAIVE ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS TERM NOTE, THE SECURITY
DOCUMENTS OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH AGREEMENTS.
Confession of Judgment. The Borrowers hereby irrevocably
authorize any attorney-at-law to appear in any court of record in or of the
Commonwealth of Pennsylvania, or in any other state or territory of the United
States, at any time after the indebtedness evidenced by this Term Note becomes
due, whether by acceleration or otherwise, to waive the issuing and service of
process and to confess a judgment against the undersigned in favor of the Bank
and/or any assignee or holder hereof for the amount of principal and interest
and expenses then appearing due from the undersigned under this Term Note and
the Credit Agreement, together with costs of suit and thereupon to release all
errors and waive all right of appeal or stays of execution in any court of
record. No such judgment or judgments against less than all of the undersigned
will be a bar to any subsequent judgment or judgments against any one or more
of the undersigned against whom judgment has not been obtained hereon, this
being a joint and several warrant of attorney to confess judgment.
- 2 -
80
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
XXXX INTERNATIONAL CORP.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
TECHNOLOGY/SCIENTIFIC SERVICES, INC.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
- 3 -
81
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO
NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE
TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE
USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE
CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
XXXX LIFE SCIENCES INC.
By:
--------------------------------
Print Name:
------------------------
Title:
-----------------------------
- 4 -
82
REVOLVING CREDIT NOTE
$2,500,000 Philadelphia, Pennsylvania
November 14, 1991
FOR VALUE RECEIVED, the undersigned XXXX INTERNATIONAL CORP.,
TECHNOLOGY/SCIENTIFIC SERVICES, INC. and XXXX LIFE SCIENCES INC. (hereinafter
referred to jointly and severally as the "Borrowers"), promise to pay, on or
before the Termination Date (as defined in the Credit Agreement hereinafter
mentioned), to the order of CORESTATES BANK, N.A., A NATIONAL BANKING
ASSOCIATION WHICH ALSO CONDUCTS BUSINESS AS PHILADELPHIA NATIONAL BANK AND AS
CORESTATES FIRST PENNSYLVANIA BANK, as administrative agent ("Administrative
Agent") for: (1) Society Bank, National Association; (2) The Central Trust
Company, N.A.; (3) Comerica Bank; and (4) CoreStates Bank, N.A. (collectively,
the "Revolving Credit Banks"), the principal sum of Two Million Five Hundred
Thousand Dollars ($2,500,000) or, if less, the aggregate principal amount (as
shown by the records of the Administrative Agent hereinafter mentioned, which
records shall constitute prima facie evidence thereof) of all revolving credit
advances (the "Revolving Credit Advances") made by the Revolving Credit Banks
to the Borrowers pursuant to the Credit Agreement hereinafter mentioned.
The Borrowers further promise to pay to the order of the
Administrative Agent interest on the principal amounts of the Revolving Credit
Advances, from the respective dates on which the Revolving Credit Advances are
made until such principal amounts have been repaid in full, payable at the
times and rates provided in the Credit Agreement hereinafter mentioned.
This is the Revolving Credit Note mentioned in, and is entitled
to the benefits of, the Credit Agreement dated as of even date herewith (the
"Credit Agreement") and all other instruments, documents and agreements
executed and delivered by the Borrowers therewith, between the Borrowers, the
Lenders (as defined in the Credit Agreement) and CoreStates Bank, N.A. as
Administrative Agent.
83
All obligations and agreements of the Borrowers hereunder are
joint and several.
THIS REVOLVING CREDIT NOTE HAS BEEN EXECUTED AND DELIVERED IN
CONNECTION WITH A COMMERCIAL TRANSACTION.
THIS REVOLVING CREDIT NOTE HAS BEEN EXECUTED, DELIVERED AND
ACCEPTED AT AND WILL BE DEEMED TO HAVE BEEN MADE AT PHILADELPHIA, PENNSYLVANIA
AND WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, AND
THE BORROWERS HEREBY AGREE TO THE JURISDICTION OF ANY OF THE COURTS OF THE
COMMONWEALTH OF PENNSYLVANIA, OR OF THE UNITED STATES OF AMERICA FOR THE
EASTERN DISTRICT OF PENNSYLVANIA, AND ACCEPT, GENERALLY AND UNCONDITIONALLY,
THE JURISDICTION OF ANY SUCH COURT. THE BORROWERS CONSENT THAT ANY SERVICE OF
PROCESS MAY BE MADE BY CERTIFIED MAIL DIRECTED TO THE BORROWERS AT THE ADDRESS
OF THE BORROWERS SET FORTH IN THE CREDIT AGREEMENT FOR NOTICES AND SERVICE SO
MADE WILL BE DEEMED TO BE COMPLETED FIVE (5) BUSINESS DAYS AFTER THE SAME HAS
BEEN DEPOSITED IN U.S. MAILS, POSTAGE PREPAID. THE BORROWERS WAIVE ANY
OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY
ACTION INSTITUTED HEREUNDER IN ANY SUCH JURISDICTION. NOTHING CONTAINED HEREIN
WILL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE
PROCESS IN ANY MANNER PERMITTED BY LAW OR PREVENT THE ADMINISTRATIVE AGENT OR
ANY LENDER FROM BRINGING ANY ACTION, ENFORCING ANY JUDGMENT OR EXERCISING ANY
RIGHTS AGAINST ANY BORROWER OR AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF
ANY BORROWER WITHIN ANY OTHER JURISDICTION.
Waiver of Jury Trial. THE BORROWERS WAIVE ANY RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS REVOLVING CREDIT NOTE, THE
SECURITY DOCUMENTS OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH AGREEMENTS.
Confession of Judgment. The Borrowers hereby irrevocably
authorize any attorney-at-law to appear in any court of record in or of the
Commonwealth of Pennsylvania, or in any other state or territory of the United
States, at any time after the indebtedness evidenced by this Revolving Credit
Note becomes due, whether by acceleration or otherwise, to waive the issuing
and service of process and to confess a judgment against the undersigned in
favor of the Administrative Agent, the Revolving Credit Banks, and/or any
assignee or holder hereof for the amount of principal and interest and expenses
then appearing due from the undersigned under this Revolving Credit Note and
the Credit
- 2 -
84
Agreement, together with costs of suit and thereupon to release all errors and
waive all right of appeal or stays of execution in any court of record. No
such judgment or judgments against less than all of the undersigned will be a
bar to any subsequent judgment or judgments against any one or more of the
undersigned against whom judgment has not been obtained hereon, this being a
joint and several warrant of attorney to confess judgment.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND
COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST
YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO
COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR
WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH
THE AGREEMENT, OR ANY OTHER CAUSE.
XXXX INTERNATIONAL CORP.
By:
------------------------------
Print Name:
----------------------
Title:
---------------------------
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND
COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST
YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO
COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR
WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH
THE AGREEMENT, OR ANY OTHER CAUSE.
TECHNOLOGY/SCIENTIFIC SERVICES, INC.
By:
------------------------------
Print Name:
----------------------
Title:
---------------------------
- 3 -
85
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND
COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST
YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO
COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR
WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH
THE AGREEMENT, OR ANY OTHER CAUSE.
XXXX LIFE SCIENCES INC.
By:
------------------------------
Print Name:
----------------------
Title:
---------------------------
- 4 -
86
SECURITY AGREEMENT
XXXX PROPERTIES INC., an Ohio corporation with its principal place
of business at 0 Xxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000-0000 (the "Debtor"),
for valuable consideration, receipt of which hereby is acknowledged, hereby
transfers, assigns and pledges to CORESTATES BANK, N.A., A NATIONAL BANKING
ASSOCIATION WHICH ALSO CONDUCTS BUSINESS AS PHILADELPHIA NATIONAL BANK AND AS
CORESTATES FIRST PENNSYLVANIA BANK, with its principal place of business at
Broad and Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, as Administrative
Agent (the "Administrative Agent") for the Lenders under the Credit Agreement
of even date herewith between and among XXXX International Corp.,
Technology/Scientific Services, Inc., XXXX Life Sciences, Inc., Society Bank,
National Association, The Central Trust Company, N.A., Comerica Bank,
CoreStates Bank, N.A., a national banking association which also conducts
business as Philadelphia National Bank and as CoreStates First Pennsylvania
Bank, and Security Pacific National Bank, (which Credit Agreement as amended
from time to time is referred to hereinafter as the "Credit Agreement"), and
grants to the Administrative Agent a security interest in, the following
collateral, wherever located, now existing and hereafter arising or coming into
existence (the "Collateral"):
(a) All of the Debtor's receivables (the
"RECEIVABLES"), including but not limited to the Debtor's accounts, Government
Contracts (as defined in the Credit Agreement) contract rights, chattel paper,
notes, drafts, acceptances and other forms of receivables, now existing and all
such as may hereafter come into existence;
(b) All of the Debtor's inventory (the "INVENTORY"),
including but not limited to all goods, merchandise and other personal property
now owned and hereafter acquired by the Debtor, which are held for sale or
lease or are furnished or to be furnished under a contract of service and/or
raw materials, parts, finished goods, work in process and materials used or
consumed or to be used or consumed in the Debtor's business;
87
(c) All of the Debtor's equipment and fixtures, now
owned and hereafter acquired (the "EQUIPMENT"), including but not limited to
all of the Debtor's machinery, parts, tools, fixtures, furniture, and
accessories, together with all attachments, additions and accessions thereto,
and added and substituted parts, equipment and repairs now or hereafter placed
upon such property, whether because of necessary repairs or otherwise;
(d) All of the Debtor's intellectual property,
contract rights and other general intangibles now owned and hereafter acquired
(collectively, the "GENERAL INTANGIBLES"), including but not limited to: (i)
all contracts (including but not limited to the Noncompetition Agreement as
Revised dated March 2, 1990, as amended by the Amendments to Asset Purchase
Agreement, Lease Agreement and Noncompetition Agreement as Revised dated as of
October 24, 1990, between and among Xxxxxxxx Systems, Inc. (now XXXX Properties
Inc.), XXXX International Corp. and WQ Acquisition Company (now Xxxxxxxx Inc.),
and all guarantees therefor (collectively, the "Georgia Agreement")); (ii) all
general intangibles; (iii) all judgments, patents, trademarks, trade or
business names, service marks, logos, copyrights, trade secrets, plans,
blueprints, franchises, licenses, permits, tax or other refunds, programs,
inventions, business or technical data, technology, processes, mailing and
customer lists, books and records, and goodwill; (iv) all rights, applications,
continuations, renewals, substitutions, improvements, modifications and
extensions in any manner related to any of the foregoing; and (v) all proceeds
and products thereof, including but not limited to all license royalties,
payments made under insurance policies and proceeds of infringement suits and
any other suits;
(e) All moneys, credits and other property of any
nature whatsoever of the Debtor now or hereafter in the possession of, in
transit to or from, under the custody or control of, or on deposit with
(whether held by the Debtor individually or jointly with another), the Lenders
or any Affiliate of the Lenders, including but not limited to any and all
lockbox accounts, cash collateral accounts and other deposit accounts; and
(f) The proceeds and products of each of the
foregoing paragraphs (a) through (e) in whatever form the same may be; for the
purpose of securing the payment of all of the following whether direct or
indirect, absolute or contingent, joint or several, due or to become due
(collectively, the "Obligations"): all loans, advances, debts, liabilities,
obligations, covenants and duties
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owing to the Administrative Agent and/or any or all of the Lenders, jointly or
severally, from the Debtor, now or hereafter arising under the Guarantee of
even date herewith made by the Debtor in favor of the Lenders (covering the
joint and several obligations of the Borrowers described therein), the Security
Documents described in the Guarantee and all charges, expenses, fees,
Attorneys' Fees and any other sums chargeable to the Guarantor under the
Guarantee, such Security Documents or other Obligations.
Notwithstanding anything contained herein to the contrary,
the Collateral does not include a pledge of the Capital Stock of XXXX
International (U.K.) Ltd.
Capitalized terms used herein and not otherwise defined in
this Security Agreement will have the meanings given those terms in the Credit
Agreement.
The Debtor further warrants to and agrees with the
Administrative Agent as follows:
1. PRESERVATION OF COLLATERAL. The Debtor will keep the
Collateral in good order and repair at all times, will use same with reasonable
care and caution, except as permitted by this Security Agreement, will not part
with possession or ownership thereof nor lease or hire out same without the
written consent of the Administrative Agent, and will exhibit the same to the
Administrative Agent upon demand. The Debtor will not use, or permit the
Collateral to be used, in violation of any federal, state, county or municipal
law or regulation or for any unlawful purpose whatsoever.
2. INSURANCE. The Debtor will keep its insurable real and
personal property insured with responsible insurance companies against loss or
damage by fire, windstorm and other hazards which are commonly insured against
in an extended coverage endorsement in an amount equal to not less than 80% of
the insurable value thereof on a replacement cost basis and also maintain
public liability insurance in a reasonable amount. In addition, the Debtor
will maintain extended liability insurance covering its operations in at least
such amounts and covering at least such risks as are usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Debtor operates or owns such properties with
responsible insurance companies reasonably satisfactory to the Administrative
Agent. Notwithstanding the foregoing, property insurance will at all times
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be in an amount so that the Debtor will not be deemed a "co-insurer" under any
co-insurance provisions of such policies. All such insurance policies will
name the Administrative Agent, where applicable, as lender loss payee under a
lender's loss payable endorsement satisfactory to the Administrative Agent and,
if required by the Administrative Agent, as an additional insured. All such
policies will provide that thirty (30) days' prior written notice must be given
to the Administrative Agent if such policy is altered or cancelled. Schedules
of all insurance of the Debtor will be submitted to the Administrative Agent
upon request. Such schedules will contain a description of the risks covered,
the amounts of insurance carried on each risk, the name of the insurer and the
cost of such insurance to the Debtor. Such schedules will be supplemented by
the Debtor from time to time promptly to reflect any change in insurance
coverage. The Debtor will deliver to the Administrative Agent certificates
representing such insurance policies from time to time when requested by the
Administrative Agent. Subject to the rights of any mortgagee of the Debtor's
real property, all amounts payable in settlement of insurance losses may be
applied, at the Debtor's option, on the Obligations, or used to repair, replace
or restore the Collateral.
3. PAYMENT OF EXPENSES BY THE ADMINISTRATIVE AGENT. At its
sole option, and after the Debtor's failure to do so after reasonable notice,
the Administrative Agent may discharge taxes, liens, security interests or such
other encumbrances as may attach to the Collateral, may pay for required
insurance on the Collateral and may pay for the maintenance and preservation of
the Collateral, as determined by the Administrative Agent to be necessary. The
Debtor will reimburse the Administrative Agent on demand for any payment so
made or any expense incurred by the Administrative Agent pursuant to the
foregoing authorization, and the Collateral also will secure any advances or
payments so made or expenses so incurred by the Administrative Agent.
4. GOVERNMENT CONTRACTS. The Debtor shall immediately notify
the Administrative Agent if any of the Debtor's Receivables in excess of
$100,000 arise out of contracts with the United States or any department,
agency or instrumentality thereof, furnish the Administrative Agent with copies
of each such contract and execute and deliver any instruments and take any
steps required by the Administrative Agent in order that all moneys due and to
become due under any such contract shall be assigned to the Administrative
Agent and notice given (consistent with paragraph 7 hereof) under the Federal
Assignment of Claims Act (including executing and
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delivering to the Administrative Agent Assignments in the form of Exhibit N to
the Credit Agreement).
5. INFORMATION. The Debtor will furnish to the
Administrative Agent from time to time if and as requested current lists of the
Collateral; will continue to make on the books of the Debtor appropriate
entries evidencing the assignment of book accounts to the Administrative Agent
and will xxxx chattel paper and non-negotiable instruments to evidence the
assignment thereof to the Administrative Agent; and, if and when requested by
the Administrative Agent from time to time, will furnish to it copies of all
purchase orders, contracts, inventory lists, xxxxxxxx, shipping orders,
correspondence and other instruments or writings in any way evidencing or
relating to the Collateral or the proceeds thereof.
6. SALE OF INVENTORY AND EQUIPMENT. As long as no Event of
Default exists and no Acceleration or Termination (each as hereinafter defined)
has occurred, the Debtor will have the right to process and sell the Inventory
in the regular course of its business at customary prices (but in no event may
the Debtor transfer any Inventory in satisfaction of any debt), to dispose of
Equipment in the regular course of its business provided the Equipment disposed
of is (a) either obsolete in Debtor's business or (b) replaced with other
Equipment, which replacement Equipment will be Collateral and subject to this
Agreement and subject to the Credit Agreement. The Debtor will give the
Administrative Agent notice of any returned Inventory with a total value
exceeding $25,000 per return.
7. COLLECTIONS; SETOFF. Unless and until there is an
Acceleration or a Termination (each as hereinafter defined), the Debtor will
collect all of the Receivables and General Intangibles and whenever the Debtor
receives any payment on any of the Receivables or General Intangibles or any
other collections, receipts or proceeds of any kind it will promptly deposit
the same in the bank account(s) with the Lenders, which deposits will be
governed by the Credit Agreement. In the event of an Acceleration or a
Termination then: (a) the Debtor authorizes any of the Lenders or the
Administrative Agent, or any employees thereof, to endorse the name of the
Debtor upon any checks, negotiable instruments or other items received in
payment of any of the Receivables or other Collateral and to do all of the
things necessary to reduce the same to cash; (b) the Debtor authorizes any of
the Lenders or the Administrative Agent at any time thereafter without notice
to
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appropriate and apply any balances, credits, deposits or accounts or money of
the Debtor in its possession, custody or control to the payment of the
Obligations, all of which may at all times be held and treated as additional
Collateral.
8. NOTIFICATION OF ACCOUNT DEBTORS. In the event of an
Acceleration or a Termination (a) the Administrative Agent at any time
thereafter and without notice to the Debtor may notify any persons who are
indebted to the Debtor with respect to any Receivables or General Intangibles
of the assignment thereof to the Administrative Agent and may direct such
account debtors to make payment directly to the Administrative Agent of the
amounts due; (b) at the request of the Administrative Agent, the Debtor will
direct any persons who are indebted to the Debtor with respect to any
Receivables or General Intangibles to make payment directly to the
Administrative Agent and (c) the Administrative Agent shall be authorized to
give receipts to such account debtors and other obligors for any such payments
and the account debtors and other obligors will be protected in making such
payments to the Administrative Agent.
9. REPRESENTATIONS AND WARRANTIES. The Debtor represents and
warrants to the Administrative Agent that: (a) except as set forth in the
Disclosure Schedule, the Debtor has not made any prior sale, pledge,
encumbrance, assignment or other disposition of any of the Collateral and the
same is free from all encumbrances and rights of setoff of any kind; (b) except
as provided herein or in the Credit Agreement, the Debtor will not hereafter
without the prior written consent of the Administrative Agent sell, pledge,
encumber, assign or otherwise dispose of any of the Collateral or permit any
right of setoff, lien or security interest to exist thereon except to the
Administrative Agent; (c) the Debtor will defend the Collateral against all
claims and demands of all persons at any time claiming the same or any interest
therein; (d) the Debtor will deliver to the Administrative Agent any chattel
paper evidencing the Receivables; (e) each General Intangible is genuine and
enforceable in accordance with its terms and the Debtor will defend the same
against all claims, demands, setoffs and counterclaims at any time asserted;
(f) except as to unbilled Receivables, at the time any of the Receivables
becomes subject to this Security Agreement, such Receivable will be a good and
valid account representing a bona fide sale of goods or services by the Debtor
and such goods will have been shipped to the respective account debtors or the
services will have been performed for the respective account debtors; (g) as to
unbilled Receivables, at the
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time any of the Receivables becomes subject to this Security Agreement, such
Receivable will represent partial performance by the Debtor, in an amount
determined by the Debtor based on Debtor's usual percentage of completion
accounting practices, under a bona fide contract or order for which the Debtor
has the right to be paid at some future time after full and satisfactory
performance under the contract or order; and (h) the Debtor will notify the
Administrative Agent promptly in the event of the refusal of any account debtor
to accept, or of the return of, any goods which are then subject to any such
Receivable with a total value exceeding $25,000 per refusal or return and of
the bankruptcy or insolvency of any account debtor and of claims asserted for
credit, allowance, adjustment, setoff, defense or counterclaim with a total
value exceeding $25,000 per claim.
10. PLACE OF BUSINESS. The Debtor (a) now keeps and, except
as permitted in the Credit Agreement, will continue to keep the Collateral and
the books and records concerning the Collateral at its places of business as
shown in the Disclosure Schedule, and (b) represents that it has no places of
business other than those set forth in the Disclosure Schedule.
11. FINANCING STATEMENTS; DOCUMENTS. At the request of the
Administrative Agent, the Debtor will join with the Administrative Agent in
executing one or more financing statements pursuant to the Uniform Commercial
Code in form satisfactory to the Administrative Agent and will pay the cost of
filing all financing, continuation and termination statements in all public
offices where filing is deemed necessary or desirable by the Administrative
Agent. The Debtor will execute and deliver to the Administrative Agent from
time to time such supplemental assignments or other instruments as the
Administrative Agent may require for the purpose of confirming the
Administrative Agent's interest in the Collateral, including but not limited to
any and all notices and assignments of receivables under contracts with
Governmental Authorities. The Debtor hereby authorizes the Administrative
Agent to execute and file on behalf of the Debtor all financing statements and
documents deemed necessary or appropriate to perfect the Administrative Agent's
interest in the Collateral.
12. DEBTOR'S CONSENT. The Debtor consents, with respect to
the Receivables or any General Intangibles, upon the occurrence of any Event of
Default and Acceleration or Termination, to all extensions or postponements of
time of payment thereof or any other indulgences in connection therewith, to
the acceptance of partial
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payments thereon and to the settlement, compromise and adjustment thereof, all
in such manner and at such time or times as the Administrative Agent deems
advisable.
13. DEFAULT.
13.1 Upon the occurrence of any Event of Default as
defined in the Credit Agreement (herein referred to as an "Event of Default")
and a determination by the Majority Lenders under Section 7.2 of the Credit
Agreement to declare the Obligations to be due and payable ("Acceleration") or
to declare the Revolving Commitment to be terminated ("Termination"), the
Administrative Agent is authorized in its discretion to declare any or all of
the Obligations immediately due and payable without demand or notice to the
Debtor (except such notice as may be required by the Credit Agreement) and may
exercise any one or more of the rights and remedies granted pursuant to this
Security Agreement, the Credit Agreement and/or applicable law (including those
given to a secured party under the Pennsylvania version of the Uniform
Commercial Code, as it may be amended from time to time), including but not
limited to the right upon default and after an Acceleration or a Termination to
take possession and sell, lease or otherwise dispose of the Collateral and, at
its option, operate, use or exercise any rights of ownership pertaining to the
Collateral as the Administrative Agent deems necessary to preserve the value
and receive the benefits of the Collateral. Upon the occurrence of an Event of
Default and an Acceleration or a Termination, the Administrative Agent may, so
far as the Debtor can give authority therefore, enter upon any premises on
which the Collateral or any part thereof may be situated and take possession of
and remove the same therefrom. The Administrative Agent may require the Debtor
to make the Collateral available to the Administrative Agent at a place to be
designated by the Administrative Agent that is reasonably convenient to both
parties. The Debtor waives all claims for damages by reason of any seizure,
repossession, retention, use or sale of the Collateral under the terms of this
Security Agreement.
13.2 The net proceeds arising from the disposition of
the Collateral after deducting expenses incurred by the Administrative Agent
will be applied to the Obligations in the order determined by the
Administrative Agent. If any excess remains after the discharge of all of the
Obligations, the same will be paid to the Debtor. If after exhausting all of
the
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Collateral, there should be a deficiency, the Debtor will be liable therefor to
the Administrative Agent.
13.3 Whenever notice is required by law to be sent by
the Administrative Agent to the Debtor of any sale, lease or other disposition
of the Collateral, five days written notice sent by certified mail to the
Debtor's address set forth in accordance with Section 16.2 below will be
reasonable.
13.4 If any demand is made at any time upon the
Administrative Agent for the repayment or recovery of any amount received by it
in payment or on account of any of the Obligations and if the Administrative
Agent repays all or any part of such amount, the Debtor will be and remain
liable for the amounts so repaid or recovered to the same extent as if never
originally received by the Administrative Agent.
14. RIGHTS OF THE ADMINISTRATIVE AGENT; POWER OF ATTORNEY.
The Debtor hereby irrevocably constitutes and appoints the Administrative Agent
and any officer thereof, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of the Debtor or in its name, from time to time in the Administrative
Agent's discretion, for the purpose of carrying out the terms of this Security
Agreement, upon the occurrence of any Event of Default and an Acceleration or a
Termination, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Security Agreement and, without limiting the generality of the
foregoing, the Debtor hereby gives the Administrative Agent the power and
right, on behalf of the Debtor, after any Event of Default and an Acceleration
or a Termination, and without notice (except such notice as may be required by
the Credit Agreement) to or assent by the Debtor, to do the following:
14.1 to receive payment of, endorse, and receipt for,
any and all monies, claims and other amounts due and to become due at any time
in respect of or arising out of the Collateral;
14.2 to commence and prosecute any suits, actions or
proceeding at law or in equity in any court of competent jurisdiction to
collect any of the Collateral and to enforce any other right in respect of the
Collateral;
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14.3 to settle, compromise or adjust any suit, action
or proceeding described above, and, in connection therewith, to give such
discharges or releases as the Administrative Agent may deem appropriate; and
14.4 generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Collateral as fully
and completely as though the Administrative Agent were the absolute owner
thereof for all purposes, and to do, at the Administrative Agent's option, at
any time, or from time to time, all acts and things which the Administrative
Agent deems necessary to protect or preserve the Collateral and the
Administrative Agent's security interest and rights therein in order to effect
the intent of this Security Agreement, all as fully and effectively as the
Debtor might do.
The Debtor hereby ratifies all that such attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest, will be irrevocable and shall terminate only upon payment in full of
the Obligations and the termination of this Security Agreement. The powers
conferred upon the Administrative Agent hereunder are solely to protect the
Administrative Agent's interests in the Collateral and will not impose any duty
upon it to exercise any such powers. The Administrative Agent will have no
obligation to preserve any rights of any third parties in the Collateral. The
Administrative Agent will be accountable only for amounts that it actually
receives as a result of the exercise of such powers, and neither it nor any of
its officers, directors, employees or Administrative Agents will be responsible
to the Debtor for any action taken or omitted to be taken in good faith or in
reliance on the advice of counsel except for its own gross negligence and
willful misconduct.
15. GEORGIA AGREEMENT. The Debtor represents, warrants and
covenants that (a) the Debtor will observe and perform all covenants and
conditions to be performed by the Debtor under the Georgia Agreement; (b) the
Debtor will, at its sole cost and expense, enforce, short of termination of the
Georgia Agreement, the observance of every covenant and condition of the
Georgia Agreement to be observed and performed by the other parties to the
Georgia Agreement; (c) the Debtor will appear in and defend any action growing
out of, or in any manner connected with, the Georgia Agreement or the
obligations or liabilities of the Debtor thereunder; and (d) the Debtor will
not without the prior written consent of the Administrative Agent terminate,
alter, amend or
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modify the Georgia Agreement, release any party liable thereunder or waive or
release any party to the Georgia Agreement from the observance of any material
covenant or condition to be observed or performed by such party under the terms
of the Georgia Agreement or from any liability on account of any warranty given
by such party therein.
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16. GENERAL.
16.1 WAIVER. No delay or omission on the part of the
Administrative Agent or any of the Lenders to exercise any right or power
arising from any Event of Default will impair any such right or power or be
considered a waiver of any such right or power or a waiver of any such Event of
Default or in acquiescence therein nor will the action or non-action of the
Administrative Agent or any of the Lenders in case of such Event of Default
impair any right or power arising as a result thereof.
16.2 NOTICES. All notices, demands, requests,
consents, approvals and other communications required or permitted hereunder
will be in writing and will be conclusively deemed to have been received by a
party hereto and to be effective if delivered personally to such party, or sent
by telex, telecopy (followed by written confirmation) or other telegraphic
means, or by overnight courier service, or by certified or registered mail,
return receipt requested, postage prepaid, addressed to such party at the
address set forth in the Guarantee or to such other address as any party may
give to the other pursuant to the Guarantee in writing for such purpose. All
such communications, if personally delivered, will be conclusively deemed to
have been received by a party hereto and to be effective when so delivered, or
if sent by telex, telecopy or telegraphic means, on the day on which
transmitted, or if sent by courier service, on the day after deposit thereof
with such service, or if sent by certified or registered mail, on the third
business day after the day on which deposited in the mail.
16.3 SUCCESSORS AND ASSIGNS. This Security Agreement
will be binding upon and inure to the benefit of the Debtor and the
Administrative Agent, as Administrative Agent for the Lenders, and their
respective successors and assigns; provided, however, that the Debtor may not
assign this Security Agreement in whole or in part without prior written
consent of the Administrative Agent.
16.4 MODIFICATIONS. No modification or waiver of any
provision of this Security Agreement nor consent to any departure by the Debtor
therefrom, will in any event be effective unless the same is in writing and
specifically refers to this Security Agreement, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice to or demand on the Debtor in any case will entitle the
Debtor to any other or further notice or demand in the same, similar or other
circumstance.
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16.5 ILLEGALITY. If fulfillment of any provision
hereof or any transaction related hereto or of any provision of this Security
Agreement, at the time performance of such provision is due, involves
transcending the limit of validity prescribed by law, then ipso facto, the
obligation to be fulfilled will be reduced to the limit of such validity; and
if any clause or provisions herein contained other than the provisions hereof
pertaining to repayment of the Obligations operates or would prospectively
operate to invalidate this Security Agreement in whole or in part, then such
clause or provision only will be void, as though not herein contained, and the
remainder of this Security Agreement will remain operative and in full force
and effect; and if such provision pertains to repayment of the Obligations,
then, at the option of the Administrative Agent, all of the Obligations of the
Debtor to the Administrative Agent will become immediately due and payable.
16.6 GENDER, ETC. Whenever used herein, the singular
number will include the plural, the plural the singular and the use of the
masculine, feminine or neuter gender will include all genders.
16.7 HEADINGS. The headings in this Security
Agreement are for convenience only and will not limit or otherwise affect any
of the terms hereof.
16.8 LIABILITY OF THE ADMINISTRATIVE AGENT. The
Debtor hereby agrees that the Administrative Agent will not be chargeable for
any negligence, mistake, act or omission of any accountant, examiner,
Administrative Agent or attorney employed by the Administrative Agent in making
examinations, investigations or collections, or otherwise in protecting or
realizing upon any lien or security interest or any other interest in the
Collateral. The Administrative Agent will not be obligated to perform or
discharge any obligation or duty of the Debtor concerning any of the Collateral
and the acceptance of this assignment and grant of a security interest in the
Collateral does not constitute an assumption by the Administrative Agent of any
obligation or duty. The Debtor will indemnify and hold the Administrative
Agent harmless against (a) all liabilities, losses and damages that the
Administrative Agent may incur under the Collateral or under or by reason of
this Security Agreement and (b) all claims and demands whatsoever that may be
asserted against the Administrative Agent by reason of this Security Agreement
or any act of the Administrative Agent under this Security Agreement or
concerning any of the
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Collateral, except where due to the willful misconduct or gross negligence of
the Administrative Agent.
16.9 GOVERNING LAW AND JURISDICTION; NO JURY TRIAL.
THIS SECURITY AGREEMENT HAS BEEN EXECUTED, DELIVERED AND ACCEPTED AT AND WILL
BE DEEMED TO HAVE BEEN MADE AT PHILADELPHIA, PENNSYLVANIA AND SHALL BE GOVERNED
IN ALL RESPECTS BY THE LAW OF THE COMMONWEALTH OF PENNSYLVANIA AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH SUCH LAW, EXCEPT TO THE EXTENT
THAT THE VALIDITY OR PERFECTION OF SECURITY INTERESTS IN ANY OF THE COLLATERAL
IS REQUIRED BY THE LAWS OF A JURISDICTION OTHER THAN PENNSYLVANIA TO BE
GOVERNED BY THE LAWS OF SUCH OTHER JURISDICTION. THE DEBTOR HEREBY AGREES TO
THE JURISDICTION OF ANY COURT(S) OF THE STATE OF PENNSYLVANIA, OR OF THE UNITED
STATES OF AMERICA FOR THE EASTERN DISTRICT OF PENNSYLVANIA, AND HEREBY ACCEPTS
GENERALLY AND UNCONDITIONALLY THE JURISDICTION OF ANY SUCH COURT AND CONSENTS
THAT ANY SERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL DIRECTED TO DEBTOR AT
ITS ADDRESS SET FORTH HEREIN FOR NOTICES AND SERVICE SO MADE WILL BE DEEMED TO
BE COMPLETED FIVE (5) BUSINESS DAYS AFTER THE SAME HAS BEEN DEPOSITED IN U.S.
MAILS, POSTAGE PREPAID. THE DEBTOR WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY
JURISDICTION SET FORTH ABOVE. NOTHING CONTAINED HEREIN WILL AFFECT THE RIGHT
OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW OR PREVENT THE ADMINISTRATIVE AGENT OR ANY LENDER FROM
BRINGING ANY ACTION, ENFORCING ANY JUDGMENT OR EXERCISING ANY RIGHTS AGAINST
THE DEBTOR, OR AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF THE DEBTOR
WITHIN ANY OTHER JURISDICTION. THE DEBTOR, THE LENDERS AND THE ADMINISTRATIVE
AGENT EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
RELATING TO THIS SECURITY AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
Signed at Philadelphia, Pennsylvania on November 14, 1991.
DEBTOR:
XXXX PROPERTIES INC.
By:
------------------------------------
Title:
---------------------------------
SECURED PARTY:
CORESTATES BANK, N.A.,
AS ADMINISTRATIVE AGENT
By:
------------------------------------
Title:
---------------------------------
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ACKNOWLEDGMENT
The undersigned Xxxxxxxx Inc. (formerly known as WQ Acquisition
Company) hereby acknowledges notification and receipt of a copy of the Security
Agreement dated November 14, 1991 between XXXX Properties Inc. (the "Debtor")
and CoreStates Bank, N.A. (the "Administrative Agent"); consents thereto;
agrees not to amend or supplement in any way the Georgia Agreement (as defined
therein) without the prior written consent of the Administrative Agent; agrees
that until and unless otherwise agreed by the Administrative Agent all payments
at any time due under the Georgia Agreement will be paid directly to the
Administrative Agent; and represents that it has no knowledge of any other
assignment of any or all of the Georgia Agreement.
Date: XXXXXXXX INC.
--------------------
By:
-----------------------------------
Print Name:
---------------------------
Title:
--------------------------------
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101
AMENDMENT NO. 1 dated November 22, 1991 to SECURITY AGREEMENT dated as
of November 14, 1991 granted by XXXX PROPERTIES INC. (the "Debtor") to
CORESTATES BANK, N.A., a national banking association which also conducts
business as Philadelphia National Bank and as CoreStates First Pennsylvania
Bank, as Administrative Agent (the "Administrative Agent").
ARTICLE I
BACKGROUND
The Debtor and the Administrative Agent acknowledge that:
1. In accordance with the terms of a Credit Agreement and other
Loan Documents (as defined in the Credit Agreement) dated as of November 14,
1991, the Debtor executed and delivered a Security Agreement, dated as of
November 14, 1991, to the Administrative Agent.
2. Certain modifications were made to the Credit Agreement
shortly before its execution and the Security Agreement should be amended to
address those modifications.
3. The Debtor now wishes to amend and supplement the Security
Agreement it issued on November 14, 1991 in order to address the
above-referenced modifications made to the Credit Agreement.
ARTICLE II
AMENDMENTS
1. The Security Agreement is amended by eliminating the language
in paragraph 6 thereof in its entirety and inserting, in its place, the
following:
"6. SALE OF INVENTORY AND EQUIPMENT. As long as no
Acceleration, Termination or Maturity (each as hereinafter defined) has
occurred, the Debtor will have the right to process and sell the Inventory in
the regular course of its business at customary prices (but in no event may the
Debtor transfer any Inventory in satisfaction of any debt), to dispose of
Equipment in the regular course of its business provided the Equipment disposed
of is (a) either obsolete in Debtor's business or (b) replaced with other
Equipment, which replacement Equipment will be Collateral and subject to this
Agreement and subject to the Credit Agreement. The Debtor will give the
Administrative Agent notice of any returned Inventory with a total value
exceeding $25,000 per return."
102
2. The Security Agreement is amended by eliminating the language
in paragraph 13.1 thereof in its entirety and inserting, in its place, the
following:
"13.1. If (i) the Revolving Commitment is terminated in
accordance with Section 7.2(a) or Section 7.2(c) of the Credit Agreement (a
"Termination"), or (ii) all or any portion of the unpaid principal amount of
the Notes or Obligations is accelerated in accordance with Section 7.2(a) or
Section 7.2(c) of the Credit Agreement (an "Acceleration"), or (iii) any of
such Notes or Obligations are not paid at the Termination Date (as defined in
the Credit Agreement) (a "Maturity"), the Administrative Agent may exercise any
one or more of the rights and remedies granted pursuant to this Security
Agreement, the Credit Agreement and/or applicable law (including those given to
a secured party under the Pennsylvania Uniform Commercial Code, as it may be
amended from time to time), including but not limited to the right upon default
and after an Acceleration, a Termination or a Maturity to take possession and
sell, lease or otherwise dispose of the Collateral and, at its option, operate,
use or exercise any rights of ownership pertaining to the Collateral as the
Administrative Agent deems necessary to preserve the value and receive the
benefits of the Collateral. Upon the occurrence of an Acceleration, a
Termination or a Maturity, the Administrative Agent may, so far as the Debtor
can give authority therefor, enter upon any premises on which the Collateral or
any part thereof may be situated and take possession and remove the same
therefrom. The Administrative Agent may require the Debtor to make the
Collateral available to the Administrative Agent at a place to be designated by
the Administrative Agent that is reasonably convenient to both parties. The
Debtor waives all claims for damages by reason of any seizure, repossession,
retention, use or sale of the Collateral under the terms of this Security
Agreement. References in other paragraphs of this Security Agreement to
"Acceleration" shall mean an Acceleration or a Maturity."
3. The Security Agreement is amended by eliminating the language
in paragraph 14 thereof in its entirety (except as provided in paragraph 4
hereinbelow) and inserting, in its place, the following:
"14. RIGHTS OF THE ADMINISTRATIVE AGENT; POWER OF
ATTORNEY. The Debtor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer thereof, with full power of substitution,
as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of the
-2-
103
Debtor or in its name, from time to time in the Administrative Agent's
discretion, for the purpose of carrying out the terms of this Security
Agreement, upon the occurrence of an Acceleration, a Termination or a Maturity,
to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Security Agreement and, without limiting the generality of the foregoing,
the Debtor hereby gives the Administrative Agent the power and right, on behalf
of the Debtor, after an Acceleration, a Termination or a Maturity, and without
notice (except such notice as may be required by the Credit Agreement) to or
assent by the Debtor, to do the following:"
4. Notwithstanding anything to the contrary contained in
paragraph 3 hereinabove, paragraphs 14.1, 14.2, 14.3, 14.4 and the last
unnumbered paragraph which follows paragraph 14.4 of the Security Agreement
remain unchanged.
DEBTOR:
XXXX PROPERTIES INC.
By:
-------------------------------
Print Name: Xxxxxx X. Xxxx
Title: Treasurer
SECURED PARTY:
CORESTATES BANK, N.A., AS
ADMINISTRATIVE AGENT
By:
-------------------------------
Print Name: Xxxxxx X. Xxxxx
Title: Vice President
-3-
104
AMENDMENT NO. 1 dated November 22, 1991 to SECURITY AGREEMENT dated as
of November 14, 1991 granted by XXXX PROPERTIES LTD. (the "Debtor") to
CORESTATES BANK, N.A., a national banking association which also conducts
business as Philadelphia National Bank and as CoreStates First Pennsylvania
Bank, as Administrative Agent (the "Administrative Agent").
ARTICLE I
BACKGROUND
The Debtor and the Administrative Agent acknowledge that:
1. In accordance with the terms of a Credit Agreement and other
Loan Documents (as defined in the Credit Agreement) dated as of November 14,
1991, the Debtor executed and delivered a Security Agreement, dated as of
November 14, 1991, to the Administrative Agent.
2. Certain modifications were made to the Credit Agreement
shortly before its execution and the Security Agreement should be amended to
address those modifications.
3. The Debtor now wishes to amend and supplement the Security
Agreement it issued on November 14, 1991 in order to address the
above-referenced modifications made to the Credit Agreement.
ARTICLE II
AMENDMENTS
1. The Security Agreement is amended by eliminating the language
in paragraph 6 thereof in its entirety and inserting, in its place, the
following:
"6. SALE OF INVENTORY AND EQUIPMENT. As long as no
Acceleration, Termination or Maturity (each as hereinafter defined) has
occurred, the Debtor will have the right to process and sell the Inventory in
the regular course of its business at customary prices (but in no event may the
Debtor transfer any Inventory in satisfaction of any debt), to dispose of
Equipment in the regular course of its business provided the Equipment disposed
of is (a) either obsolete in Debtor's business or (b) replaced with other
Equipment, which replacement Equipment will be Collateral and subject to this
Agreement and subject to the Credit Agreement. The Debtor will give the
Administrative Agent notice of any returned Inventory with a total value
exceeding $25,000 per return."
105
2. The Security Agreement is amended by eliminating the language
in paragraph 13.1 thereof in its entirety and inserting, in its place, the
following:
"13.1. If (i) the Revolving Commitment is terminated in
accordance with Section 7.2(a) or Section 7.2(c) of the Credit Agreement (a
"Termination"), or (ii) all or any portion of the unpaid principal amount of
the Notes or Obligations is accelerated in accordance with Section 7.2(a) or
Section 7.2(c) of the Credit Agreement (an "Acceleration"), or (iii) any of
such Notes or Obligations are not paid at the Termination Date (as defined in
the Credit Agreement) (a "Maturity"), the Administrative Agent may exercise any
one or more of the rights and remedies granted pursuant to this Security
Agreement, the Credit Agreement and/or applicable law (including those given to
a secured party under the Pennsylvania Uniform Commercial Code, as it may be
amended from time to time), including but not limited to the right upon default
and after an Acceleration, a Termination or a Maturity to take possession and
sell, lease or otherwise dispose of the Collateral and, at its option, operate,
use or exercise any rights of ownership pertaining to the Collateral as the
Administrative Agent deems necessary to preserve the value and receive the
benefits of the Collateral. Upon the occurrence of an Acceleration, a
Termination or a Maturity, the Administrative Agent may, so far as the Debtor
can give authority therefor, enter upon any premises on which the Collateral or
any part thereof may be situated and take possession and remove the same
therefrom. The Administrative Agent may require the Debtor to make the
Collateral available to the Administrative Agent at a place to be designated by
the Administrative Agent that is reasonably convenient to both parties. The
Debtor waives all claims for damages by reason of any seizure, repossession,
retention, use or sale of the Collateral under the terms of this Security
Agreement. References in other paragraphs of this Security Agreement to
"Acceleration" shall mean an Acceleration or a Maturity."
3. The Security Agreement is amended by eliminating the language
in paragraph 14 thereof in its entirety (except as provided in paragraph 4
hereinbelow) and inserting, in its place, the following:
"14. RIGHTS OF THE ADMINISTRATIVE AGENT; POWER OF
ATTORNEY. The Debtor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer thereof, with full power of substitution,
as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of the
-2-
106
Debtor or in its name, from time to time in the Administrative Agent's
discretion, for the purpose of carrying out the terms of this Security
Agreement, upon the occurrence of an Acceleration, a Termination or a Maturity,
to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Security Agreement and, without limiting the generality of the foregoing,
the Debtor hereby gives the Administrative Agent the power and right, on behalf
of the Debtor, after an Acceleration, a Termination or a Maturity, and without
notice (except such notice as may be required by the Credit Agreement) to or
assent by the Debtor, to do the following:"
4. Notwithstanding anything to the contrary contained in
paragraph 3 hereinabove, paragraphs 14.1, 14.2, 14.3, 14.4 and the last
unnumbered paragraph which follows paragraph 14.4 of the Security Agreement
remain unchanged.
DEBTOR:
XXXX PROPERTIES LTD.
By:
-------------------------------
Print Name: Xxxxxx X. Xxxx
Title: Vice President & Treasurer
SECURED PARTY:
CORESTATES BANK, N.A., AS
ADMINISTRATIVE AGENT
By:
-------------------------------
Print Name: Xxxxxx X. Xxxxx
Title: Vice President
-3-
107
AMENDMENT NO. 1 dated November 22, 1991 to SECURITY AGREEMENT dated as
of November 14, 1991 granted by TECHNOLOGY INCORPORATED (the "Debtor") to
CORESTATES BANK, N.A., a national banking association which also conducts
business as Philadelphia National Bank and as CoreStates First Pennsylvania
Bank, as Administrative Agent (the "Administrative Agent").
ARTICLE I
BACKGROUND
The Debtor and the Administrative Agent acknowledge that:
1. In accordance with the terms of a Credit Agreement and other
Loan Documents (as defined in the Credit Agreement) dated as of November 14,
1991, the Debtor executed and delivered a Security Agreement, dated as of
November 14, 1991, to the Administrative Agent.
2. Certain modifications were made to the Credit Agreement
shortly before its execution and the Security Agreement should be amended to
address those modifications.
3. The Debtor now wishes to amend and supplement the Security
Agreement it issued on November 14, 1991 in order to address the
above-referenced modifications made to the Credit Agreement.
ARTICLE II
AMENDMENTS
1. The Security Agreement is amended by eliminating the language
in paragraph 6 thereof in its entirety and inserting, in its place, the
following:
"6. SALE OF INVENTORY AND EQUIPMENT. As long as no
Acceleration, Termination or Maturity (each as hereinafter defined) has
occurred, the Debtor will have the right to process and sell the Inventory in
the regular course of its business at customary prices (but in no event may the
Debtor transfer any Inventory in satisfaction of any debt), to dispose of
Equipment in the regular course of its business provided the Equipment disposed
of is (a) either obsolete in Debtor's business or (b) replaced with other
Equipment, which replacement Equipment will be Collateral and subject to this
Agreement and subject to the Credit Agreement. The Debtor will give the
Administrative Agent notice of any returned Inventory with a total value
exceeding $25,000 per return."
108
2. The Security Agreement is amended by eliminating the language
in paragraph 13.1 thereof in its entirety and inserting, in its place, the
following:
"13.1. If (i) the Revolving Commitment is terminated in
accordance with Section 7.2(a) or Section 7.2(c) of the Credit Agreement (a
"Termination"), or (ii) all or any portion of the unpaid principal amount of
the Notes or Obligations is accelerated in accordance with Section 7.2(a) or
Section 7.2(c) of the Credit Agreement (an "Acceleration"), or (iii) any of
such Notes or Obligations are not paid at the Termination Date (as defined in
the Credit Agreement) (a "Maturity"), the Administrative Agent may exercise any
one or more of the rights and remedies granted pursuant to this Security
Agreement, the Credit Agreement and/or applicable law (including those given to
a secured party under the Pennsylvania Uniform Commercial Code, as it may be
amended from time to time), including but not limited to the right upon default
and after an Acceleration, a Termination or a Maturity to take possession and
sell, lease or otherwise dispose of the Collateral and, at its option, operate,
use or exercise any rights of ownership pertaining to the Collateral as the
Administrative Agent deems necessary to preserve the value and receive the
benefits of the Collateral. Upon the occurrence of an Acceleration, a
Termination or a Maturity, the Administrative Agent may, so far as the Debtor
can give authority therefor, enter upon any premises on which the Collateral or
any part thereof may be situated and take possession and remove the same
therefrom. The Administrative Agent may require the Debtor to make the
Collateral available to the Administrative Agent at a place to be designated by
the Administrative Agent that is reasonably convenient to both parties. The
Debtor waives all claims for damages by reason of any seizure, repossession,
retention, use or sale of the Collateral under the terms of this Security
Agreement. References in other paragraphs of this Security Agreement to
"Acceleration" shall mean an Acceleration or a Maturity."
3. The Security Agreement is amended by eliminating the language
in paragraph 14 thereof in its entirety (except as provided in paragraph 4
hereinbelow) and inserting, in its place, the following:
"14. RIGHTS OF THE ADMINISTRATIVE AGENT; POWER OF
ATTORNEY. The Debtor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer thereof, with full power of substitution,
as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of the
-2-
109
Debtor or in its name, from time to time in the Administrative Agent's
discretion, for the purpose of carrying out the terms of this Security
Agreement, upon the occurrence of an Acceleration, a Termination or a Maturity,
to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Security Agreement and, without limiting the generality of the foregoing,
the Debtor hereby gives the Administrative Agent the power and right, on behalf
of the Debtor, after an Acceleration, a Termination or a Maturity, and without
notice (except such notice as may be required by the Credit Agreement) to or
assent by the Debtor, to do the following:"
4. Notwithstanding anything to the contrary contained in
paragraph 3 hereinabove, paragraphs 14.1, 14.2, 14.3, 14.4 and the last
unnumbered paragraph which follows paragraph 14.4 of the Security Agreement
remain unchanged.
DEBTOR:
TECHNOLOGY INCORPORATED
By:
-------------------------------
Print Name: Xxxxxx X. Xxxx
Title: Treasurer
SECURED PARTY:
CORESTATES BANK, N.A., AS
ADMINISTRATIVE AGENT
By:
-------------------------------
Title:
----------------------------
-3-
110
AMENDMENT NO. 1 dated November 22, 1991 to SECURITY AGREEMENT dated as
of November 14, 1991 granted by XXXX INTERNATIONAL CORP. (the "Debtor") to
CORESTATES BANK, N.A., a national banking association which also conducts
business as Philadelphia National Bank and as CoreStates First Pennsylvania
Bank, as Administrative Agent (the "Administrative Agent").
ARTICLE I
BACKGROUND
The Debtor and the Administrative Agent acknowledge that:
1. In accordance with the terms of a Credit Agreement and other
Loan Documents (as defined in the Credit Agreement) dated as of November 14,
1991, the Debtor executed and delivered a Security Agreement, dated as of
November 14, 1991, to the Administrative Agent.
2. Certain modifications were made to the Credit Agreement
shortly before its execution and the Security Agreement should be amended to
address those modifications.
3. The Debtor now wishes to amend and supplement the Security
Agreement it issued on November 14, 1991 in order to address the
above-referenced modifications made to the Credit Agreement.
ARTICLE II
AMENDMENTS
1. The Security Agreement is amended by eliminating the language
in paragraph 6 thereof in its entirety and inserting, in its place, the
following:
"6. SALE OF INVENTORY AND EQUIPMENT. As long as no
Acceleration, Termination or Maturity (each as hereinafter defined) has
occurred, the Debtor will have the right to process and sell the Inventory in
the regular course of its business at customary prices (but in no event may the
Debtor transfer any Inventory in satisfaction of any debt), to dispose of
Equipment in the regular course of its business provided the Equipment disposed
of is (a) either obsolete in Debtor's business or (b) replaced with other
Equipment, which replacement Equipment will be Collateral and subject to this
Agreement and subject to the Credit Agreement. The Debtor will give the
Administrative Agent notice of any returned Inventory with a total value
exceeding $25,000 per return."
111
2. The Security Agreement is amended by eliminating the language
in paragraph 13.1 thereof in its entirety and inserting, in its place, the
following:
"13.1. If (i) the Revolving Commitment is terminated in
accordance with Section 7.2(a) or Section 7.2(c) of the Credit Agreement (a
"Termination"), or (ii) all or any portion of the unpaid principal amount of
the Notes or Obligations is accelerated in accordance with Section 7.2(a) or
Section 7.2(c) of the Credit Agreement (an "Acceleration"), or (iii) any of
such Notes or Obligations are not paid at the Termination Date (as defined in
the Credit Agreement) (a "Maturity"), the Administrative Agent may exercise any
one or more of the rights and remedies granted pursuant to this Security
Agreement, the Credit Agreement and/or applicable law (including those given to
a secured party under the Pennsylvania Uniform Commercial Code, as it may be
amended from time to time), including but not limited to the right upon default
and after an Acceleration, a Termination or a Maturity to take possession and
sell, lease or otherwise dispose of the Collateral and, at its option, operate,
use or exercise any rights of ownership pertaining to the Collateral as the
Administrative Agent deems necessary to preserve the value and receive the
benefits of the Collateral. Upon the occurrence of an Acceleration, a
Termination or a Maturity, the Administrative Agent may, so far as the Debtor
can give authority therefor, enter upon any premises on which the Collateral or
any part thereof may be situated and take possession and remove the same
therefrom. The Administrative Agent may require the Debtor to make the
Collateral available to the Administrative Agent at a place to be designated by
the Administrative Agent that is reasonably convenient to both parties. The
Debtor waives all claims for damages by reason of any seizure, repossession,
retention, use or sale of the Collateral under the terms of this Security
Agreement. References in other paragraphs of this Security Agreement to
"Acceleration" shall mean an Acceleration or a Maturity."
3. The Security Agreement is amended by eliminating the language
in paragraph 14 thereof in its entirety (except as provided in paragraph 4
hereinbelow) and inserting, in its place, the following:
"14. RIGHTS OF THE ADMINISTRATIVE AGENT; POWER OF
ATTORNEY. The Debtor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer thereof, with full power of substitution,
as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of the
-2-
112
Debtor or in its name, from time to time in the Administrative Agent's
discretion, for the purpose of carrying out the terms of this Security
Agreement, upon the occurrence of an Acceleration, a Termination or a Maturity,
to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Security Agreement and, without limiting the generality of the foregoing,
the Debtor hereby gives the Administrative Agent the power and right, on behalf
of the Debtor, after an Acceleration, a Termination or a Maturity, and without
notice (except such notice as may be required by the Credit Agreement) to or
assent by the Debtor, to do the following:"
4. Notwithstanding anything to the contrary contained in
paragraph 3 hereinabove, paragraphs 14.1, 14.2, 14.3, 14.4 and the last
unnumbered paragraph which follows paragraph 14.4 of the Security Agreement
remain unchanged.
DEBTOR:
XXXX INTERNATIONAL CORP.
By:
-------------------------------
Print Name: Xxxxxx X. Xxxx
Title: Vice President
Finance/Treasurer
SECURED PARTY:
CORESTATES BANK, N.A., AS
ADMINISTRATIVE AGENT
By:
-------------------------------
Print Name: Xxxxxx X. Xxxxx
Title: Vice President
-3-
113
AMENDMENT NO. 1 dated November 22, 1991 to SECURITY AGREEMENT dated as
of November 14, 1991 granted by XXXX LIFE SCIENCES INC. (the "Debtor") to
CORESTATES BANK, N.A., a national banking association which also conducts
business as Philadelphia National Bank and as CoreStates First Pennsylvania
Bank, as Administrative Agent (the "Administrative Agent").
ARTICLE I
BACKGROUND
The Debtor and the Administrative Agent acknowledge that:
1. In accordance with the terms of a Credit Agreement and other
Loan Documents (as defined in the Credit Agreement) dated as of November 14,
1991, the Debtor executed and delivered a Security Agreement, dated as of
November 14, 1991, to the Administrative Agent.
2. Certain modifications were made to the Credit Agreement
shortly before its execution and the Security Agreement should be amended to
address those modifications.
3. The Debtor now wishes to amend and supplement the Security
Agreement it issued on November 14, 1991 in order to address the
above-referenced modifications made to the Credit Agreement.
ARTICLE II
AMENDMENTS
1. The Security Agreement is amended by eliminating the language
in paragraph 6 thereof in its entirety and inserting, in its place, the
following:
"6. SALE OF INVENTORY AND EQUIPMENT. As long as no
Acceleration, Termination or Maturity (each as hereinafter defined) has
occurred, the Debtor will have the right to process and sell the Inventory in
the regular course of its business at customary prices (but in no event may the
Debtor transfer any Inventory in satisfaction of any debt), to dispose of
Equipment in the regular course of its business provided the Equipment disposed
of is (a) either obsolete in Debtor's business or (b) replaced with other
Equipment, which replacement Equipment will be Collateral and subject to this
Agreement and subject to the Credit Agreement. The Debtor will give the
Administrative Agent notice of any returned Inventory with a total value
exceeding $25,000 per return."
114
2. The Security Agreement is amended by eliminating the language
in paragraph 13.1 thereof in its entirety and inserting, in its place, the
following:
"13.1. If (i) the Revolving Commitment is terminated in
accordance with Section 7.2(a) or Section 7.2(c) of the Credit Agreement (a
"Termination"), or (ii) all or any portion of the unpaid principal amount of
the Notes or Obligations is accelerated in accordance with Section 7.2(a) or
Section 7.2(c) of the Credit Agreement (an "Acceleration"), or (iii) any of
such Notes or Obligations are not paid at the Termination Date (as defined in
the Credit Agreement) (a "Maturity"), the Administrative Agent may exercise any
one or more of the rights and remedies granted pursuant to this Security
Agreement, the Credit Agreement and/or applicable law (including those given to
a secured party under the Pennsylvania Uniform Commercial Code, as it may be
amended from time to time), including but not limited to the right upon default
and after an Acceleration, a Termination or a Maturity to take possession and
sell, lease or otherwise dispose of the Collateral and, at its option, operate,
use or exercise any rights of ownership pertaining to the Collateral as the
Administrative Agent deems necessary to preserve the value and receive the
benefits of the Collateral. Upon the occurrence of an Acceleration, a
Termination or a Maturity, the Administrative Agent may, so far as the Debtor
can give authority therefor, enter upon any premises on which the Collateral or
any part thereof may be situated and take possession and remove the same
therefrom. The Administrative Agent may require the Debtor to make the
Collateral available to the Administrative Agent at a place to be designated by
the Administrative Agent that is reasonably convenient to both parties. The
Debtor waives all claims for damages by reason of any seizure, repossession,
retention, use or sale of the Collateral under the terms of this Security
Agreement. References in other paragraphs of this Security Agreement to
"Acceleration" shall mean an Acceleration or a Maturity."
3. The Security Agreement is amended by eliminating the language
in paragraph 14 thereof in its entirety (except as provided in paragraph 4
hereinbelow) and inserting, in its place, the following:
"14. RIGHTS OF THE ADMINISTRATIVE AGENT; POWER OF
ATTORNEY. The Debtor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer thereof, with full power of substitution,
as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of the
-2-
115
Debtor or in its name, from time to time in the Administrative Agent's
discretion, for the purpose of carrying out the terms of this Security
Agreement, upon the occurrence of an Acceleration, a Termination or a Maturity,
to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Security Agreement and, without limiting the generality of the foregoing,
the Debtor hereby gives the Administrative Agent the power and right, on behalf
of the Debtor, after an Acceleration, a Termination or a Maturity, and without
notice (except such notice as may be required by the Credit Agreement) to or
assent by the Debtor, to do the following:"
4. Notwithstanding anything to the contrary contained in
paragraph 3 hereinabove, paragraphs 14.1, 14.2, 14.3, 14.4 and the last
unnumbered paragraph which follows paragraph 14.4 of the Security Agreement
remain unchanged.
DEBTOR:
XXXX LIFE SCIENCES INC.
By:
-------------------------------
Print Name: Xxxxxx X. Xxxx
Title: Treasurer
SECURED PARTY:
CORESTATES BANK, N.A., AS
ADMINISTRATIVE AGENT
By:
-------------------------------
Print Name: Xxxxxx X. Xxxxx
Title: Vice President
-3-
116
AMENDMENT NO. 1 dated November 22, 1991 to SECURITY AGREEMENT dated as
of November 14, 1991 granted by TECHNOLOGY/SCIENTIFIC SERVICES, INC. (the
"Debtor") to CORESTATES BANK, N.A., a national banking association which also
conducts business as Philadelphia National Bank and as CoreStates First
Pennsylvania Bank, as Administrative Agent (the "Administrative Agent").
ARTICLE I
BACKGROUND
The Debtor and the Administrative Agent acknowledge that:
1. In accordance with the terms of a Credit Agreement and other
Loan Documents (as defined in the Credit Agreement) dated as of November 14,
1991, the Debtor executed and delivered a Security Agreement, dated as of
November 14, 1991, to the Administrative Agent.
2. Certain modifications were made to the Credit Agreement
shortly before its execution and the Security Agreement should be amended to
address those modifications.
3. The Debtor now wishes to amend and supplement the Security
Agreement it issued on November 14, 1991 in order to address the
above-referenced modifications made to the Credit Agreement.
ARTICLE II
AMENDMENTS
1. The Security Agreement is amended by eliminating the language
in paragraph 6 thereof in its entirety and inserting, in its place, the
following:
"6. SALE OF INVENTORY AND EQUIPMENT. As long as no
Acceleration, Termination or Maturity (each as hereinafter defined) has
occurred, the Debtor will have the right to process and sell the Inventory in
the regular course of its business at customary prices (but in no event may the
Debtor transfer any Inventory in satisfaction of any debt), to dispose of
Equipment in the regular course of its business provided the Equipment disposed
of is (a) either obsolete in Debtor's business or (b) replaced with other
Equipment, which replacement Equipment will be Collateral and subject to this
Agreement and subject to the Credit Agreement. The Debtor will give the
Administrative Agent notice of any returned Inventory with a total value
exceeding $25,000 per return."
117
2. The Security Agreement is amended by eliminating the language
in paragraph 13.1 thereof in its entirety and inserting, in its place, the
following:
"13.1. If (i) the Revolving Commitment is terminated in
accordance with Section 7.2(a) or Section 7.2(c) of the Credit Agreement (a
"Termination"), or (ii) all or any portion of the unpaid principal amount of
the Notes or Obligations is accelerated in accordance with Section 7.2(a) or
Section 7.2(c) of the Credit Agreement (an "Acceleration"), or (iii) any of
such Notes or Obligations are not paid at the Termination Date (as defined in
the Credit Agreement) (a "Maturity"), the Administrative Agent may exercise any
one or more of the rights and remedies granted pursuant to this Security
Agreement, the Credit Agreement and/or applicable law (including those given to
a secured party under the Pennsylvania Uniform Commercial Code, as it may be
amended from time to time), including but not limited to the right upon default
and after an Acceleration, a Termination or a Maturity to take possession and
sell, lease or otherwise dispose of the Collateral and, at its option, operate,
use or exercise any rights of ownership pertaining to the Collateral as the
Administrative Agent deems necessary to preserve the value and receive the
benefits of the Collateral. Upon the occurrence of an Acceleration, a
Termination or a Maturity, the Administrative Agent may, so far as the Debtor
can give authority therefor, enter upon any premises on which the Collateral or
any part thereof may be situated and take possession and remove the same
therefrom. The Administrative Agent may require the Debtor to make the
Collateral available to the Administrative Agent at a place to be designated by
the Administrative Agent that is reasonably convenient to both parties. The
Debtor waives all claims for damages by reason of any seizure, repossession,
retention, use or sale of the Collateral under the terms of this Security
Agreement. References in other paragraphs of this Security Agreement to
"Acceleration" shall mean an Acceleration or a Maturity."
3. The Security Agreement is amended by eliminating the language
in paragraph 14 thereof in its entirety (except as provided in paragraph 4
hereinbelow) and inserting, in its place, the following:
"14. RIGHTS OF THE ADMINISTRATIVE AGENT; POWER OF
ATTORNEY. The Debtor hereby irrevocably constitutes and appoints the
Administrative Agent and any officer thereof, with full power of substitution,
as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of the Debtor or in its name, from time to
time in the Administrative
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Agent's discretion, for the purpose of carrying out the terms of this Security
Agreement, upon the occurrence of an Acceleration, a Termination or a Maturity,
to take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Security Agreement and, without limiting the generality of the foregoing,
the Debtor hereby gives the Administrative Agent the power and right, on behalf
of the Debtor, after an Acceleration, a Termination or a Maturity, and without
notice (except such notice as may be required by the Credit Agreement) to or
assent by the Debtor, to do the following:"
4. Notwithstanding anything to the contrary contained in
paragraph 3 hereinabove, paragraphs 14.1, 14.2, 14.3, 14.4 and the last
unnumbered paragraph which follows paragraph 14.4 of the Security Agreement
remain unchanged.
DEBTOR:
TECHNOLOGY/SCIENTIFIC
SERVICES, INC.
By:
-------------------------------
Print Name: Xxxxxx X. Xxxx
Title: Secretary & Treasurer
SECURED PARTY:
CORESTATES BANK, N.A., AS
ADMINISTRATIVE AGENT
By:
-------------------------------
Print Name: Xxxxxx X. Xxxxx
Title: Vice President
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OPEN-END MORTGAGE, ASSIGNMENT OF RENTS
AND LEASES AND SECURITY AGREEMENT
This Open-End Mortgage, Assignment of Rents and Leases and Security
Agreement is made by XXXX INTERNATIONAL CORP. (formerly known as Technology
Incorporated), an Ohio corporation with its principal place of business at 0
Xxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxx 00000-0000 (the "Mortgagor"), for the
benefit of CORESTATES BANK, N.A., A NATIONAL BANKING ASSOCIATION WHICH ALSO
CONDUCTS BUSINESS AS PHILADELPHIA NATIONAL BANK AND AS CORESTATES FIRST
PENNSYLVANIA BANK, with its principal place of business at Broad and Xxxxxxxx
Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, as Administrative Agent (the
"Administrative Agent) (said Administrative Agent being also referred to
hereinafter as the "Mortgagee") for the Lenders under the Credit Agreement,
hereinafter described, of even date herewith between and among XXXX
International Corp., Technology/Scientific Services, Inc., XXXX Life Sciences,
Inc., Society Bank, National Association, The Central Trust Company, N.A.,
Comerica Bank, CoreStates Bank, N.A., a national banking association which also
conducts business as Philadelphia National Bank and as CoreStates First
Pennsylvania Bank, and Security Pacific National Bank (collectively the
"Lenders") under the Credit Agreement hereinafter described, as follows:
SECTION 1
GRANT
1.1 PROPERTY. The Mortgagor hereby mortgages, warrants, grants,
bargains, sells, encumbers, conveys, assigns and transfers to the Mortgagee,
its successors and assigns forever, all estate, title and interest in and to
the following, now existing or hereafter arising (collectively, the
"Property"):
1.1.1 the real estate described in Exhibit A attached
hereto, all of the estate, title and interest of the Mortgagor in law or
equity, of, in and to such real estate and all of the privileges, easements and
appurtenances belonging to such real
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estate, including all heretofore or hereafter vacated streets or alleys which
abut such real estate;
1.1.2 all buildings and improvements of every kind and
description now existing or hereafter placed on such real estate and all
fixtures, machinery, appliances, equipment, furniture and personal property of
every kind whatsoever owned by Mortgagor and located in or on, or attached to,
and used or intended to be used in connection with the operation of such real
estate, buildings, structures or other improvements thereon or in connection
with any construction being conducted or which may be conducted thereon,
including but not limited to the electric, water, laundry, incinerating and
power equipment; engines; pipes; pumps; tanks; motors; conduits; switchboards;
plumbing, lifting, cleaning, fire prevention, fire extinguishing,
refrigerating, ventilating and communications apparatus; boilers, ranges,
furnaces, oil burners or units thereof; radiators; heaters; appliances;
air-cooling and air conditioning apparatus; vacuum cleaning systems; elevators;
escalators; shades; awnings, screens, doors, storm doors and windows; stoves;
refrigerators; attached cabinets; partitions; ducts and compressors; rugs and
carpets; draperies; beds, tables, lamps and all other furniture and
furnishings;
1.1.3 all rents, leases, issues and profits arising out
of any of the foregoing, including all insurance policies and payments made
under insurance policies relating to any of the foregoing and judgments, awards
and settlements resulting from any condemnation proceeding or similar taking
against the foregoing property under the power of eminent domain;
1.1.4 the Mortgagor's interest in all contracts for the
design, construction, management, maintenance or operation of such real estate,
all licenses and permits therefor and all books and records related thereto;
and
1.1.5 all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to any of the foregoing,
and the proceeds of all of the foregoing.
1.2 SECURITY. To have and to hold the Property to the Mortgagee
and its successors and assigns forever, for the uses and purposes herein set
forth to secure the payment of the Indebtedness as defined in Section 2, below,
and the performance of all obligations of the Mortgagor hereunder.
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SECTION 2
INDEBTEDNESS
This conveyance, however, is made to secure the payment of (a) the Term
Note of the Mortgagor of even date herewith payable to the order of Society
Bank, National Association in the original principal amount of $2,870,000; (b)
the Term Note of the Mortgagor of even date herewith payable to the order of
The Central Trust Company, N.A. in the original principal amount of $2,880,000;
(c) the Term Note of the Mortgagor of even date herewith payable to the order
of Comerica Bank in the original principal amount of $1,800,000; (d) the Term
Note of the Mortgagor of even date herewith payable to the order of CoreStates
Bank, N.A., a national banking association which also conducts business as
Philadelphia National Bank and as CoreStates First Pennsylvania Bank, in the
original principal amount of $2,880,000; (e) the Term Note of the Mortgagor of
even date herewith payable to the order of Security Pacific National Bank in
the original principal amount of $3,600,000; (f) the Revolving Credit Note of
the Mortgagor of even date herewith payable to the order of CoreStates Bank,
N.A., a national banking association which also conducts business as
Philadelphia National Bank and as CoreStates First Pennsylvania Bank, as
Administrative Agent for: (1) Society Bank, National Association; (2) The
Central Trust Company, N.A.; (3) Comerica Bank; and (4) CoreStates Bank, N.A.
in the original principal amount of $2,500,000; (g) the standby letter of
credit agreements between the Mortgagor and The Central Trust Company, N.A. one
dated November 3, 1986 with respect to a letter of credit in stated amount of
$613,900 and one dated November 8, 1990 with respect to a letter of credit in
stated amount of $1,227,800; (h) all Obligations (as defined in the Credit
Agreement of even date herewith among the Mortgagor, the Lenders, the
Administrative Agent and other parties described therein (as amended from time
to time, the "Credit Agreement")) now existing and hereafter arising under the
Credit Agreement; (i) all amendments, extensions and renewals of any of the
foregoing; (j) all future advances made pursuant to Section 8 hereof and all
advances or expenses of any kind made by the Mortgagee pursuant to the
provisions of this Mortgage, (the foregoing collectively referred to as the
"Indebtedness").
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SECTION 3
REPRESENTATIONS, WARRANTIES AND COVENANTS
The Mortgagor covenants, represents, warrants and agrees with the
Mortgagee as follows:
3.1 TITLE. The Mortgagor is the lawful owner of the Property;
title to the Property is vested in the Mortgagor and is free, clear and
unencumbered except for Permitted Liens (as defined in the Credit Agreement);
there has been no prior assignment of any of the Mortgagor's rights in the
Property; the Mortgagor has good right and full power to convey and encumber
the Property and to execute this Mortgage; the Mortgagor will make such further
assurances of title as the Mortgagee may require; and the Mortgagor will
warrant and defend the Property against all claims and demands whatsoever.
3.2 INDEBTEDNESS. The Mortgagor will promptly pay, or cause to be
paid, the Indebtedness when due.
3.3 IMPOSITIONS. The Mortgagor will pay, or cause to be paid,
when due:
3.3.1 All of the following (hereinafter collectively
called the "Impositions"): all real estate taxes, personal property taxes,
assessments, water and sewer rates and charges, and all other governmental
levies and charges, of every kind and nature whatsoever, general and special,
ordinary and extraordinary, which are assessed, levied, confirmed, imposed or
become a lien upon or against the Property or any portion thereof, and all
taxes, assessments and charges upon the rents, issues, income or profits of the
Property, or which become payable with respect thereto or with respect to the
occupancy, use or possession of the Property, whether such taxes, assessments
or charges are levied directly or indirectly;
3.3.2 On the first day of each month after the occurrence
of any one or more Events of Default (as that term is defined below), a deposit
with the Mortgagee equal to one-twelfth of the annual charges, as estimated by
the Mortgagee, for the Impositions (as defined above) and premiums for
insurance required under Section 3.7, below. Such amount will be held by or on
behalf of the Mortgagee and will be applied to pay such Impositions and
premiums when the same become due. The Mortgagee will not be required to pay
any interest or earnings on such sums. The Mortgagor hereby pledges all such
sums as additional collateral for the Indebtedness. If the amount held by the
Mortgagee is not sufficient to pay the Impositions and premiums when due, the
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Mortgagor will, promptly upon request of the Mortgagee, pay to the Mortgagee
any amount necessary to make up such deficiency.
3.3.3 If the Mortgagee is not establishing an escrow for
Impositions, then within 20 days after demand therefor, the Mortgagor will
deliver to the Mortgagee the original, or a photostatic copy, of the official
receipt evidencing payment of Impositions or other proof of payment
satisfactory to the Mortgagee. Notwithstanding the provisions of Section
3.3.1, any tax or special assessment which is a lien on the Property may be
paid in installments provided that each installment is paid on or prior to the
date when the same is due without the imposition of any penalty.
3.4 COMPLIANCE WITH LAWS. The Mortgagor will promptly comply or
cause compliance with all present and future laws, ordinances, rules,
regulations and other requirements of all governmental authorities having or
claiming jurisdiction of or with respect to the Property or any portion thereof
or the use or occupancy thereof.
3.5 CONDITION OF PROPERTY. The Mortgagor will keep and maintain,
or cause to be kept and maintained, the Property (including all improvements
thereon and the sidewalks, sewers, and curbs) in good order and condition, will
make or cause to be made, as and when the same becomes necessary, all
structural and nonstructural and all ordinary and extraordinary repairs and all
maintenance necessary to that end, will suffer no waste to the Property, and
will make all repairs and maintenance to the Property in a good and workmanlike
manner.
3.6 IMPROVEMENTS. The Mortgagor will not remove or demolish, or
suffer or permit others to remove or demolish, any improvements installed or
placed on the Property (other than tenant improvements) or, subject to the
provisions of Section 3.5, cause or permit such improvements to be materially
changed or altered without the prior written consent of the Mortgagee, as well
as the Mortgagee's prior written consent to the plans and specifications
relating thereto, and that the Mortgagor will not institute or cause to be
instituted any proceedings that could change the permitted use of the Property
from the use presently zoned.
3.7 INSURANCE. The Mortgagor will keep all improvements, if any,
now on, or that hereafter may be put upon, the Property, including fixtures and
all personal property owned by the Mortgagor
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and used in the operation of the Property, insured at all times for the benefit
of the Mortgagee and the Mortgagor, as their respective interests may appear,
against loss or damage by fire, and such other risks of damage, hazards,
casualties and contingencies and in the manner and form and in the amounts as
specified in writing by the Mortgagee from time to time, subject to the
requirements of the Credit Agreement and the following additional terms and
conditions:
3.7.1 Such insurance will be issued by a company or
companies and in amounts reasonably acceptable to, and in every respect
satisfactory to, the Mortgagee and will contain a provision requiring that the
coverage evidenced thereby will not be terminated or materially modified
without 30 days' prior written notice to the Mortgagee. If the Mortgagor fails
to carry any insurance required to be carried by the Mortgagor under the terms
of this Mortgage, the Mortgagee, at its option, may procure and maintain such
insurance and the Mortgagor will promptly reimburse the Mortgagee for any
premiums paid by the Mortgagee for such insurance. The originals or
appropriate certificates of all policies of insurance required to be carried
under this Mortgage, bearing notations evidencing the payment of premiums or
accompanied by other evidence satisfactory to the Mortgagee of such payment,
will be delivered to the Mortgagee concurrently with the execution and delivery
hereof. The Mortgagor will deliver to the Mortgagee a new policy (or
certificate, in the case of insurance for which only certificates have been
previously furnished) bearing such notation or accompanied by such other
evidence as replacement for any expiring policy at least 30 days before the
date of such expiration.
3.7.2 All policies of insurance required by this Section
3.7 will contain a standard mortgagee clause in favor of the Mortgagee and a
waiver of insurer's right of subrogation against funds paid under the standard
mortgagee endorsement. In case of a loss payable under such insurance for
damage to or destruction of the Property, the right to adjust all claims under
such insurance policies (jointly with the Mortgagor), and the application of
the proceeds of any such claim, are assigned to the Mortgagee. The Mortgagor
hereby assigns to the Mortgagee all amounts recoverable under any such policy.
The amount collected by the Mortgagee, at the option of the Mortgagee, may be
used in any one or more of the following ways: (i) applied to the payment of
any sums then in default under the Indebtedness; (ii) used to fulfill any of
the covenants contained herein which the Mortgagor has failed to fulfill, as
the Mortgagee may determine; (iii) unless
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the insurer denies liability to any insured, used to restore the Property to a
condition satisfactory to the Mortgagee on such terms and conditions as the
Mortgagee may determine; (iv) released to the Mortgagor, provided that if any
sums remain after satisfaction of items (i) or (ii), above, the Mortgagee, at
its election, may apply the same upon the Indebtedness, whether the
Indebtedness is then matured or unmatured. The Mortgagee is hereby irrevocably
appointed by the Mortgagor as attorney-in-fact of the Mortgagor to assign any
policy in the event of the foreclosure of this Mortgage or other extinguishment
of the Indebtedness, and the Mortgagor will have no right to reimbursement for
premiums unearned at the time of any such assignment. The rights of the
Mortgagee under this Section 3.7.2 are subject to the rights of the holder of
the mortgage granted to Gem City Savings Association and recorded in Mortgage
Book 457 page 220 of the Xxxxxx County, Ohio Recorder's Office, and also to the
rights of the Mortgagor under Section 3.7.3 and 3.7.4 of this Mortgage.
3.7.3 If the Property is damaged or destroyed by fire or
other casualty and if no Event of Default has occurred and is continuing, the
Mortgagor, notwithstanding the rights of the Mortgagee under Section 3.7.2
hereof, shall have the right to the proceeds of insurance policies for the
purpose of restoring the property damaged or destroyed to such extent as the
Mortgagor desires for its uses and purposes, in accordance with plans and
specifications approved in writing by the Mortgagee, which approval shall not
be unreasonably withheld, and the Mortgagor and the Mortgagee will apply for
such purpose so much as may be necessary of any proceeds of insurance resulting
from claims for losses under the insurance policies required to be carried by
this Section 3.7. In such event all insurance proceeds of $50,000 or less for
any one loss shall be paid to the Mortgagor for such purpose. All such
proceeds in excess of such amount for any one loss shall be paid to and held by
the Mortgagee in a separate interest bearing disbursement account and the
Mortgagee will apply so much as may be necessary of the proceeds to payment of
the costs incurred by the Mortgagee for the restoration of the Property, either
on completion thereof or as the work progresses as directed by the Mortgagor,
subject to the Mortgagee securing such protection against mechanics liens as
the Mortgagee may reasonably require. If the insurance proceeds will be
insufficient to pay in full the costs of restoration, the Mortgagor will, prior
to the commencement thereof, deposit the deficiency with the Mortgagee in the
separate disbursement account, which deposit shall first be exhausted before
any disbursement of the insurance proceeds. Any balance of such
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proceeds and any investment income thereon remaining after payment of all costs
of restoration, and all costs reasonably incurred by the Mortgagee in
administering and disbursing the fund, shall be paid to the Mortgagor.
3.7.4 Any insurance proceeds applied to the Indebtedness will
be applied first to any payment required to be made by Section 2.5.1(g) of the
Credit Agreement.
3.8 SALE, TRANSFER OR ENCUMBRANCE. Except as permitted by the
Credit Agreement, the Mortgagor will not further mortgage, sell or convey,
grant a deed of trust, pledge, grant a security interest in leases, execute a
land contract or installment sales contract, or otherwise dispose of, further
encumber or suffer the encumbrance of, whether by operation of law or
otherwise, any or all of its interest in the Property without the Mortgagee's
prior written consent.
3.9 MECHANICS LIENS. The Mortgagor will keep and maintain the
Property free from all liens of persons supplying labor and materials for the
construction, modification, repair or maintenance of any building or
improvements whether on the Property or not. If any such lien is filed against
the Property, the Mortgagor will discharge the same of record within 30 days
after the lien is filed or, if not filed, within 30 days after the Mortgagor
has notice thereof, provided that, in connection with any such lien or claim
that the Mortgagor may in good faith desire to contest, the Mortgagor may
contest the same by appropriate legal proceedings, diligently prosecuted, upon
the posting of a bond or other security satisfactory to the Mortgagee.
3.10 EMINENT DOMAIN. All awards heretofore or hereafter made by
any public or quasi-public authority to the present and any subsequent owner of
the Property by virtue of an exercise of the right of eminent domain by such
authority, including any award for a taking of title, possession or right of
access to a public way, or for any change of grade of streets affecting the
Property, are hereby assigned to the Mortgagee and the Mortgagee, at its
option, is hereby authorized, directed and empowered to collect and receive the
proceeds of any such award from the authorities making the same and to give
proper receipts and acquittances therefor, and, at the Mortgagee's election,
may use such proceeds in any one or more of the following ways: (a) use the
same or any part thereof to fulfill any of the covenants contained herein as
the Mortgagee may determine, (b) use the same or any part thereof to replace or
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restore the Property to a condition satisfactory to the Mortgagee, (c) apply
the same against the Indebtedness, or (d) release the same to the Mortgagee.
The Mortgagee will have the right to intervene and participate (jointly with
the Mortgagor) in any proceedings for and in connection with any such taking.
Upon the request of the Mortgagee, the Mortgagor will make, execute and deliver
all assignments and other instruments sufficient for the purpose is assigning
all such awards to the Mortgagee free, clear and discharged of all
encumbrances.
3.11 UNPAID IMPOSITIONS. In the event that any governmental agency
claims that any tax or other governmental charge or Imposition is due, unpaid
or payable by the Mortgagor or the Mortgagee upon the Indebtedness (other than
income tax, franchise tax or similar tax on the interest or premium receivable
by the Mortgagee thereunder) and including any recording tax, documentary
stamps or other tax or imposition on any of the Indebtedness or this Mortgage,
the Mortgagor forthwith will pay such tax and, within a reasonable time
thereafter, deliver to the Mortgagee satisfactory proof of payment thereof or
if the Mortgagor is contesting the same in good faith, the Mortgagor will
establish with the Mortgagee security in form, substance and amount reasonably
acceptable to the Mortgagee for the payment thereof.
3.12 ENVIRONMENTAL MATTERS.
3.12.1 Except as disclosed in the Disclosure Statement
referred to in the Credit Agreement and to the best of the Mortgagor's
knowledge after due investigation, there have been no complaints, citations,
claims, notices, information requests, orders (including but not limited to
clean up orders) or directives on environmental grounds made or delivered to,
pending or served on, or anticipated by the Mortgagor or its agents, or of
which the Mortgagor or its agents, after due investigation, including
consideration of the previous uses of the Property, are aware or should be
aware (i) issued by a governmental department or agency having jurisdiction
over the Property or (ii) issued or claimed by any persons, agencies, or
organizations and affecting the Property, or any part thereof.
3.12.2 To the best of the Mortgagor's knowledge, after due
investigation, including but not limited to consideration of the previous uses
of the Property, there have not been and are not now any solid waste, hazardous
waste, hazardous substances, toxic substances, toxic chemicals, pollutants or
contaminants,
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underground storage tanks, purposeful dumps or accidental spills in, on or
about the Property or any part thereof, except those for which appropriate
regulatory permits have been obtained and those which are present in quantities
for which permits are not required under applicable local, state or federal
law, rule or regulation.
3.12.3 To the best of the Mortgagor's knowledge, after due
investigation, including consideration of the previous uses of the Property,
there have not been and are not now any material or reportable emissions,
spills, seepage, damage, releases or discharges into or upon the air, soils or
improvements located thereon, surface water or ground water, or any sewer or
septic system servicing the Property, of any toxic or hazardous substances,
pollutants, contaminants, solid waste or hazardous waste which have affected or
are now affecting the Property or any part thereof.
3.12.4 To the best of the Mortgagor's knowledge, after due
investigation, the Mortgagor has obtained and will maintain all necessary
approvals, permits, licenses, certificates, or satisfactory clearances from all
governmental authorities, utility companies or development-related entities,
with respect to the Mortgagor's use of the Property and the Mortgagor's
discharge of any chemicals, liquids and emissions, into the atmosphere, ground
water or surface water, including but not limited to sewers or septic systems,
from the Property.
3.12.5 To the best of the Mortgagor's knowledge, after due
investigation, the Mortgagor and its business, operations, equipment or other
facilities at the Property are in compliance in all material respects with all
applicable federal, state and local statutes, laws, regulations and ordinances.
3.12.6 Except as disclosed in the Disclosure Statement
referred to in the Credit Agreement and to the best of the Mortgagor's
knowledge, no asbestos or asbestos containing materials are installed, used or
incorporated into the Mortgagor's property, and no asbestos or asbestos
containing materials have been disposed of on the Property.
3.12.7 Except as disclosed in the Disclosure Statement
referred to in the Credit Agreement and to the best of the Mortgagor's
knowledge, no polychlorinated biphenyls ("PCB's") are located on or in the
Property, in the form of electrical
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transformers, fluorescent light fixtures with ballasts, cooling oils or any
other device or form.
3.12.8 Neither the Mortgagee nor any Lender will be deemed
to assume any liability or obligation for loss, damage, fines, penalties,
claims or duty to clean-up or dispose of wastes or materials on or relating to
the Property merely by conducting any inspections of the Property or by
obtaining title to the Property by foreclosure, deed in lieu of foreclosure or
otherwise. The Mortgagor agrees to remain fully liable and will indemnify and
hold harmless the Mortgagee and each Lender from any costs, expenses, clean-up
costs, waste disposal costs, litigation costs, fines, penalties, fines within
the meaning of CERCLA, as amended by XXXX, and other related liabilities.
These covenants will survive the release or satisfaction of this Mortgage or
the foreclosure thereof.
3.13 Default Under Gem City Savings Association Mortgage.
Mortgagor will not permit a default (or an "Event of Default" as may be defined
therein) to occur under the terms, covenants or conditions of any other
mortgage, lien or encumbrance filed against the Property.
SECTION 4
ASSIGNMENT OF RENTS AND LEASES
4.1 ASSIGNMENT. The Mortgagor hereby transfers and assigns to the
Mortgagee all present and future leases of all or any part of the Property (the
"Leases"), all guarantees of any lessee's performance thereunder, and all
rents, income, revenues and profits arising out of the Property, all as further
security for the payment of the Indebtedness. The rights assigned hereunder
include but are not limited to all of the Mortgagor's rights (a) to make
material modifications of the Leases; (b) to terminate or to accept the
surrender thereof; (c) to waive or release the lessees from the observance or
performance by the lessees of any material covenant or condition of the leases;
and (d) to give any consent to any assignment of the Leases or any sublease of
any part of the Property. Any and all Leases will be arms-length agreements
(with persons unrelated to the Mortgagor, the Borrowers or the Guarantors) and
will be at prevailing market rates and terms.
4.2 DUTIES OF THE MORTGAGOR. The Mortgagor will observe and
perform all covenants and conditions to be observed or performed by
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the lessor under the Leases and enforce the observance and performance of the
Leases by the lessees. The Mortgagor will not cancel, surrender, terminate or
materially alter, amend or modify any Leases, release any party liable
thereunder or consent to the assignment of the interests of any lessees without
the prior written consent of the Mortgagee which consent will not be
unreasonably withheld; and the Mortgagee will be deemed to have consented to
any such items if the Mortgagee fails to object thereto within 5 days of
receipt of a written request for the Mortgagee's consent. The Mortgagor will
not permit the prepayment of any rents under the Leases for more than 30 days
in advance of their due date without the prior written consent of the
Mortgagee. The form of lease to be used for tenants in the Property will be
submitted to the Mortgagee.
4.3 INDEMNIFICATION. The Mortgagee will not be obligated to
perform or discharge any obligation or duty of the Mortgagor under any of the
Leases, and the acceptance of this Assignment does not constitute an assumption
of any such obligation or duty, regardless of whether Mortgagee is collecting
the rent from any such Leases, and Mortgagor specifically acknowledges that
Mortgagee does not have to perform any of Mortgagor's obligations or duties
under the Leases prior to or subsequent to Mortgagee's collection of such
rents. The Mortgagee will not be deemed to have any responsibility for the
control, care, management or repair of the Property or any responsibility or
liability for any negligence in the management, operation, upkeep, repair or
control of the Property resulting in loss, injury or death to any lessee,
licensee, employee, stranger or other person. The Mortgagor will indemnify and
hold the Mortgagee harmless against all liabilities, losses and damages that
the Mortgagee may incur under the Leases or under or by reason of this
assignment except for the Mortgagee's wilful negligent acts or liabilities,
losses and damages arising out of the Mortgagee's possession or control of the
Property.
4.4 RENT. Provided that no Event of Default (as hereinafter
defined) exists hereunder and Acceleration (as hereinafter defined) has not
occurred, the Mortgagor will have the right to collect all rents under any
Lease (but not more than 30 days in advance of their due date), provided that
upon the occurrence of an Event of Default hereunder and Acceleration
(hereinafter defined), the Mortgagee may take such actions with respect to the
Leases and the rents, issues and profits (including the notification to lessees
to make rent payments directly to the Mortgagee) from the Property, as
permitted by law or in equity, including, but not limited to, the remedies set
forth in Section 6, below.
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SECTION 5
UNIFORM COMMERCIAL CODE SECURITY AGREEMENT
5.1 SECURITY AGREEMENT. This instrument is intended to be a
security agreement pursuant to the Uniform Commercial Code for any of the items
specified above as part of the Property which may be subject to a security
interest pursuant to the applicable version of the Uniform Commercial Code, and
the Mortgagor hereby grants the Mortgagee a security interest in such items.
5.2 FILINGS. The Mortgagor agrees that this instrument, or a
reproduction thereof, may be filed in the real estate records or other
appropriate index, as a financing statement for any of the items specified
above (including fixtures) as part of the Property. Any reproduction of this
instrument or of any other security agreement or financing statement will be
sufficient as a financing statement. The Mortgagor agrees to execute and
deliver to the Mortgagee upon request, any financing statements, as well as
extensions, renewals and amendments thereof, and reproductions of this
instrument in such form as the Mortgagee may require to perfect a security
interest with respect to said items. The Mortgagor will pay all costs of
filing such financing statement and any extensions, renewals, amendments and
releases thereof, and will pay all reasonable costs and expenses of any record
searches for financing statements the Mortgagee may require.
5.3 BOOKS AND RECORDS. The Mortgagor will keep its books, records
and documents concerning the Property at the Property or at the address set
forth in Section 7.5, below. The Mortgagee and its agents may examine and make
extracts and copies from the books, records and documents of the Mortgagor
which relate to the Property.
5.4 CONTRACTS. The Mortgagor will observe and perform all
covenants and conditions to be performed by the Mortgagor under any contracts
which are included within the Property, will enforce such contracts, will not
materially modify such contracts, terminate such contracts or release parties
thereto without consent of the Mortgagee and will not assign or encumber its
interest therein. The assignment and grant of a security interest in the
Property does not constitute an assumption by the Mortgagee of any obligation
or duty thereunder.
5.5 REMEDIES. Upon any Event of Default under this instrument and
after Acceleration (hereinafter defined), the
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Mortgagee will have the remedies of a secured party under the Uniform
Commercial Code and, at the Mortgagee's option, may also invoke the remedies
provided in this instrument and/or under applicable law. In exercising any of
said remedies, the Mortgagee may proceed against the items of real property and
any items of personal property specified above as part of the Property
separately or together and in any order whatsoever, without in any way
affecting the availability of the Mortgagee's remedies under the Uniform
Commercial Code or of the remedies in this instrument. Taking possession of
any of the Property and the performance of the obligations of the Mortgagor
thereunder will not operate to cure or waive any default or prohibit the taking
of any other action by the Mortgagee under any instrument or at law or in
equity to enforce the payment of the Indebtedness or to realize upon any other
security or guarantee therefor. The Mortgagee may, so far as the Mortgagor can
give authority therefor, enter upon any premises on which the Property or the
books and records relating to the Property are located and take possession of
and remove the same therefrom. The Mortgagor waives all claims for damages by
reason of any seizure, repossession, retention or sale of the Property under
the terms hereof. Any requirement of reasonable notice, if necessary, will be
met if such notice is mailed, postage prepaid, to the address of the Mortgagor
shown in Section 7.5 below at least 10 days before the time of the sale or
other disposition of the Property. The net proceeds arising from the
disposition of the Property, after deducting the Mortgagee's expenses, will be
applied to the Indebtedness in the order determined by the Mortgagee. If any
excess remains after the discharge of all of the Indebtedness and the payment
of all such expenses, it will be paid to the Mortgagor.
SECTION 6
DEFAULT; REMEDIES
6.1 EVENTS OF DEFAULT. The entire Indebtedness will become due,
at the option of the Mortgagee, if any one or more of the Events of Default as
defined in the Credit Agreement occurs and continues beyond any applicable
grace or notice period and if a determination has been made by the Majority
Lenders under Section 7.2 of the Credit Agreement to declare the Obligations to
be due and payable ("Acceleration"). An "Event of Default" under this
Agreement will have the same meaning given such term in the Credit Agreement.
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6.2 REMEDIES. Upon maturity of any of the Indebtedness or at any
time after an Event of Default and Acceleration (except as provided
hereinbelow), the Mortgagee will have all rights and remedies provided at law
or in equity or under this Mortgage, including the right to accelerate the
maturity of the Indebtedness and the right to foreclose the lien of this
Mortgage. Notwithstanding anything to the contrary contained in this Section
6.2, the rights and remedies granted to the Mortgagee subsequent to an Event of
Default, which rights and remedies are specified in Section 3.3.2 hereof, do
not require an Acceleration before the Mortgagee may exercise any of such
rights or remedies.
6.3 WAIVERS. The failure of the Mortgagee to exercise either or
both of its options to accelerate the maturity of the indebtedness secured
hereby and to foreclose the lien hereof following any Event of Default, or to
exercise any other option granted to the Mortgagee of partial payments of such
indebtedness, will neither constitute a waiver of any such default or of the
Mortgagee's options hereunder nor establish, extend or affect any grace period
for payments due under the Note, but such options will remain continuously in
force. Acceleration of maturity, once claimed hereunder by the Mortgagee, may,
at the Mortgagee's option, be rescinded by written acknowledgment to that
effect by the Mortgagee and will not affect the Mortgagee's right to accelerate
maturity upon or after any future default.
6.4 EXPENSES. In any proceeding to foreclose the lien of this
Mortgage or enforce any other remedy of the Mortgagee under the Indebtedness,
this Mortgage or any other document securing the Indebtedness, or in any other
proceeding whatsoever in connection with any of the Property in which the
Mortgagee is named as a party, there will be allowed and included, as
additional indebtedness in the judgment or decree resulting therefrom, all
expenses paid or incurred in connection with such proceeding by or on behalf of
the Mortgagee constituting attorneys' fees, appraisers' fees, outlays for
documentary and expert evidence, stenographers' charges, publication costs,
survey costs, and costs (which may be estimated as to items to be expended
after entry of such judgment or decree) of procuring all abstracts of title,
title searches and examinations, title insurance policies, Torrens certificates
and any similar data and assurances with respect to title to the Property as
the Mortgagee may deem reasonably necessary either to prosecute or defend in
such proceeding or to evidence to bidders at any sale pursuant to such decree
the true condition of the title to or value of the premises or the Property.
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All expenses of the foregoing nature, and such expenses as may be incurred in
the protection of any of the Property and the maintenance of the lien of this
Mortgage thereon, including, without limitation, the fees of any attorney
employed by the Mortgagee in any litigation affecting the Note, this Mortgage
or any of the Property, or in preparation for the commencement or defense of
any proceeding or threatened suit or proceeding in connection therewith, will
be immediately due and payable by the Mortgagor with interest thereon at the
Default Rate as defined in the Credit Agreement, but not higher than the
highest rate permitted by law.
6.5 PROCEEDS. The proceeds of any foreclosure sale of the
Property, or any part thereof, will be distributed and applied in the following
order of priority: (a) on account of all costs and expenses incident to the
foreclosure proceedings, including all such items as are mentioned in Section
6.4 hereof; (b) all other items that, under the terms of this Mortgage,
constitute secured indebtedness additional to that evidenced by the
Indebtedness, with interest thereon at the Default Rate as defined in the
Credit Agreement; (c) all principal and interest remaining unpaid under the
Indebtedness, in the order of priority specified by the Mortgagee in its sole
discretion; and (d) the balance to the Mortgagor or its successors or assigns,
as its interests may appear.
6.6 ADDITIONAL REMEDIES. If an Event of Default occurs and is
continuing and after Acceleration, the Mortgagee, at its option, in addition to
the other remedies provided herein or in law or equity, may proceed to enter
upon, take possession of, and manage and operate the Property and may proceed
to perform any or all obligations of the Mortgagor under the Leases, and
exercise the rights of the Mortgagor contained therein as fully as the
Mortgagor itself could, without regard to the adequacy of security for the
indebtedness hereby secured and with or without bringing any legal action or
causing any receiver to be appointed by any court; may let or re-let the
Property or any part thereof and enforce, modify, cancel or accept the
surrender of any of the Leases; may bring or defend any suits in connection
with the possession of the Property or any part thereof, in the name of either
the Mortgagor or the Mortgagee; may make such repairs as the Mortgagee may deem
appropriate; may pay out of rents, income or profits any liens, taxes,
assessments, insurance premiums, utility charges or costs of keeping the
Property in good condition and repair; may in the name of either the Mortgagor
or the Mortgagee xxx for or otherwise
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collect and receive all rents, issues and profits, including those past due and
unpaid; and may do all other things the Mortgagee may deem necessary or proper
to protect its security. Entry upon and taking possession of the Property and
the collection of the rents and the application thereof will not operate to
cure or waive any default under any instrument given by the Mortgagor to the
Mortgagee or prohibit the taking of any other action by the Mortgagee under any
such other instrument, or at law or in equity to enforce the payment of the
indebtedness secured hereby or to realize on any other security or guarantee.
6.7 RECEIVER. Upon or at any time after the occurrence of an
Event of Default hereunder and Acceleration, the Mortgagee may request the
appointment of a receiver of the Property. Such appointment may be made either
before or after any foreclosure action or sale, without notice and without
regard to the solvency or insolvency, at the time of application for such
receiver, of the person or persons, if any, liable for the payment of the
indebtedness secured hereby without regard to the value of the Property at such
time and whether or not the same is then occupied as a homestead and without
bond being required of the applicant. Such receiver will have the power to
take possession, control and care of the Property and to collect all rents,
issues, deposits and profits thereof.
6.8 RIGHTS OF MORTGAGEE. If the Mortgagor fails to pay any
Impositions or to make any other payment required to be paid by the Mortgagor
under this Mortgage at the time and in the manner provided in this Mortgage, or
if an Event of Default occurs under this Mortgage, then without limiting the
generality of any other provision of this Mortgage and without waiving or
releasing the Mortgagor from any of its obligations hereunder, the Mortgagee
will have the right, but will be under no obligation, to pay any Impositions or
other payment, or any sums due under this Mortgage, and may perform any other
act or take such action as may be appropriate to cause such other term,
covenant, condition or obligation to be promptly performed or observed on
behalf of the Mortgagor, provided that, unless in the Mortgagee's judgment the
sending of a l0-day notice will impair the security of the lien of the
Mortgage, the Mortgagee will give the Mortgagor 10 days' prior written notice
prior to making any such payment. In any such event, the Mortgagee and any
person designated by the Mortgagee will have, and is hereby granted, the right
to enter upon the Property at any time and from time to time for the purpose of
performing any such act or taking any such action, and all monies
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expended by the Mortgagee in connection with making such payment or performing
such act (including, but not limited to, legal expenses and disbursements),
together with interest thereon at the Default Rate specified in the Credit
Agreement, but not higher than the highest rate permitted by law, from the date
of each such expenditure, will be paid by the Mortgagor to the Mortgagee
forthwith upon demand by the Mortgagee and will be secured by this Mortgage.
SECTION 7
MISCELLANEOUS
7.1 RIGHTS CUMULATIVE. The rights of the Mortgagee arising under
the provisions and covenants contained in this Mortgage and the Indebtedness
and other documents securing the Indebtedness or any part thereof will be
separate, distinct and cumulative and none of them will be exclusive of the
others. No act of the Mortgagee will be construed as an election to proceed
under any one provision herein or in such other documents to the exclusion of
any other provision, anything herein or otherwise to the contrary
notwithstanding.
7.2 WAIVERS. A waiver in one or more instances of any of the
terms, covenants, conditions or provisions hereof, or of the Note or any
documents securing the Indebtedness or any part thereof, will apply to the
particular instance or instances and at the particular time or times only, and
no such waiver will be deemed a continuing waiver, but all of the terms,
covenants, conditions and other provisions of this Mortgage and of such other
documents will survive and continue to remain in full force and effect. No
waiver will be asserted against the Mortgagee unless in writing signed by the
Mortgagee.
7.3 TITLE. The titles to the Sections hereof are for reference
only and do not limit in any way the content thereof.
7.4 AMENDMENTS. No change, amendment, modification, cancellation
or discharge hereof, or any part hereof, will be valid unless in writing and
signed by the parties hereto or their respective successors and assigns.
7.5 NOTICES. All notices, demands and requests given or required
hereunder to be given by either party hereto to the other party will be in
writing and will be deemed to have been properly given if sent by certified
mail, postage prepaid, return receipt requested, addressed as follows:
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To the Mortgagor at: Xxxx International Corp.
0 Xxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxx 00000-0000
Attn: Xxxxxx X. Xxxx
To the Mortgagee at: CoreStates Bank, N.A.
Credit Support Division
FC 1-3-15-95
0000 Xxxxxx Xxxxxx
Centre Square West, 15th Floor
Philadelphia, PA 19101
Attn: Xxxxxx X. Xxxxx
or to such other address as the Mortgagor or the Mortgagee may from time to
time designate by written notice.
7.6 CONSTRUCTION. Any words herein which are used in one
gender will be read and construed to mean or include the other gender wherever
they would so apply. Any words herein which are used in the singular will be
read and construed to mean and to include the plural wherever they would so
apply, and vice versa.
7.7 WAIVERS BY MORTGAGOR. The Mortgagor hereby expressly
waives, to the extent permitted by law, the equity of redemption, any statutory
right of redemption, dower and homestead and all other rights and exemptions of
every kind in and to the Property.
7.8 INTEREST. If from any circumstances whatsoever the
fulfillment of any provision of this instrument involves transcending the limit
of validity prescribed by any applicable usury statute or any other applicable
law (it being the intention of the Mortgagor and the Mortgagee that the laws of
the Commonwealth of Pennsylvania will govern) with regard to obligations of
like character and amount, then the obligation to be fulfilled will be reduced
to the limit of such validity as provided in such statute or law, so that in no
event will any exaction of interest be possible under this instrument in excess
of the limit of such validity. In no event will the Mortgagor be bound to pay
interest of more than the legal limit for the use, forbearance or detention of
money and the right to demand any such excess is hereby expressly waived by the
Mortgagee.
7.9 RELEASES. The Mortgagor agrees that the Mortgagee,
without notice to or further consent of the Mortgagor, may release
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or discharge any persons who are or may become liable for the payment of the
Indebtedness or release or discharge any other collateral for the payment of
the Indebtedness and any such release or discharge will not alter, modify,
release or limit the validity and enforceability of this Mortgage or the
liability of the Mortgagor under the Indebtedness or this Mortgage.
SECTION 8
FUTURE ADVANCES
8.1 FUTURE ADVANCES BY MORTGAGEE. This Mortgage will secure
unpaid balances of any loan advances made by the Mortgagee after this Mortgage
is delivered for record to the extent that the total unpaid loan indebtedness,
exclusive of interest thereon, does not exceed the maximum amount of unpaid
loan indebtedness which may be outstanding at any time, which is Twenty-Five
Million Dollars ($25,000,000), provided that this Mortgage will also secure
unpaid balances of advances made for the payment of taxes, assessments,
insurance or costs incurred for the protection of the Property. The Mortgagor
further covenants and agrees to repay all such loan advances with interest,
such loan advances to be evidenced by an additional note or notes to be given
to the Mortgagee at the time of such advances, and that the covenants contained
in this Mortgage will apply to such loan advances as well. This Mortgage is
given to secure repayments of advances made pursuant to the Credit Agreement
which advances are obligatory pursuant to the terms and conditions of the
Credit Agreement.
8.2 OTHER LIENS. It is agreed that the lien hereby created
will take precedence over and be a prior lien to any other lien of any
character whether vendor's, materialmen's or mechanic's lien hereafter created
on the Property, and in the event the proceeds of the Indebtedness secured
hereby as set forth herein are used to pay off and satisfy any liens heretofore
existing on the Property, then the Mortgagee is, and will be, subrogated to all
of the rights, liens and remedies of the holders of the indebtedness so paid.
SECTION 9
DEFEASANCE
Provided, nevertheless, that if the Mortgagor keeps, observes and
performs all of the covenants and conditions of this Mortgage on its part to be
kept and performed and pays, or causes to be
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paid, to the Mortgagee the Indebtedness as to both principal and interest, and
all amendments, extensions and renewals thereof, and all of the other
Indebtedness, and repays any loans and advances hereafter made by the Mortgagee
under the terms hereof, and the Mortgagee cancels this Mortgage in writing,
then this Mortgage will be void, otherwise it will remain in effect.
Executed at Philadelphia, Pennsylvania on November 14,
1991 by _________________________, an authorized ______________ of XXXX
International Corp.
Signed and acknowledged
in the presence of: XXXX INTERNATIONAL CORP.
By:
------------------------------ ----------------------------------------
Title:
-------------------------------------
------------------------------
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000
XXXXXXXXXXXX XX XXXXXXXXXXXX )
) SS:
COUNTY OF PHILADELPHIA )
BE IT REMEMBERED, that on November ___, 1991, before me, the
subscriber, a Notary Public in and for said Commonwealth, personally appeared
__ ______________________, duly authorized ______________of XXXX International
Corp., the Mortgagor in the foregoing instrument, who executed the foregoing
Open-End Mortgage, Assignment of Rents and Leases and Security Agreement on
behalf of such Mortgagor, and acknowledged the signing thereof to be his
voluntary act and deed and the voluntary act and deed of such corporation for
the uses and purposes therein mentioned.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and
affixed my notarial seal, on the day and year last aforesaid.
-------------------------------------------
Notary Public
-------------------------------------------
(Print Name)
My County of Residence is:
-----------------
My Commission Expires:
---------------------
JOINDER OF MORTGAGEE
Executed at Philadelphia, Pennsylvania on November __, 1991 by
Xxxxxx X. Xxxxx, an authorized officer of CoreStates Bank, N.A., the Mortgagee
herein, on behalf of the Mortgagee.
Signed and acknowledged CORESTATES BANK, N.A., as
in the presence of: Administrative Agent
By:
------------------------------ ----------------------------------------
Title:
-------------------------------------
------------------------------
-22-
000
XXXXXXXXXXXX XX XXXXXXXXXXXX )
) SS:
COUNTY OF PHILADELPHIA )
BE IT REMEMBERED, that on November __, 1991 before me, the
subscriber, a Notary Public in and for said State, personally appeared Xxxxxx
X. Xxxxx, a duly authorized officer of CoreStates Bank, N.A. the Mortgagee in
the foregoing instrument, who executed the foregoing Open-End Mortgage,
Assignment of Rents and Leases and Security Agreement on behalf of such
association and acknowledged the signing thereof to be such officer's voluntary
act and deed and the voluntary act and deed of such association for the uses
and purposes therein mentioned.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and
affixed my notarial seal, on the day and year last aforesaid.
-------------------------------------------
Notary Public
-------------------------------------------
(Print Name)
My County of Residence is:
-----------------
My Commission Expires:
---------------------
This instrument was prepared by:
Xxxxxx X. Xxxx, Esquire
White and Xxxxxxxx
0000 Xxxxxx Xxxxxx
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000-0000
(000) 000-0000
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AMENDMENT NO. 1 dated November 22, 1991 to OPEN-END MORTGAGE,
ASSIGNMENT OF RENTS AND LEASES AND SECURITY AGREEMENT dated as of November 14,
1991 by XXXX INTERNATIONAL CORP. (the "Mortgagor"), for the benefit of
CORESTATES BANK, N.A., a national banking association which also conducts
business as Philadelphia National Bank and as CoreStates First Pennsylvania
Bank, (the "Mortgagee") and CoreStates Bank, N.A. as Administrative Agent ("the
Administrative Agent").
ARTICLE I
BACKGROUND
The Mortgagor and the Mortgagee acknowledge that:
1. In accordance with the terms of a Credit Agreement and other
Loan Documents (as defined in the Credit Agreement) dated as of November 14,
1991, the Mortgagor executed and delivered an Open-End Mortgage, Assignment of
Rents and Leases and Security Agreement, dated as of November 14, 1991, to the
Administrative Agent.
2. Certain modifications were made to the Credit Agreement
shortly before its execution and the Open-End Mortgage, Assignment of Rents and
Leases and Security Agreement should be amended to address those modifications.
3. The Open-End Mortgage, Assignment of Rents and Leases and
Security Agreement was recorded in book number ____, page number ____ and
covers property described in Exhibit A attached hereto.
4. The Mortgagor and Mortgagee now wish to amend and supplement
the Open-End Mortgage, Assignment of Rents and Leases and Security Agreement it
issued on November 14, 1991 in order to address the above-referenced
modifications made to the Credit Agreement.
ARTICLE II
AMENDMENTS
1. The Open-End Mortgage, Assignment of Rents and Leases and
Security Agreement is amended, effective as of November 22, 1991, to delete
Section 4.4 appearing therein in its entirety and inserting, in its place, the
following:
"4.4 RENT. Provided that no Acceleration, Termination or
Maturity (each as hereinafter defined) has occurred, the Mortgagor will have
the right to collect all rents under any Lease (but not more than 30 days in
advance of their due date), provided that upon the occurrence of an
Acceleration, a Termination or a Maturity (each as hereinafter defined), the
Mortgagee may take such
143
actions with respect to the Leases and the rents, issues and profits (including
the notification to lessees to make rent payments directly to the Mortgagee)
from the Property, as permitted by law or in equity, including, but not limited
to, the remedies set forth in Section 6, below."
2. The Open-End Mortgage, Assignment of Rents and Leases and
Security Agreement is amended, effective as of November 20, 1991, to delete
Section 5.5 appearing therein in its entirety and inserting, in its place, the
following:
"5.5 REMEDIES. Upon any Acceleration, Termination or
Maturity (each as hereinafter defined), the Mortgagee will have the remedies of
a secured party under the Uniform Commercial Code and, at the Mortgagee's
option, may also invoke the remedies provided in this instrument and/or under
applicable law. In exercising any of said remedies, the Mortgagee may proceed
against the items of real property and any items of personal property specified
above as part of the Property separately or together and in any order
whatsoever, without in any way affecting the availability of the Mortgagee's
remedies under the Uniform Commercial Code or of the remedies in this
instrument. Taking possession of any of the Property and the performance of
the obligations of the Mortgagor thereunder will not operate to cure or waive
any default or prohibit the taking of any other action by the Mortgagee under
any instrument or at law or in equity to enforce the payment of the
Indebtedness or to realize upon any other security or guarantee therefor. The
Mortgagee may, so far as the Mortgagor can give authority therefor, enter upon
any premises on which the Property or the books and records relating to the
Property are located and take possession of and remove the same therefrom. The
Mortgagor waives all claims for damages by reason of any seizure, repossession,
retention or sale of the Property under the terms hereof. Any requirement of
reasonable notice, if necessary, will be met if such notice is mailed, postage
prepaid, to the address of the Mortgagor shown in Section 7.5 below at least 10
days before the time of the sale or other disposition of the Property. The net
proceeds arising from the disposition of the Property, after deducting the
Mortgagee's expenses, will be applied to the Indebtedness in the order
determined by the Mortgagee. If any excess remains after the discharge of all
of the Indebtedness and the payment of all such expenses, it will be paid to
the Mortgagor."
3. The Open-End Mortgage, Assignment of Rents and Leases and
Security Agreement is amended, effective as of November 20, 1991, to delete
Section 6.1 appearing therein in its entirety and inserting, in its place, the
following:
"6.1 EVENTS OF DEFAULT; ACCELERATION; TERMINATION; MATURITY.
The entire Indebtedness will become due for the
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144
purposes of this Agreement if (i) any of the Notes or Obligations are not paid
at the Termination Date (as defined in the Credit Agreement) (a "Maturity"), or
(ii) the entire Indebtedness becomes due as provided in either Section 7.2(a)
or Section 7.2(c) of the Credit Agreement (an "Acceleration"). An Event of
Default under this Agreement will have the same meaning given such term in the
Credit Agreement. A "Termination" under this Agreement will occur if the
Administrative Agent declares the Revolving Commitment to be terminated in
accordance with either Section 7.2(a) or Section 7.2(c) of the Credit
Agreement."
4. The Open-End Mortgage, Assignment of Rents and Leases and
Security Agreement is amended, effective as of November 20, 1991, to delete
Section 6.2 appearing therein in its entirety and inserting, in its place, the
following:
"6.2 REMEDIES. Upon an Acceleration, a Termination or a
Maturity, the Mortgagee will have all rights and remedies provided at law or in
equity or under this Mortgage, including the right to accelerate the maturity
of the Indebtedness and the right to foreclose the lien of this Mortgage.
Notwithstanding anything to the contrary contained in this Section 6.2, the
rights and remedies granted to the Mortgagee subsequent to an Event of Default,
which rights and remedies are specified in Section 3.3.2 hereof, do not require
an Acceleration, a Termination or a Maturity before the Mortgagee may exercise
any of such rights or remedies."
5. The Open-End Mortgage, Assignment of Rents and Leases and
Security Agreement is amended, effective as of November 20, 1991, to delete
Section 6.3 appearing therein in its entirety and inserting, in its place, the
following:
"6.3 WAIVERS. The failure of the Mortgagee to exercise
either or both of its options to accelerate the maturity of the indebtedness
secured hereby and to foreclose the lien hereof following an Acceleration or a
Termination, or to exercise any other option granted to the Mortgagee of
partial payments of such indebtedness, will neither constitute a waiver of any
event of default or of the Mortgagee's options hereunder nor establish, extend
or affect any grace period for payments due under the Note, but such options
will remain continuously in force. Once the Mortgagee has accelerated the
maturity of the Indebtedness secured hereby, the Mortgagee, at its option, may,
by written notice, rescind, such acceleration and such rescission will not
affect the Mortgagee's right to accelerate maturity upon or after any future
default."
6. The Open-End Mortgage, Assignment of Rents and Leases and
Security Agreement is amended, effective as of November 20, 1991,
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145
to delete Section 6.6 appearing therein in its entirety and inserting, in its
place, the following:
"6.6 ADDITIONAL REMEDIES. After an Acceleration, a
Termination or a Maturity, the Mortgagee, at its option, in addition to the
other remedies provided herein or in law or equity, may proceed to enter upon,
take possession of, and manage and operate the Property and may proceed to
perform any or all obligations of the Mortgagor under the Leases, and exercise
the rights of the Mortgagor contained therein as fully as the Mortgagor itself
could, without regard to the adequacy of security for the indebtedness hereby
secured and with or without bringing any legal action or causing any receiver
to be appointed by any court; may let or re-let the Property or any part
thereof and enforce, modify, cancel or accept the surrender of any of the
Leases; may bring or defend any suits in connection with the possession of the
Property or any part thereof, in the name of either the Mortgagor or the
Mortgagee; may make such repairs as the Mortgagee may deem appropriate; may pay
out of rents, income or profits any liens, taxes, assessments, insurance
premiums, utility charges or costs of keeping the Property in good condition
and repair; may in the name of either the Mortgagor or the Mortgagee xxx for or
otherwise collect and receive all rents, issues and profits, including those
past due and unpaid; and may do all other things the Mortgagee may deem
necessary or proper to protect its security. Entry upon and taking possession
of the Property and the collection of the rents and the application thereof
will not operate to cure or waive any default under any instrument given by the
Mortgagor to the Mortgagee or prohibit the taking of any other action by the
Mortgagee under any such other instrument, or at law or in equity to enforce
the payment of the indebtedness secured hereby or to realize on any other
security or guarantee."
Signed and acknowledged
in the presence of: XXXX INTERNATIONAL CORP.
By: By:
---------------------------- ------------------------
Print Name: Print Name: Xxxxxx X. Xxxx
-------------------- Title: Vice President
By: Finance/Treasurer
----------------------------
Print Name:
--------------------
CORESTATES BANK, N.A., AS
ADMINISTRATIVE AGENT
By:
----------------------------
Print Name:
--------------------
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146
By: By:
---------------------------- ------------------------
Print Name: Print Name: Xxxxxx X. Xxxxx
-------------------- Title: Vice President
-5-
147
STATE OF OHIO )
) SS:
COUNTY OF ____________________ )
BE IT REMEMBERED, that on November ___, 1991, before me, the
subscriber, a Notary Public in and for said State, personally appeared Xxxxxx
X. Xxxx, duly authorized officer of XXXX International Corp., the Mortgagor in
the foregoing instruments, who executed the foregoing Amendment No. 1 to
Open-End Mortgage, Assignment of Rents and Leases and Security Agreement on
behalf of such Mortgagor, and acknowledged the signing thereof to be his
voluntary act and deed and the voluntary act and deed of such corporation for
the uses and purposes therein mentioned.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my notarial seal, on the day and year last aforesaid.
-------------------------------------
Notary Public
-------------------------------------
Print Name
My county of residence is:
-------------------------
My Commission Expires:
-----------------------------
-6-
000
XXXXXXXXXXXX XX XXXXXXXXXXXX )
) SS:
COUNTY OF PHILADELPHIA )
BE IT REMEMBERED, that on November ___, 1991 before me, the
subscriber, a Notary Public in and for said Commonwealth, personally appeared
Xxxxxx X. Xxxxx, a duly authorized officer of CoreStates Bank, N.A., the
Mortgagee in the foregoing instrument, who executed the foregoing Amendment No.
1 to Open-End Mortgage, Assignment of Rents and Leases and Security Agreement
on behalf of such association and acknowledged the signing thereof to be such
officer's voluntary act and deed and the voluntary act and deed of such
association for the uses and purposes therein mentioned.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my notarial seal, on the day and year last aforesaid.
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Notary Public
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Print Name
My county of residence is:
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My Commission Expires:
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This instrument was prepared by:
Xxxxxx X. Xxxx, Esquire
White and Xxxxxxxx
One Liberty Place, Suite 1800
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
(000) 000-0000
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