Exhibit No. 10.43
LOAN AGREEMENT
BETWEEN
HERBERT ELEKTRONISCHE GERATE GMBH & CO. KG
AND
FIRST UNION NATIONAL BANK, LONDON BRANCH
DATED AS OF JULY 15, 1997
TABLE OF CONTENTS
ARTICLE I DEFINITIONS........................................1
ARTICLE II CREDIT FACILITY ..................................3
Section 2.1 The Credit Facility........................3
Section 2.2 Note.......................................4
Section 2.3 Option to Elect Interest Periods on the
Loans......................................4
Section 2.4 Interest Rates.............................5
Section 2.5 Mandatory Prepayments......................9
Section 2.6 Fees......................................10
Section 2.7 Business Days.............................10
Section 2.8 Guarantees................................10
Section 2.9 Mode of Payment...........................10
Section 2.10Prepayment................................10
Section 2.11Use of Proceeds...........................11
Section 2.12Payment...................................11
ARTICLE III REPRESENTATIONS AND WARRANTIES..................12
Section 3.1 Organization, Powers, Etc.................12
Section 3.2 Authorization of Loan, Etc................13
Section 3.3 Litigation, Administrative and
Regulatory Proceedings....................13
Section 3.4 Payment of Taxes and Other Charges........14
Section 3.5 Federal Reserve Regulations...............14
Section 3.6 Subsidiaries..............................14
Section 3.7 Consents, Etc.............................15
Section 3.8 Properties................................15
Section 3.9 Ownership.................................15
Section 3.10 Intentionally Left Blank..................15
Section 3.11 Agreements...............................15
Section 3.12 Enforceability of the Loan Documents.....16
Section 3.13 Guaranty.................................16
Section 3.14 Relationship of the Borrower and
Subsidiaries.............................16
Section 3.15 Public Utility Holding Company Act.......17
Section 3.16 Survival of Representations and
Warranties...............................17
ARTICLE IV CONDITIONS OF LENDING............................17
Section 4.1 Representations and Warranties............17
Section 4.2 No Default................................17
Section 4.3 Supporting Documents and Other
Conditions................................17
Section 4.4 Loan Fees.................................18
Section 4.5 Closing...................................19
Section 4.6 Approval of Counsel for Bank..............19
Section 4.7 Conditions Precedent to the Advance.......19
ARTICLE V AFFIRMATIVE COVENANTS.............................20
Section 5.1 Notice....................................20
Section 5.2 Accounts and Reports......................21
Section 5.3 Maintain Insurance........................22
Section 5.4 Future Taxes..............................23
Section 5.5 Legal Existence, Properties, Stock
Ownership and Solvency....................23
Section 5.6 Warranties and Conditions.................23
Section 5.7 Further Agreements........................23
Section 5.8 Environmental Matters.....................24
Section 5.9 Guarantors................................24
ARTICLE VI NEGATIVE COVENANTS...............................24
ARTICLE VII EVENTS OF DEFAULT...............................25
Section 7.1 Events of Default........................25
ARTICLE VIII MISCELLANEOUS..................................28
Section 8.1 Cost of Loan..............................28
Section 8.2 Survival of Representations...............28
Section 8.3 Termination of Loan.......................28
Section 8.4 Applicable Law............................28
Section 8.5 Modification..............................29
Section 8.6 No Waiver of Rights by Bank...............29
Section 8.7 Interest..................................29
Section 8.8 Severability..............................30
Section 8.9 Successors and Assigns....................30
Section 8.10 Notices..................................30
Section 8.11 Incorporation of Terms...................32
Section 8.12 Counterparts.............................32
ARTICLE IX INDEMNIFICATION..................................32
Section 9.1 Net Payments..............................32
ARTICLE X WAIVER OF JURY TRIAL AND VENUE....................33
Section 10.1 Arbitration.............................33
Section 10.2 Preservation and Limitation of
Remedies................................34
Section 10.3 Waiver of Plea of Jurisdiction
or Venue...............................35
Schedules
Schedule 2.8 List of Guarantors
Schedule 3.1 Jurisdictions in which Transacting Business
Schedule 3.8 Property Leased from Others
Schedule 3.9 Capital Stock Issued by each Subsidiary
Schedule 6.3 Permitted Encumbrances
Exhibits
Exhibit A Promissory Note
Exhibit B Unconditional Guaranty
Exhibit C Indemnification Agreement
Exhibit D Advance Request
LOAN AGREEMENT
This Loan Agreement, (the "Agreement") is made and entered into at with an
effective date of July 15, 1997, by and between First Union National Bank,
London Branch, located at One Bishopsgate, London EC2N 3AB England (variously,
the "Bank" or the "Lender"), and Herbert Elektronische Gerate GmbH & Co. KG., a
German partnership (the "Borrower"), having a place of business c/o Wessing
Berenberg-Gossler Zimmermann Lange, Frankfurt am Main, Germany.
R E C I T A L S
WHEREAS, the Borrower has requested that the Bank extend certain
acquisition financing to the Borrower and the Bank did so in accordance with the
terms and conditions set forth in that certain Loan Agreement dated as of July
15, 1997; and
WHEREAS, the parties have determined that certain corrections were
required, and desire to enter into this Agreement to reflect those corrections
and their agreement, but with an effective date of July 15, 1997.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
"Advance" shall mean the funding of the entire amount of the Loan.
"Advance Request" shall mean the written request for the Advance as
identified in Section 2.4 hereof and shall among other things (i) specify the
date of the requested Advance, which shall be a Business Day; and (ii) specify
the initial Interest Period.
"Business Day" shall mean a weekday other than a day on which banks
are required or authorized to close in Jacksonville, Florida, and, London,
England and a money market city in the Federal Republic of Germany.
"Closing" shall have the meaning described in Section 4.1 hereof.
"CPI Loan Agreement" shall have the meaning specified in Article VI
hereof.
"Credit Facility" shall mean the loan described in Section 2.1
hereof.
"Credit Facility Maturity" or "Maturity" shall mean July 1, 2004 or
such earlier time, if any, at which the Loan shall become due.
"Credit Facility Note" or "Note" shall mean the note evidencing the
Credit Facility .
"Control" shall have the meaning set forth in Section 7.1 hereof.
"Default" or "Event of Default" shall have the meaning set forth in
Section 7.1 hereof.
"Default Rate" shall have the meaning set forth in Section 7.1
hereof.
"Direct Subsidiary" shall mean a Subsidiary in which the shares are
owned of record by the Borrower.
"DM" shall mean Deutschemarks issued by the Federal Republic of
Germany.
"Dollar" shall mean United States Dollars.
"Equivalent Amount" shall mean, in relation to the Advance, the
amount of Dollars converted from the relevant amount of Optional Currency at the
Bank's spot buying rates (based on the market rates then prevailing) for the
exchange of Dollars and Optional Currency on or about 11:00 a.m. (London,
England time) on the second Business Day immediately preceding the date on which
such calculation is made.
"Guaranty" shall mean the guaranty described in Section 2.8
hereof.
"Indebtedness" shall have the meaning given to such term in Section
6.5 hereof.
"Indirect Subsidiary" shall mean Subsidiary shares of which are
owned of record directly by a Subsidiary, and indirectly by the Borrower.
"Interest Period" shall have the meaning given to such term in
Section 2.4(a)(i) hereof.
"LIBOR-Based Rate" shall have the meaning given to such term in
Section 2.4 hereof.
"LIBOR Loan" shall have the meaning set forth in
Section 2.4(a)(i) hereof.
"Loan" or "Loans" refers to amounts outstanding under the Credit
Facility.
"LIBOR Reserve Percentage" shall mean the percentage which is in
effect from time to time under Regulation D of the Board of Governors of the
Federal Reserve System, as such regulation may be amended from time to time, as
the maximum reserve requirement applicable with respect to Eurocurrency
Liabilities (as that term is defined in Regulation D), whether or not any Lender
has any Eurocurrency Liabilities subject to such reserve requirement at that
time. The LIBOR-Based Rate for any Advance shall be adjusted as of the effective
date of any change in the LIBOR Reserve Percentage.
"Mandatory Prepayment" shall have the meaning set forth in
Section 6.1(e) hereof.
"Net Sale Price" shall have the meaning set forth in Section 6.1(e)
hereof.
"Optional Currency" shall mean Deutschemarks issued by the Federal
Republic of Germany, but excluding:
(a) any currency for which central bank or other governmental
authorization in the country of the currency is required to permit its use by
the Bank for lending under this Agreement (unless the authorization has been
obtained and is full force and effect at the relevant time); and
(b) any currency, the use of which is restricted or prohibited
by any request, directive regulation or guideline of any governmental body,
agency, department or regulatory or other authority (whether or not having the
force of law) in accordance with which any Bank is accustomed to act. As of the
date hereof, the above limitations do not apply to the above specifically
enumerated currency.
"Permitted Encumbrances" shall have the meaning set forth in
Section 6.3 hereof.
"Solvent" shall mean, as to the entity, or entities for which a
determination is being made, that: (i) its or their assets exceed its or their
liabilities (with the calculation of liabilities excluding debt among the
Borrower and its Subsidiaries or between the Subsidiaries); (ii) that it or they
will have sufficient capital to engage in its or their business on an on-going
basis; and (iii) that it or they have the ability to pay its obligations as they
mature.
"Subsidiary" shall have the meaning set forth in Section 3.6
hereof.
ARTICLE II
CREDIT FACILITY
2.1 THE CREDIT FACILITY.
(a) Credit Facility. Subject to the terms and conditions hereof, the
Bank agrees to extend to the Borrower the Credit Facility and make a loan
thereunder in one Advance in the aggregate amount of DM 30,400,000. The
principal amount of borrowings under the Credit Facility shall be repaid as
follows: (i) principal payments of DM 1,520,000.00 shall be due quarterly on
January 1, April 1, July 1 and October 1 of each year beginning July 1, 1999;
and (ii) the remaining outstanding principal balance together with all accrued
interest of borrowings under Credit Facility, if not paid earlier, shall be due
on July 1, 2004 ("Credit Facility Maturity").
(b) Credit Facility. The amount outstanding under the Credit
Facility is sometimes referred to herein as the "Loan" or "Loans". The
outstanding principal amounts of the Loans together with all accrued and unpaid
interest thereon, any amounts for which the Borrower may be directly or
indirectly liable to the Bank, all other amounts owed to the Bank by the
Borrower hereunder or under any instrument executed in connection herewith, plus
all amounts expended by the Bank or for which the Bank may have incurred direct
or contingent liability in connection with enforcement of this Agreement, as a
result of the Borrower's or any Subsidiary's breach of any agreement or for
which the Borrower or any Subsidiary may otherwise be liable under any of the
Loan Documents (as defined herein), including but not limited to all costs of
the Loans as provided in Section 8.1 shall be referred to sometimes hereafter as
the "Obligation."
2.2 NOTE. The obligation of the Borrower to repay the indebtedness
outstanding under the Credit Facility shall be further evidenced by a promissory
note in the form attached hereto as Exhibit A (the "Credit Facility Note"),
which shall be dated as of the date hereof and shall be executed and delivered
by the Borrower to the Bank simultaneously herewith. The Credit Facility Note
shall be deemed to reflect the aggregate unpaid principal amount of all
indebtedness outstanding under the Credit Facility whether or not the face
amount of such note is in excess of the amount actually outstanding from time to
time. The Credit Facility Note is sometimes referred to herein as the "Note".
2.3 OPTION TO ELECT INTEREST PERIODS ON THE LOANS. Subject to the terms
hereof, interest on the Loan shall accrue, at the LIBOR-Based Rate as such term
is defined herein and for an Interest Period as selected by Borrower. In the
event the Borrower has not selected an Interest Period initially or on a Reset
Date, or in the event the amount of the Credit Facility provides the notional
amount for swap agreement between the Bank and the Borrower, interest shall
accrue thereon at the LIBOR-Based Rate with an Interest Period of one month,
with each Interest Period beginning on the first day of a month, except that the
initial Interest Period shall begin on the date hereof and end on the last day
of July, 1997.
2.4 INTEREST RATES.
(a) LIBOR-Based Rate.
(i) Interest Payable. Interest accrues on the Loan at a
LIBOR-Based Rate (a "LIBOR Loan") and shall be payable (A) on the last day of
the applicable Interest Period (as defined below); (B) upon Maturity; (C) upon
acceleration of repayment of the Loan; (D) if the LIBOR Interest Period (as
defined herein) is six months, on the ninetieth (90th) day of that Interest
Period, as well as on the last day of the Interest Period; or (E) if the Loan is
subject to an interest rate swap agreement, on the dates payments are
contemplated under the interest rate swap agreement to which the Loan is
subject.
LIBOR shall mean the rate per annum for deposits of the Optional Currency
in question offered to the Bank in the London Interbank market two (2) Business
Days prior to the first day of such Interest Period for deposits of the Optional
Currency in question for a period of time comparable to the Interest Period for,
and in an amount comparable to the principal amount of, the Advance sought by
the Borrower. This determination of LIBOR is referred to herein as the "LIBOR
RATE."
(ii) Definitions. For purposes hereof, the following terms
shall have the meanings specified.
"LIBOR-Based Rate" shall mean the LIBOR Rate plus: .75%
"London Banking Day" means any Business Day on which
commercial banks, are in fact open for international business, including
dealings in dollar deposits on the London interbank market in London, England.
"Reset Date" means a date on which a Loan is made and each
date on which an Interest Period commences.
"Reference Banks" means four major banks in the London
interbank market, designated by the Bank.
"Interest Period" shall mean a period of one month, two
months, three months or six months, as chosen by Borrower as provided herein;
provided that:
(1) any Interest Period which would otherwise end
on a day which is not a Business Day shall be extended to the next succeeding
London Banking Day unless such London Banking Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding London
Banking Day;
(2) any Interest Period which begins on the last
London Banking Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such LIBOR
Interest Period) shall end on the last London Banking Day of a calendar month;
(3) Borrower may not select an Interest Period for
a Loan if the scheduled last day in the selected Interest Period would extend
beyond the stated maturity for that Loan; and
(4) The Borrower may not have more than three (3)
LIBOR Loans with different Interest Periods under the Credit Facility at any one
time.
(b) Interest Billing Procedures. Interest will be billed in
accordance with the customary practices of the Bank or as otherwise agreed
between Bank and the Borrower; provided, however, the failure of the Bank to
send a bill shall not excuse the duty of the Borrower to ascertain and pay the
correct amount on the date it is due. The Borrower's duty to pay interest
payments hereunder shall be absolute and not contingent.
(c) Interest Determined on 360 Day Year. All interest payable
hereunder shall be at a per annum rate computed by dividing the applicable per
annum interest rate by three hundred sixty (360) and multiplying the result by
the actual number of days elapsed; provided, however, that if as to the Optional
Currency the convention is to compute interest on an Advance thereunder on the
basis of a 365 day year, the Bank will compute such interest on the basis of a
365 day year.
(d) Selection of Applicable Interest Period. Subject to the
provisions hereof, Borrower shall elect the Interest Period applicable thereto
for the Loan at the time of the Advance and before the end of each Interest
Period as provided and subject to the limitations herein.
(e) Notice and Manner of Borrowing. Borrower shall have delivered to
the Bank the Request (as defined in Section 4.7(a) hereof) not later than 11:00
a.m. London, England time, at least 4 Business Days before the Loan is to be
made. The Request shall specify (A) the date of such Loan, and (B) and the
duration of any Interest Period applicable thereto. The Loan shall be for
DM21,600,000.00.
(f) Intentionally Left Blank.
(g) Notices. Borrower has elected to borrow in Optional Currency,
and the Loan repayment shall be in DM, subject to the terms hereof.
(h) Indemnity. Borrower hereby indemnifies Bank against any loss or
expense which may arise or be attributable to Bank's obtaining, liquidating or
employing deposits or other funds acquired to effect, fund or maintain any loan
(i) as a consequence of any failure by Borrower to make any payment when due of
any amount due hereunder, for whatever reason including acceleration, in
connection with any loan bearing interest at the LIBOR-Based Rate, (ii) due to
any failure of Borrower to borrow on a date specified therefor in a notice of
borrowing, (iii) due to any payment, prepayment or conversion of any loan
bearing interest at the LIBOR-Based Rate on a date other than the last day of
the Interest Period therefor, or (iv) due to a conversion pursuant to Section
2.4(i) (ii) hereof. The amount of such loss or expense shall be determined by
the Bank, as the amount actually incurred by the Bank as a result of the
foregoing. Bank's calculations of any such loss or expense shall be furnished to
Borrower and shall be prima facie evidence thereof.
(i) Changed Circumstances.
(i) If, after the date hereof, the introduction of, or any
change in, any applicable law or in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by Bank with any
request or directive (whether or not having the force of law) of such
governmental authority, central bank or comparable agency:
(1) shall subject Bank to any tax, duty or other
charge with respect to this Note or shall change the basis of taxation of
payments to Bank of the principal of or interest on this Note or any other
amounts due in respect thereof (except for changes in the rate of tax on the
overall net income of Bank imposed by any governmental authority); or
(2) shall impose, modify or deem applicable any
reserve (including, without limitation, any reserve imposed by the Federal
Reserve Board), special deposit or similar requirement against assets of Bank,
deposits with or for the account of or credit extended by Bank, or shall impose
on Bank or the foreign exchange and interbank markets any other condition
affecting the Note; and the result of any of the foregoing is to increase the
cost to Bank of maintaining any LIBOR-Based Rate or; to reduce the amount of any
sum received or receivable by Bank under the Note in respect of interest at the
LIBOR-Based Rate; then the Bank shall promptly notify Borrower of such fact and
demand compensation therefor and, within fifteen (15) days after such notice by
Bank, Borrower agrees to pay to Bank such additional amount or amounts as will
compensate Bank for such increased cost or reduction. Bank will promptly notify
Borrower of any event of which it has knowledge which will entitle Bank to
compensation pursuant to this Subparagraph 2.4 (i); provided, however, that Bank
shall incur no liability whatsoever to Borrower in the event it fails to do so.
The amount of such compensation shall be determined, by the Bank, as the amount
actually incurred by the Bank as a result of the foregoing. Bank's calculations
of any such loss or expense shall be furnished to Borrower and shall be prima
facie evidence thereof.
(ii) If, at any time, Bank shall determine in good faith that,
by reason of circumstances affecting the foreign exchange and interbank markets
generally, deposits in Optional Currency in the applicable amounts are not being
offered to Bank, then Bank shall promptly give notice thereof to Borrower.
Thereafter, until Bank notifies Borrower that such circumstances no longer
exist, the obligation of Bank to make the LIBOR-Based Rate available to Borrower
shall be suspended, and Borrower shall subject to the following sentence hereof,
repay in full the then outstanding principal amount of the Loan together with
accrued interest thereon together with amounts owed under Section 2.4(h).
Notwithstanding the foregoing, in the event that the Bank determines that
Optional Currency is not available to it, the Bank will make a good faith effort
to convert the outstanding Advance to an Advance payable in Dollars, and the
Borrower shall be responsible for paying all costs or expenses arising from such
conversion, including those set forth in Section 2.4(h) hereof. In the event the
Bank is able to convert the Advance to an Advance payable in Dollars, the
Borrower will sign such amendments to the Loan Documents as the Bank may
reasonably request to make the Loan Documents consistent with the Bank's
standard terms for LIBOR-Based Loans payable in Dollars.
(iii) If, after the date hereof, the introduction of, or any
change in, any applicable law or in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by Bank with any
request or directive (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency, shall make it
unlawful or impossible for Bank to honor its obligations hereunder to make or
maintain any LIBOR-Based Rate or make an Optional Currency Advance, Bank shall
promptly give notice thereof to Borrower. Thereafter, until Bank notifies
Borrower that such circumstances no longer exists, (A) the obligations of Bank
to make available the LIBOR-Based Rate or Optional Currency Advances and the
right of Borrower to convert any rate to a LIBOR-Based Rate or receive Optional
Currency Advances shall be suspended, and (B) if Bank may not lawfully continue
to maintain a LIBOR-Based Rate or extend Optional Currency Advances, as the case
may be, to the end of the then current Interest Period applicable thereto, the
Loan shall, subject to the following sentence hereof, be immediately due in the
event of an Optional Currency Advance. Notwithstanding the foregoing, in the
event that the Bank determines that Optional Currency is not available to it,
the Bank will make a good faith effort to convert any outstanding Optional
Currency Advance to a Dollar Advance, and the Borrower shall be responsible for
paying all costs or expenses arising from such conversion, including those set
forth in Section 2.4(i) hereof. In the event the Bank is able to convert the
Advance to an Advance payable in Dollars, the Borrower will sign such amendments
to the Loan Documents as the Bank may reasonably request to make the Loan
Documents consistent with the Bank's standard terms for LIBOR-Based Loans
payable in Dollars.
(iv) The provisions of Sections 2.4 (h) and (i) shall
similarly inure to the benefit to any party to whom the Lender sells an
interest, or participates on interest herein, as authorized pursuant to Section
8.9 hereof.
(j) [Intentionally left blank]
(k) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section shall survive the payment in full of principal and interest
hereunder and under the Note.
2.5 MANDATORY PREPAYMENTS. In addition to the other repayment obligations
set forth herein, and subject to any prepayment penalties described in Section
2.4(h) hereof, the Borrower shall also pay to the Bank any amounts required to
be paid pursuant to Section 6.1 of that Loan Agreement of even date herewith
between the Bank and Computer Products, Inc. The Borrower shall simultaneously
reimburse the Lender for any loss or out-of-pocket expenses incurred by Lender
on account of such prepayment in the currency incurred, as set forth in Section
2.4(h) hereof.
2.6 FEES.
(a) Commitment Fee. In consideration for the commitment of the Bank
to make the Credit Facility available to the Borrower, the Borrower agrees to
pay to the Bank a commitment fee (the "Commitment Fee") of Forty Thousand
Dollars ($40,000.00).
(b) Fees Deemed Earned. The Commitment Fee paid is deemed earned at
Closing.
2.7 BUSINESS DAYS. If any scheduled date of repayment of any portion of a
Loan shall be due on a day which is not a Business Day, subject to the
provisions of Section 2.4 hereof, such payment shall be made on the next
succeeding Business Day, and such extension of time shall be included in
computing interest in connection with such payment.
2.8 GUARANTEES. As a condition to the Bank making of the Loans to the
Borrower, the Borrower shall cause each of the entities described on Schedule
2.8 hereof (sometimes collectively referred as the "Guarantors") to execute and
deliver their joint and several unconditional guaranty of repayment of the
Loans, which guaranty shall be in the form attached hereto as Exhibit B (the
"Guaranty").
2.9 MODE OF PAYMENT. All funds payable to the Bank hereunder shall be paid
to the Bank at its office set out in Section 8.10 hereof, or at such place as
otherwise directed by the Bank, in actually and finally collected funds in the
currency required under Section 2.12 hereafter on or before 2:00 P.M. (local
time) on the date when due. Payments shall not be deemed made or received until
they are received by the Bank as actually and finally collected funds in the
currency required under Section 2.12 hereafter. Any payment received after 2:00
P.M. (local time) on any Business Day shall, for the purposes of determining
time of payment under this Agreement as between the Borrower and the Bank only,
be treated as received on the next following business day; provided, however,
that this treatment shall not postpone the time of receipt for any other purpose
or computation, such as preference periods applicable to bankruptcy laws, or
dates relative to priority between creditors, or the like.
2.10 PREPAYMENT. Subject to the provisions of Section 2.4(h) hereof, upon
giving the Bank thirty (30) days prior written notice, the Borrower shall have
the right to prepay any amounts owed under the Credit Facility in whole or in
part, in integral multiples of not less than Equivalent Amount of $100,000.00.
Prepayments applied to the Credit Facility shall be applied in inverse order of
the scheduled principal payments thereunder. Each notice of prepayment shall
specify the prepayment date and the principal amount to be prepaid. All
prepayments of any Loan hereunder shall include accrued interest upon the
principal amount being prepaid to the date of the payment, and any amounts owed
pursuant to Section 2.4(h) hereof. Amounts prepaid under the Credit Facility may
not be reborrowed. Prepayment shall be in the currency specified in Section 2.12
hereof.
2.11 USE OF PROCEEDS. The proceeds of the Credit Facility are to be used
to provide financing for the acquisition of certain computer manufacturing and
ancillary facilities in Europe, as disclosed to the Bank.
2.12 PAYMENT. All payments (including prepayments) shall be made in
Optional Currency.
(a) The specification herein that payment be made in Optional
Currency, is of the essence hereof. If payment is not made in the currency due
under this Agreement (the "Contractual Currency") or if any court or tribunal
shall render a judgment or order for the payment of amounts due hereunder or
under the Credit Facility Note and such judgment is expressed in a currency
other than the Contractual Currency, the Borrower shall indemnify and hold the
Bank harmless against any deficiency incurred by the Bank in terms of the amount
received by the Bank to the extent the rate of exchange at which the Contractual
Currency is convertible into the currency actually received or the currency in
which the judgment is expressed (the "Received Currency") is not the reciprocal
of the rate of exchange at which the Bank would be able to purchase the
Contractual Currency with the Received Currency, in each case on the Business
Day following receipt of the Received Currency in accordance with normal banking
procedures. If the court or tribunal has fixed the date on which the rate of
exchange is determined for the conversion of the judgment currency into the
Contractual Currency (the "Conversion Date") and if there is a change in the
rate of exchange prevailing between the Conversion Date and the date of receipt
by the Bank, then the Borrower will, notwithstanding such judgment or order, pay
such additional amount as may be necessary to ensure that the amount paid in the
Received Currency when converted at the rate of exchange prevailing on the date
of receipt will produce the amount then due to the Bank from the Borrower
hereunder in the Contractual Currency.
(b) If Borrower shall wind up, liquidate, dissolve or become a
debtor in bankruptcy while there remains outstanding (i) any amounts owing to
the Bank hereunder or under the Note, (ii) any damages owing to the Bank in
respect of a breach of any of the terms hereof or (iii) any judgment or order
rendered in respect of such amounts or damages, the Borrower shall indemnify and
hold the Bank harmless against any deficiency in terms of the Contractual
Currency in the amounts received by the Bank arising or resulting from any
variation as between (i) the rate of exchange at which the Contractual Currency
is converted into another currency (the "Liquidation Currency") for purposes of
such winding-up, liquidation, dissolution or bankruptcy with regard to the
amount in the Contractual Currency due or contingently due hereunder or under
the Note or under any judgment or order to which the relevant obligations
hereunder or under the Notes shall have been merged and (ii) the rate of
exchange at which the Bank could, in accordance with normal banking procedures,
be able to purchase the Contractual Currency with the Liquidation Currency at
the earlier of (A) the date of payment of such amounts or damages and (B) the
final date or dates for the filing of proofs of a claim in a winding-up,
liquidation, dissolution or bankruptcy. As used in the preceding sentence, the
"final date or dates for the filing of proofs of a claim in a winding-up,
liquidation, dissolution or bankruptcy" shall be the date fixed by the
liquidator under the applicable law as being the last practicable date as of
which the liabilities of the Borrower may be ascertained for such winding-up,
liquidation, dissolution or bankruptcy before payment by the liquidator or other
appropriate person in respect thereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Agreement and extend the financing
contemplated hereby, the Borrower represents and warrants to the Bank as
follows:
3.1 ORGANIZATION, POWERS, ETC. The Borrower (a) is a partnership duly
organized, validly existing and its status is active or current under the laws
of each jurisdiction in which it is transacting business; (b) has all requisite
power and authority and all requisite licenses, permits and authorizations to
own, operate, lease, assign, mortgage, sell or otherwise hypothecate or dispose
of its assets and to carry on its business as now conducted and as proposed to
be conducted pursuant to this Agreement; (c) is duly qualified or licensed to
transact business and is in good standing in the every other jurisdiction in
which failure to so qualify or be licensed would have a material adverse effect
on its business or financial condition or its ability to perform its agreements
hereunder, which jurisdictions are set forth on Schedule 3.1 hereof, and (d) has
the full power and authority to enter into, execute and perform those Loan
Documents (as defined herein) to which it is a party. This Agreement, the Note,
the Guaranty, and any and all other documents, if any, required or contemplated
to be executed and/or performed by the Borrower or each Guarantor hereunder are
referred to collectively herein as the "Loan Documents".
3.2 AUTHORIZATION OF LOAN, ETC. The execution, delivery, and performance
of the Loan Documents to which it is a party or a signatory:
(a) have been duly authorized by all requisite partnership
action of the Borrower;
(b) do not require any consent or approval of the partners of the
Borrower which has not been obtained;
(c) will not, in any respect material to the financial condition of
the Borrower, violate or contravene;
(i) any provisions of law applicable to the Borrower;
(ii) any order, rule or regulation of any regulatory
authority, court or other agency of government applicable to the Borrower;
(iii) any provision of the organizational agreement or
instrument of the Borrower; or
(iv) any agreement or obligation to which the Borrower is a
party or by which the Borrower or any of its or their property is or may be
bound, or be in conflict with, result in a breach of or constitute (with or
without notice or lapse of time, or both) a default under, any such agreement or
other instrument; and
(d) shall not result in the creation of any lien of any nature
whatsoever upon any property or assets of the Borrower.
3.3 LITIGATION, ADMINISTRATIVE AND REGULATORY PROCEEDINGS. There are no
actions, suits, investigations or proceedings (whether or not purportedly on
behalf of the Borrower, or any of its respective partners or management
officials in their capacities as such), pending or, to the knowledge of the
Borrower of the above partners or management officials, threatened against or
affecting the Borrower or the above partners or management officials in their
capacities as such, at law or in equity, or before or by any federal, state,
municipal or other governmental department, commission, board, bureau,
regulatory agency or instrumentality, domestic or foreign, which are reasonably
expected to be determined adversely to the Borrower and which would result in
any material adverse change in the business or financial condition of the
Borrower taken as a whole nor are there any factual situations which might
reasonably be expected to result in any such action, suit, investigation or
proceeding which are known to the Borrower or the above officers, directors or
management officials, but unasserted at the present time which would result in a
material adverse change in the business or financial condition of the Borrower
taken as a whole. The Borrower is not in default of any law, rule, regulation,
ordinance or order of any court or federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign which would result in a material adverse change in the
business or financial condition of the Borrower.
3.4 PAYMENT OF TAXES AND OTHER CHARGES. The Borrower has duly filed, paid
and discharged, all federal, state and local tax returns and taxes, and other
governmental assessments and other charges, liens or claims levied or imposed,
which if unpaid would become a lien or charge for a material amount upon the
property, assets, earnings or business of the Borrower, or have an adverse
effect on its financial condition or its ability to perform its agreements
hereunder, as the case may be. The Borrower knows of no material tax or other
assessment against it which has not been properly reserved against as reflected
in the financial statements provided to the Bank in accordance with Section 5.2
hereof.
3.5 FEDERAL RESERVE REGULATIONS.
(a) The Borrower is not engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation G of the
Federal Reserve Board ("FRB"));
(b) No part of the proceeds of the Loans shall be used to purchase
or carry any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock; and
(c) No part of the proceeds of the Loans shall be used for any
purpose that violates, or which is inconsistent with, the provisions of
Regulations G, T, U or X of the FRB.
3.6 SUBSIDIARIES. A complete list of the subsidiaries of the Borrower as
of the date hereof, as well as the place of incorporation and a list of all
jurisdictions in which each is transacting business is set forth in Schedule 3.1
hereof. This Schedule and Schedule 3.9 hereof shall be updated by Borrower
promptly at the time any new Subsidiary is added in accordance with Section 6.8
hereof. "Subsidiary" shall mean any corporation, partnership, or any other
entity either properly classified as a subsidiary of the Borrower for purposes
of generally accepted accounting principles ("GAAP") or as to which the Borrower
or any of its Subsidiaries exercises or has the right, whether by contract or
otherwise, to exercise control of its business. Each Subsidiary is a corporation
duly incorporated and organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and principal place of business,
has all corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted, and
has full power and authority to enter into, execute and perform those Loan
Documents to which it is a party.
3.7 CONSENTS, ETC. No consent, approval, authorization of, or
registration, declaration or filing with any governmental authority (federal,
state or local, domestic or foreign) is required in connection with the
execution or delivery by the Borrower or any Subsidiary of any Loan Document to
which it is a party, or the performance of or compliance with the terms,
provisions and conditions hereof or thereof.
3.8 PROPERTIES. The Borrower has good and marketable legal and equitable
title to all of its properties and assets as of the date hereof necessary for
the conduct of its business, except property leased from others, with each lease
in which the annual rent is in excess of Fifty Thousand Dollars ($50,000) being
described in Schedule 3.8. As of the date of this Agreement, all properties and
assets of the Borrower shall be free and clear of all interests, claims,
reversionary rights or interests, mortgages, pledges, liens, restrictions,
forfeitures, charges, attachments, levies, encumbrances or other matters
adversely affecting the Borrower's title hereof except as permitted under the
Loan Agreement of even date herewith between the Bank and Computer Products,
Inc.
3.9 OWNERSHIP. The respective classes of capital stock of each Subsidiary,
and the number of issued and outstanding shares of each are as set forth in
Schedule 3.9 hereof.
3.10 [Intentionally Left Blank].
3.11 AGREEMENTS. The Borrower is not a party to any agreement or
instrument or subject to any charter or other corporate restriction materially
adversely affecting the business, properties or assets, operations or condition
(financial or other) of the Borrower, or its ability to perform its agreement
under the Loan Documents to which it is a party. The Borrower is not in default
in the performance, service or fulfillment of any of the obligations, covenants
or conditions contained in any agreement or instrument to which it is a party,
which may result in a material adverse change in the condition, financial or
otherwise of the Borrower or its ability to perform its agreements hereunder.
3.12 ENFORCEABILITY OF THE LOAN DOCUMENTS. The Loan Documents and the
performance of the Borrower's obligations under those Loan Documents to which it
is a party or a signatory, or under any other instrument executed or to be
executed by or on its behalf hereunder constitute, or upon execution and
delivery thereof shall constitute the legal, valid and binding obligations of
the Borrower enforceable against the Borrower as the case may be, in accordance
with their respective terms.
This representation is subject to the qualification that enforcement of
the foregoing described loan documents is subject to:
a. equitable remedies;
b. bankruptcy, insolvency, reorganization, moratorium and other laws
applicable to creditors' rights generally;
c. any restrictions or constraints peculiarly applicable to
Bank; and
d. as to certain remedial, waiver and other provisions of the Loan
Documents, other provisions of general Florida law.
3.13 GUARANTY. All representations and warranties of each of the
Guarantors in the Guaranty are true and correct in all material respects.
3.14 RELATIONSHIP OF THE BORROWER AND SUBSIDIARIES. The Borrower and its
affiliates including the Guarantors are engaged as a globally integrated group
of designers and producers of electronic products and subsystems, providing the
required services, credit and other facilities for those integrated operations.
The Loan made under the Credit Facility is for the purpose of financing
acquisitions that will enhance the integrated operations of the Borrower and the
Subsidiaries, and the Borrower and its affiliates, including the Guarantors,
expect to derive benefit, directly or indirectly, from the Loans, both
individually and as a member of the integrated group, because the financial
success of the operations of the Borrower and its affiliates, including the
Guarantors, is dependent upon the continued successful performance of the
integrated group as a whole.
3.15 PUBLIC UTILITY HOLDING COMPANY ACT. The Borrower is not a "holding
company" or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
3.16 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The foregoing
representations and warranties shall be true and correct as of the date hereof
and at all times during the term of the Loan.
ARTICLE IV
CONDITIONS OF LENDING
The obligation of the Bank to extend the financing contemplated hereby is
subject to the terms of this Agreement and to the following conditions
precedent:
4.1 REPRESENTATIONS AND WARRANTIES. On the date of execution of this
Agreement, such date being sometimes referred to hereafter as the "Closing," the
representations and warranties of the Borrower and the Subsidiaries contained
herein or in any Loan Document shall be true and correct in all material
respects.
4.2 NO DEFAULT. On the date hereof, after giving effect to such borrowing
hereunder, the Borrower shall have observed and performed all the terms,
conditions and agreements set forth herein, or on its part to be observed or
performed in all material respects, and no Event of Default specified in Article
VII hereof, nor any other event which, upon notice or lapse of time or both,
would constitute an Event of Default shall have occurred.
4.3 SUPPORTING DOCUMENTS AND OTHER CONDITIONS. On the date hereof, and in
any event prior to the Advance hereunder, the Borrower shall have delivered to
the Bank the following:
(a) a certificate of the Secretary of State or other applicable
governmental authority of each state or country in which Borrower or a Guarantor
is transacting business, certifying:
(i) that attached thereto is a true and complete copy of the
charter documents of the Borrower and each Guarantor as of a date within ten
(10) days of the date hereof; and
(ii) that the Borrower and each Guarantor is in good standing,
or its status is active where the applicable jurisdiction is Florida, in that
State or other applicable jurisdiction;
(b) a certificate of a duly authorized representative of the
Borrower, dated the date of such borrowing, certifying:
(i) [intentionally left blank];
(ii) that the Borrower is in good standing in each
jurisdiction in which it is transacting business;
(iii) that attached thereto is a true and complete copy of
resolutions of the general partner of the Borrower directing the execution and
delivery by the Borrower of the Loan Documents to which it is a party,
indicating the representative of the Borrower, authorized to execute such
instruments and act on its behalf, which resolutions are in full force and
effect without modification on the date of such certification;
(iv) the incumbency and signatures of the representatives of
the Borrower executing the Loan Documents to which it is a party; and
(v) that the Articles of Association or other charter
documents of the Borrower described in Section 4.3(a)(i) or hereof have not been
amended and are true and complete as of the date hereof;
(c) a certificate of a duly authorized manager of the Borrower and
each Guarantor to the effect that after giving effect to the transaction
contemplated herein (i) the Obligation of the Borrower will not be greater than
the value of the consolidated property of the Borrower at a fair valuation; (ii)
the Borrower will have sufficient capital to engage in its business on an
ongoing basis; and (iii) the Borrower will have the ability to pay its
Obligations as they mature;
(d) the Credit Facility Note duly executed by the Borrower;
(e) Indemnification Agreement, substantially in the form attached
hereto as Exhibit C;
(f) the Guaranty duly executed by the Guarantors; which may be in
the form of multiple documents for the different Guarantors;
(g) the opinions of counsel to the Borrower, Computer Products,
Inc., Stevens-Arnold, Inc., JETA Power Systems, Inc., RT Holding Corp. and
Heurikon Corporation from attorney(s) licensed to practice law in the states of
such entities organizations in form attached reasonably acceptable to the Bank;
(h) the ISDA Master Agreement dated as of July 14, 1997 between
First Union National Bank and the Borrower (the "ISDA Master Agreement") and any
other documents required by the terms thereof to be delivered in connection
therewith;
(i) searches from each jurisdiction in which it is transacting
business demonstrating that there are no liens upon the Borrower's or any
Subsidiary's property except as permitted hereunder; and
(j) all other additional opinions, documents, certificates and other
assurances that the Bank or its counsel may reasonably require.
4.4 LOAN FEES. The Borrower shall pay at the time of execution hereof the
Commitment Fee and all costs of the Bank incurred through such dates as provided
in Section 8.1 hereof.
4.5 CLOSING. This Agreement, the Note, and the Guaranty shall by executed
by the Borrower or Guarantor, as the case may be, at the place set forth on the
signature page hereof and the execution of this Agreement by the Bank shall
occur in Charlotte, North Carolina, and the delivery of the originals of such
documents to the Bank shall occur at the office of the Bank's agent in
Charlotte, North Carolina, and the delivery of the balance of the documents
described in Article IV hereof shall be at a time agreed upon by the parties
hereto, at the offices of Holland & Knight LLP, Suite 3000, 701 Brickell Avenue,
Miami, Florida.
4.6 APPROVAL OF COUNSEL FOR BANK. All legal matters incident to this
Agreement shall be reasonably satisfactory to Messrs. Holland & Knight LLP,
counsel for the Bank.
4.7 CONDITIONS PRECEDENT TO THE ADVANCE. The following conditions, in
addition to any other requirements set forth in this Agreement, shall have been
met or performed on or prior to the date the Advance hereunder shall be made by
the Bank:
a. Request to Make the Advance. The Borrower shall have delivered to
the Bank a request to make an Advance which request shall be substantially in
the form attached hereto as Exhibit D (the "Request).
b. No Default. On the date of the Request the Borrower shall be in
compliance in all material respects with all the terms and provisions set forth
in the Loan Documents on its part to be observed or performed, and no Event of
Default shall have occurred or be continuing at such time, or will occur upon
the making of the Advance.
c. Correctness of Representations. All representations and
warranties made by the Borrower and any Guarantor herein or in the other Loan
Documents or otherwise in writing in connection herewith shall be true and
correct with the same effect as though the representations and warranties had
been made on an as of the proposed date of the Advance, except to the extent
such representation and warranty relates to an earlier date.
d. No Adverse Change. There shall have been no material adverse
change in the condition, financial or otherwise, condition as it existed on the
date of the most recent financial statements of such person delivered prior to
the date hereof.
e. Further Assurances. The Borrower shall have delivered such
further documentation or assurances as the Bank may reasonably require.
f. Advance Limitations. The Request for an Advance shall be
irrevocable, made in the time frame as specified in Section 2.4 hereof, and
shall be for the amount of the Loan specified in Section 2.1 hereof.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower consents and agrees that, from the effective date and so long
as this Agreement shall remain in force and effect, and until payment in full of
the principal and interest due under the Note and until full satisfaction of the
Obligation described hereunder, it shall:
5.1 NOTICE. Give prompt written notice to the Bank of:
a. the institution, or threat of institution, or the occurrence of
facts known to it which might reasonably be expected to result in, any action,
suit, investigation or proceeding instituted by or against the Borrower or any
Subsidiary or the partners or management officials of the Borrower or any
Subsidiary in their capacity as such, at law or in equity, in any federal or
state court or before any federal, state, municipal or other governmental
department, commission, board, bureau agency, regulatory authority or
instrumentality, domestic or foreign, which seeks damages or other relief in
excess of One Million Dollars ($1,000.000.00) or the Equivalent Amount thereof
if such judgment is rendered in other than Dollars, or which if determined
adversely to the Borrower or any Subsidiary would have a material adverse effect
upon the business or financial condition of the Borrower; and
b. any other action, event or condition of any nature which, in the
reasonable opinion of the Borrower, with or without notice, or lapse of time, or
both, constitutes or would constitute an Event of Default under this Agreement.
Each notice required to be delivered pursuant to this Section 5.1
shall include a reasonably detailed description of the matter, the amount in
controversy (or other non-monetary relief sought or both), the title of the
applicable forum, style of the proceeding, case number, docket number and the
like, and the attorney or law firm (together with address) providing
representation on behalf of the Borrower, or officers, directors or management
officials of the Borrower, in their capacities as such, with respect to each
item of litigation listed.
5.2 ACCOUNTS AND REPORTS. Maintain a standard system of accounting in
accordance with generally accepted accounting principles consistently applied,
and furnish or cause to be furnished to the Bank copies of each of the
following:
a. Within ninety (90) days after the end of its fiscal year, (i) an
annual consolidated financial statement of the Borrower and its Subsidiaries,
and related statements of income, shareholders' equity, and changes in position
for such fiscal year, all with accompanying notes, in reasonable detail and
stating in comparative form the figures as of the end of and for the previous
fiscal year, which may be prepared by the Borrower (the foregoing shall have
been certified by the Chief Financial Officer of the Borrower as presenting
fairly the financial position of the Borrower and its Subsidiaries, and the
results of operations and changes in financial position for the fiscal year,
without qualification, in conformity with GAAP consistently applied); (ii) a
compliance certificate executed by the Chief Financial Officer of the Borrower
certifying that as of the date thereof the Borrower is in compliance in all
material respects with the terms hereof, including Section 5.5(b) hereof.
b. Within forty-five (45) days of the end of each fiscal quarter, a
compliance certificate executed by the Chief Financial Officer of the Borrower,
certifying that as of the date thereof, the Borrower is in compliance in all
material respects with the terms hereof, including Section 5.5(b) hereof.
c. Promptly upon becoming available, copies of all financial
statements, reports and notices sent by Borrower to its stockholders or any
governmental authorities, except material filed with a governmental authority in
the ordinary course of business which does not relate to or disclose any
material adverse effect to the affairs of the Borrower.
d. Promptly, from time to time, such other information regarding the
operation, business affairs and financial condition of the Borrower and the
Subsidiaries as the Bank may reasonably request.
5.3 MAINTAIN INSURANCE.
a. Keep the insurable properties of the Borrower and its
Subsidiaries adequately insured with sound and reputable insurers to the extent
and against such risks (including fire and other risks commonly insured against
by extended coverage) as is customary with companies in the same or similar
businesses.
b. Maintain in full force and effect public liability insurance
against claims for personal injury or death or property damage occurring upon,
in, or about or in connection with the use of any properties owned, occupied or
controlled by the Borrower or any of its Subsidiaries.
5.4 FUTURE TAXES. Pay all taxes and other governmental assessments as the
same shall become due, excepting only taxes and governmental assessments which
the Borrower or any Guarantor is contesting in good faith and for which the
Borrower or any Guarantor has set aside adequate reserves, including reserves
for interest with respect thereto in the manner provided hereafter.
5.5 LEGAL EXISTENCE, PROPERTIES, STOCK OWNERSHIP AND SOLVENCY.
a. Except as otherwise permitted by Section 6.2 of the Loan
Agreement of even date herewith between the Bank and Computer Products, Inc., do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect the Borrower's legal existence, and its rights, licenses,
permits and franchises and charters, and conduct and operate its and their
business in substantially the manner in which the business is presently
conducted and operated (subject to changes in the ordinary course of business);
and at all times maintain, preserve and protect all material franchises and
trade names; and comply in all material respects with all laws, statutes,
regulations and ordinances of any governmental entity or agency thereof,
applicable to the Borrower; and
b. the Borrower will remain Solvent at all times.
5.6 WARRANTIES AND CONDITIONS. Do all acts or refrain from action, as
necessary to cause all of the representations and warranties set forth in
Article III hereof to continue to be true in all material respects at all times
that this Agreement is in effect.
5.7 FURTHER AGREEMENTS. Comply with any and all procedures reasonably
established by the Bank for processing, handling and accounting for the Loans
and all payments involved, and the documents or instruments pertaining thereto.
The Borrower shall execute and deliver to the Bank all such additional
agreements, documents, instruments and affidavits necessary or as may reasonably
be required by the Bank to evidence and accurately account for and ratify all
amounts advanced or payable pursuant to this Agreement or any of the
Obligations. The Borrower shall pay all taxes (other than income or similar
taxes of the Lender), recording fees and other reasonable costs incurred by the
Bank in connection with such subsequent loans. At the option of the Bank, the
Note may be modified or renewed, an additional note may be executed, or
overdrafts may be allowed on any account of the Borrower with the Bank, or
advances made against uncollected funds under drafts presented by the Borrower
to the Bank for collection.
5.8 ENVIRONMENTAL MATTERS. Represents to the Bank that the places of
business operated by the Borrower have not in the past been used by Borrower or,
to its knowledge, any other party, are not presently being used, and will not in
the future be used for the handling, storage, transportation, or disposal of
hazardous or toxic materials in any manner not in compliance with applicable
law. The Borrower agrees to indemnify, defend, and hold the Bank harmless from
and against any loss to the Bank (including, without limitation, reasonable
attorneys' fees) incurred by the Bank as a result of such past, present or
future use, handling, storage, transportation, or disposal of hazardous or toxic
materials.
5.9 GUARANTORS. Promptly forward to the Guarantors any notices or
documents or information which it is required hereunder or under the Loan
Documents to forward to the Bank.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees that, during the term of this Agreement,
it will not take any action in violation of Articles VI or VIA of the Loan
Agreement effective July 15, 1997 and executed of even date between Computer
Products, Inc. and the Bank (the "CPI Loan Agreement"). This covenant shall
remain in place even if the CPI Loan Agreement shall be satisfied while the
Obligations remain outstanding. The Borrower acknowledges that it is a
Significant Subsidiary for purposes of the CPI Loan Agreement.
ARTICLE VII
EVENTS OF DEFAULT
7.1 EVENTS OF DEFAULT. Any of the below listed events happening to the
Borrower or any Subsidiary are sometimes referred to herein alternatively as
"Events of Default" or "Default":
a. Failure to pay, perform, or comply with any material obligation,
promise, covenant, agreement or provision under any of the Loan Documents, or
upon the occurrence of any other event of default and the continuation beyond
the expiration of any cure period relating thereto under any other agreement
between the Borrower, Computer Products, Inc., or any Subsidiary and the Bank;
b. Any warranty, representation or statement made or furnished to
Lender by or on behalf of Borrower or any Subsidiary shall prove to have been
false or misleading in any material respect when made or furnished;
c. Dissolution or liquidation of the Borrower;
d. The Borrower shall fail to pay any additional monetary obligation
in excess of One Hundred Thousand Dollars ($100,000.00) when due, however
arising and to whomever owed, except in immaterial amounts through inadvertent
clerical error;
e. The Borrower should make a general assignment for the benefit of
creditors, or any proceeding of any other similar nature be instituted by or
against the Borrower or any Significant Subsidiary or any proceeding be
instituted against the Borrower or any Significant Subsidiary alleging that such
entity is insolvent, or a receiver be appointed for the Borrower or any
Significant Subsidiary or for any property of the Borrower or any Significant
Subsidiary, and such proceeding shall not be dismissed within ninety (90) days
after the date such action is commenced;
f. Any verdict or judgment in excess of Two Hundred Fifty Thousand
and No/Dollars ($250,000.00) or an Equivalent Amount if the judgment is not in
Dollars individually or in the aggregate in any twelve (12) month period during
the term hereof be obtained or entered against the Borrower or any property of
such entity, and remain unsatisfied or not stayed by court order upon posting a
bond, after thirty (30) days from the rendition of such judgment unless fully
covered by insurance less permitted deductible;
g. A decree or order shall be entered by a court for relief in
respect of the Borrower under Title 11 of the United States Code, as now or
hereafter constituted, or any other applicable foreign, federal or state
bankruptcy, insolvency or other similar law, or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar official) of
the Borrower or of any substantial part of either the Borrower's property, or
ordering the winding-up or liquidation of its affairs and the continuance of any
such decree or order unstayed and in effect for a period of ninety (90)
consecutive days;
h. Borrower shall file a petition or answer or consent seeking
relief under Title 11 of the United States Code, as now or hereafter
constituted, or any other applicable foreign, federal or state bankruptcy,
insolvency or other similar law, or consent to the institution of proceedings
thereunder or to the filing of any such petition or to the appointment or taking
possession of a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of the Borrower or any substantial part of the
Borrower's property, or Borrower shall fail generally to pay their respective
debts as such debts become due, or take action in furtherance of any such
action;
i. The Borrower is in default under any agreement, mortgage or
security agreement with any person or corporation whatsoever which would
reasonably be expected to materially adversely affect the ability of the
Borrower by itself or the Borrower and the Subsidiaries, taken as a whole, to
perform any action or make any payment required by this or any other agreement
between the Borrower and the Bank;
j. The making of any levy, seizure, garnishment, or attachment of or
on any assets of the Borrower if the effect of such action may reasonably be
expected to have a material adverse affect on the ability of the Borrower or the
Borrower and the Subsidiaries taken as a whole to perform its obligations
hereunder;
k. In the event that control of the Borrower is transferred,
directly or indirectly, to any person other than another Subsidiary or Computer
Products, Inc.;
l. The Guarantors, or any of them, default in their obligations
under the Guaranty; or
m. The occurrence of an Event of Default under the CPI Loan
Agreement or under the Amended and Restated Loan Agreement effective as of July
15, 1997 and executed of even date herewith among the Bank, the First Union
National Bank and Computer Products, Inc.; or
n. The occurrence of any material adverse change to the financial
condition of the Borrower.
For purposes of the foregoing subsection (k), "control" shall be deemed to be
the ownership of a sufficient number of shares of the Borrower so that the
holder thereof holds the right to vote, directly or indirectly, in excess of
fifty percent (50%) of the voting stock of the Borrower, or can otherwise elect,
whether directly or indirectly, through stock ownership, proxy, shareholder
agreement or otherwise, one-half (1/2) or more of the members of the Board of
Directors of the Borrower.
The Bank agrees that if an Event of Default has occurred (i) pursuant to Section
6.1(a) of the CPI Loan Agreement because of the failure of the Borrower to make
a required payment thereunder, the Borrower shall have five (5) days to cure
such default prior to the Lender having the right to accelerate the payment of
all amounts owed hereunder; or (ii) pursuant to any other provision of Section
7.1 hereof, that is not due to the provisions of Sections 7.1 (e), (g), (h) or
(m) the Borrower shall have thirty (30) days to cure such default prior to the
Bank having the right to accelerate the payments of all amounts owed hereunder.
Upon the occurrence of an Event of Default and the continuation thereof beyond
any applicable cure period as set forth above or at any time thereafter during
the continuance of any such Event of Default, the Note, the Guaranty, the
Obligation and all other payments required to be made hereunder shall be
forthwith due and payable at the Bank's option, except that on Event of Default
under Sections 7.1(e), (g), (h), the Obligations and all other amounts hereunder
shall be automatically due and payable without further action by the Bank, both
as to principal and interest, without presentment, demand, protest or other
notice of nonpayment or default or other notice of any kind, all of which are
hereby expressly waived, anything contained herein or in the Notes to the
contrary notwithstanding. Upon the occurrence of an Event of Default, (i) the
principal amounts owed hereunder on the Loans shall bear interest at the highest
rate allowable under applicable law, or, if there is no such limit, at the
Default Rate, until such Event of Default is cured or until the amounts
outstanding hereunder are paid in full; and (ii) any money held as a result of a
transaction otherwise permitted pursuant to Section 6.1 of CPI Loan Agreement
shall be delivered to the Bank as collateral for the Obligations. Upon the
occurrence of an Event of Default, the Bank may exercise any rights given to it
by law, the Note, or given by this Agreement, and the Bank may apply any sums
received by the Bank to any of the Obligations or any portion thereof in such
order as the Bank in its sole discretion may determine, any request to the
contrary by the Borrower notwithstanding.
If the Borrower fails to pay any amount payable by it under this
Agreement, the Borrower shall forthwith on demand by the Bank pay interest on
the overdue amount from the due date, whether by maturity or acceleration, up to
the date of actual payment, as well after as before judgment, at the Default
Rate, which shall be the rate determined by the Bank to be 4 percent above the
rate which would otherwise be payable for the Advance for an Interest Period, or
Interest Periods, selected by the Bank.
Without limitation to any other rights under law, the Bank may at any time
while an Event of Default is outstanding set off any matured obligation owed by
the Borrower under this Agreement against any obligation (whether or not
matured) owed by the Bank to the Borrower or any Subsidiary, regardless of the
place of payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the Bank may convert either obligation
at a market rate of exchange in its usual course of business for the purpose of
the set-off. If either obligation is unliquidated or unascertained, the Bank may
set off in an amount reasonably estimated by it in good faith to be the amount
of that obligation.
ARTICLE VIII
MISCELLANEOUS
8.1 COSTS OF LOAN. The Borrower shall pay all reasonable out-of-pocket
expenses incurred by the Bank in connection with the preparation and closing of
this Agreement, the making of each Funding or Advance, the administration of
this Agreement, and in the enforcement of the rights of the Bank under the Loan
Documents and under the Note and any other agreements between the Borrower and
the Bank, including the reasonable attorneys' fees incurred by the Bank in
preparing and closing this Agreement which attorneys' fees (exclusive of
out-of-pocket expenses) shall not exceed $______________, together with the
out-of-pocket fees of such counsel, whether in consultation or in judicial,
administrative, bankruptcy, conservatorship or receivership proceedings, through
all appeals. Such out-of-pocket expenses specifically include all filing fees,
the cost of all documentary tax stamps, if any, and other taxes, excluding
federal or Florida taxes on corporate income, which are or become payable by
reason of the transactions between the Borrower and the Bank which are
encompassed by this Agreement, as well as any penalties or additional taxes
which may become due by reason of the Borrower's instructions to the Bank
concerning the payment of such taxes, and at the Bank's option costs of tax,
judgment and lien searches, and recording fees, if any. Costs incurred to the
date of Closing shall be paid at Closing, by separate check payable to the order
of the Bank.
8.2 SURVIVAL OF REPRESENTATIONS. All covenants, agreements,
representations and warranties by the Borrower and any Guarantor in the Loan
Documents or otherwise in writing in connection herewith shall survive the
execution and delivery to the Bank of this Agreement and the Note, and shall be
true and correct and continue in full force and effect so long as any portion of
any Obligation or the Note is outstanding or this Agreement has not been
terminated, except to the extent such representation and warranty relates to an
earlier date.
8.3 TERMINATION OF LOAN. This Agreement may not be terminated by the
Borrower until payment of the Obligation in full.
8.4 APPLICABLE LAW. The terms and performance of this Agreement and the
terms and payment of the Note shall be construed in accordance with and
controlled and governed by the laws of the State of Florida, and applicable
federal law, as amended from time to time. The Bank, the Borrower and each
Guarantor agree that the venue of any action brought to enforce any rights
created hereunder will be in Broward County, Florida.
8.5 MODIFICATION OF LOAN AGREEMENT. Unless otherwise specifically provided
for in this Agreement, no consent, modification, amendment or waiver of any
provision of this Agreement, the Note, or the other the Loan Documents executed
in conjunction herewith, nor any consent of the Bank to any variance therefrom,
shall in any event be effective unless the same shall be in writing and signed
by the Bank.
8.6 NO WAIVER OF RIGHTS BY Bank. Neither any failure nor any delay on the
part of the Bank in exercising any right, power or privilege under the Loan
Documents shall operate as a waiver thereof; nor shall a single or partial
exercise thereof preclude any other or further exercise or the exercise of any
other right, power or privilege. It is further agreed between the parties that
no waiver of any duty or condition contained in any of the Loan Documents shall
at any time be held to be a waiver of the other duties or conditions of the
Borrower thereunder, or of the same duties or conditions upon a future occasion.
8.7 INTEREST. All interest payable hereunder shall be at a per annum rate
computed by dividing the applicable per annum interest rate by three hundred
sixty (360), except as otherwise provided herein, and multiplying the result by
the actual number of days elapsed. Notwithstanding any provision in the Notes or
in any other document executed in connection with this Agreement, the Borrower's
total liability during any payment period for payment of fees, charges or other
payments which may be deemed interest shall not exceed the higher of the limits
imposed by the usury laws of the State of Florida or of the United States, as
applicable. If, for any reason, total liability for payments which may be deemed
interest, should be greater than the limit imposed by the usury laws of the
State of Florida or of the United States (whichever results in the higher rate
of lawful interest), as applicable, for any interest payment period, then all
sums in excess of those lawfully collectible with interest for that period shall
be applied to the reduction of principal of the Loans, without further agreement
or notice. The Bank has agreed to accept, and the Borrower has agreed to apply,
such sums as a penalty-free prepayment of principal, unless the Bank at any time
elects, by notice to the Borrower in writing, to waive or limit the collection
of any sums in excess of those lawfully collectible as interest rather than
accept those sums as a prepayment of principal. Upon any demand for payment, all
unlawful interest (if any) shall be eliminated.
8.8 SEVERABILITY. In case all or any part of one or more of the provisions
contained in the Loan Document should be invalid, illegal or unenforceable in
any respect, the validity, legality or enforceability of the remaining
provisions contained herein or therein and the remainder of such provision shall
not in any way be affected or impaired thereby.
8.9 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and shall be binding upon the successors and assigns of the Bank and the
Borrower. The Bank shall have the right to syndicate its interests in the Loans,
or either of them, or to grant participation and transfer interests in the Note
to other persons and to furnish such information as is reasonably required to
induce such persons to enter into such arrangements and to satisfy any
regulatory requirements pertaining thereto; provided, however, that the Borrower
shall have the right to approve all such participants, which approval shall not
be unreasonably withheld; and provided, further, that the Bank shall not be
entitled to syndicate or transfer interests in more than fifty percent (50%) of
its interest in the Loans. In the event the Bank notifies the Borrower that the
Bank will grant such participation, or assign a portion of the Lender's rights
and obligations in the Loans, the Bank acknowledges that the Borrower will not
be deemed to be acting unreasonably if it denies such request because the entity
to whom the Bank proposes to grant a participation or assign such rights and
obligations will require payments under Section 2.4 hereof materially in excess
of those required to be paid to the Lender. The Borrower will take such actions
as the Bank may reasonably require to effect the grant and performance of such
participation or the assignment of an interest of its rights and obligations to
another entity.
8.10 NOTICES. All notices, demands, requests, consents or other
communications required or permitted to be given or made under this Agreement in
writing, shall be deemed given or made when delivered in person, five (5) days
after such communication is posted in the mails, or one (1) day after such
communication is sent by a nationally recognized overnight courier service.
Notice shall be given as follows:
First Union National Bank
200 East Broward Boulevard
Ft. Lauderdale, Florida 33301
ATTN: Corporate Banking,
Mr. M. Walker Duvall, Senior Vice President
AND
First Union National Bank
4299 N.W. 36th Street
Miami Springs, Florida 33166
ATTN: Ms. Missy Morgan, Senior Vice President
AND
First Union National Bank
London Branch
One Bishopgate
LONDON EC2N 3AB ENGLAND
ATTN: Ian G. Morrison, Vice President
With a copy to:
Holland & Knight LLP
701 Brickell Avenue
Suite 3000
Miami, Florida 33131
ATTN: Douglas F. Darbut, Esq.
If to the Borrower:
c/o Herbert Elektronische Gerate GmbH & Co. Kg.
Computer Products, Inc.
7900 Glades Road
Suite 500
Boca Raton, Florida 33434
ATTN: Richard Thompson
With a copy to:
Hertzog, Calamari & Gleason
100 Park Avenue
New York, New York 10017
ATTN: John D. Vaughan, Esq.
If to the Guarantors:
c/o Computer Products, Inc.
7900 Glades Road
Suite 500
Boca Raton, Florida 33434
ATTN: Richard Thompson
The foregoing addresses may be changed by either party by giving notice to the
other party in accordance with the above.
8.11 INCORPORATION OF TERMS. It is mutually understood and agreed by and
between the parties hereto on behalf of themselves, and their respective
representatives or successors in interest, that the Note and other agreements
between the Borrower and the Bank heretofore and hereinafter described and all
of the conditions, stipulations, agreements and covenants contained in said Note
and other agreements are hereby incorporated by reference to the same extent and
effect as if they were fully set forth verbatim herein, and made a part of this
Agreement, until this Agreement is terminated by the payment of the Obligation
in full. It is further mutually understood and agreed that the Borrower shall
perform, comply with, and abide by each and every warranty, stipulation,
agreement, condition and covenant in the Note, and other agreements, and the
provisions of this Agreement.
In the event of an ambiguity or conflict of terms between any of the
provisions of the foregoing documents, the terms of this Agreement shall be
deemed to amend and control all of the other documents; and, to the extent that
any of the agreements are silent, each shall supplement the others; provided,
however, in the event of any conflict between the terms of this Agreement and
any of the instruments referenced above, the terms which, in the Bank's sole
discretion, grant the Bank the greater protection with respect to its security
for the Note or in any other manner are of greater benefit to the Bank, shall
control. All provisions of contemporaneous or previous agreements and
understandings between the Borrower and the Bank in conflict with any expressed
provision hereof shall be merged into this Agreement and be extinguished and of
no further force and effect.
8.12 COUNTERPARTS. This Agreement may be signed in counterparts, each of
which shall be considered an original.
ARTICLE IX
INDEMNIFICATION
9.1 NET PAYMENTS. All payments by the Borrower under this Agreement and
the Note shall be made without setoff or counterclaim and in such amounts as may
be necessary in order that all payments, after deduction or withholding for or
on account of any present or future taxes, levies, imposts, duties or other
charges of whatsoever nature imposed by any government or any political
subdivision or taxing authority thereof (collectively the "Taxes"), shall not be
less than the amounts otherwise specified to be paid under this Agreement and
the Note. Notwithstanding anything to the contrary contained in this Section
9.1, the Borrower shall not be liable for the payment of any tax on or measured
by net income imposed on or measured by the net income or portion thereof of the
Bank. The Borrower shall pay all Taxes when due (and indemnify the Bank against
any liability therefor) and shall promptly (and in any event not later than
thirty (30) days thereafter) furnish to the Bank any certificates, receipts and
other documents which may be required (in the judgment of the Bank) to establish
any tax credit to which the Bank may be entitled. The Bank shall promptly
reimburse the Borrower upon receipt by the Bank of any refund or credit paid to
the Bank for which and to the extent the Bank has previously been reimbursed by
Borrower under this Section. The obligations of the Borrower under this Section
9.1 shall survive the termination of this Agreement and the repayment of the
Notes.
The Bank will cooperate with reasonable requests of the Borrower to seek
refunds of amounts payable hereunder and to minimize amounts payable hereunder,
provided that Borrower shall pay the costs and expenses thereof and provided
that such request shall not require any action, in the opinion of the Bank,
which would or may adversely affect the Bank.
ARTICLE X
WAIVER OF JURY TRIAL AND VENUE
10.1 Arbitration. Upon demand of any party hereto, whether made
before or after institution of any judicial proceeding, any dispute, claim or
controversy arising out of, connected with or relating to this Loan Agreement
and the other Loan Documents ("Disputes") between or among parties to this Loan
Agreement shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the right of that
party to demand arbitration hereunder. Disputes may include, without limitation,
tort claims, counterclaims, disputes as to whether a matter is subject to
arbitration, claims brought as class actions, claims arising from Loan Documents
executed in the future, or claims arising out of or connected with the
transaction reflected by the Notes.
Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in Miami, Florida. The expedited
procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000.00. All applicable statutes of
limitation shall apply to any Dispute. A judgment upon the award may be entered
in any court having jurisdiction. The panel from which all arbitrators are
selected shall be comprised of licensed attorneys. The single arbitrator
selected for expedited procedure shall be a retired judge from the highest court
of general jurisdiction, state or federal, of the state where the hearing will
be conducted or if such person is not available to serve, the single arbitrator
may be a licensed attorney. Notwithstanding the foregoing, this arbitration
provision does not apply to disputes under or related to swap agreements.
10.2 PRESERVATION AND LIMITATION OF REMEDIES. Notwithstanding the
preceding binding arbitration provisions, Borrower and Bank agree to preserve,
without diminution, certain remedies that any party hereto may employ or
exercise freely, independently or in connection with an arbitration proceeding
or after an arbitration action is brought Borrower and Bank shall have the right
to proceed in any court of proper jurisdiction or by self-help to exercise or
prosecute the following remedies, applicable: (i) all rights of self-help
including peaceful occupation of real property and collection of rents, set-off,
and peaceful possession of personal property; (ii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment or receiver and filing an involuntary bankruptcy
proceeding; and (iii) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of an arbitrator to
grant similar remedies that may be requested by a party in a Dispute.
Borrower and Bank agree that they shall not have a remedy of punitive or
exemplary damages against the other in any Dispute and hereby waive any right or
claim to punitive or exemplary damages they have now or which may arise in the
future in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially.
In the event that the provisions of Section 10.1 or 10.2 hereof are found
to be unenforceable and a Dispute may not be resolved pursuant to those
Sections, the parties hereto agree that the following provision shall be
applicable:
WAIVER OF JURY TRIAL. THE BANK AND THE BORROWER AND EACH GUARANTOR
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EACH MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THE LOANS, THIS AGREEMENT AND ANY AGREEMENTS
CONTEMPLATED HEREBY TO BE EXECUTED IN CONJUNCTION THEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
EACH PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR Bank AND BORROWER
ENTERING INTO THIS AGREEMENT.
10.3 WAIVER OF PLEA OF JURISDICTIONS OR VENUE. The Borrower and each
Subsidiary hereby waives any plea of jurisdiction or venue as not having a place
of business in Broward County, Florida, and hereby specifically authorizes any
action brought upon the enforcement of the Loan Documents by Bank to be
instituted and prosecuted in either the Circuit Court of Broward County,
Florida, or in the United States District Court for the Southern District of
Florida, at the election of Bank.
IN WITNESS WHEREOF, the Bank and the Borrower have caused these presents
to be executed in their respective names by their duly authorized executive
officers, at the place first set forth herein, all as of this 15th day of July,
1997.
FIRST UNION NATIONAL BANK,
LONDON BRANCH
By:
Joseph M. Mayhew
Its: Senior Vice President
HERBERT ELEKTRONISCHE GERATE GMBH & CO. KG,
By: Herbert Zehnte Betelligungs
und-Verwaltungs-GmbH, as general partner
for Herbert Elektronische Gerate GmbH & Co. KG
Mr. Richard Thompson
Geschaftsfuhrer
Date of Execution: November _____, 1997
Place of Execution: Eden Prairie, Minnesota
(Corporate Seal)
Computer Products GmbH, as Partner and
future Limited Partner of Herbert GmbH & Co. KG
upon its registration in Commercial
Register A of Frankfurt am Main
Mr. Gary Duffy
Date of Execution: , 1997
Place of Execution: Youghal County Cork,Ireland
Mr. Siegfried Georg Kreuzer
Date of Execution: , 1997
Place of Execution: Amberg, Germany
CHARLOTTE, NORTH CAROLINA
I HEREBY CERTIFY that the foregoing instrument was acknowledged before me
this _7th__ day of November, 1997, by Joseph M. Mayhew, as Senior Vice
President of First Union National Bank, London Branch on behalf of the
corporation. He is personally known to me (YES) (NO) or who produced
______________________ as identification.
WITNESS my hand and seal this _7th_ day of November, 1997.
Carla Eaker
- -----------------------------------
NOTARY PUBLIC
My Commission Expires: August 21, 2002
Eden Prairie, Minnesota
Place of Execution
I, _Karen Scheldroup, a Notary Public within and for the State of
Minnesota duly commissioned and acting, do hereby certify that on this 6th_ day
of November, 1997, personally appeared RICHARD THOMPSON, as Geschaftsfuhrer of
Herbert Zehnte Betelligungs-undVerwaltungs GmbH, as general partner for
Elektronische Gerate GmbH & Co. KG, a German partnership, to me personally known
to be the person who signed the foregoing instrument, who being duly sworn and
being informed of the contents of said instrument, stated and acknowledged on
oath that he signed, executed, sealed and delivered same of his free and
voluntarily act and deed, for the uses, purposes and considerations therein
expressed and set forth.
WITNESS my hand and seal this __6th day of November, 1997.
Karen Scheldroup
- -----------------------------------
NOTARY PUBLIC
My Commission Expires: Jan. 31, 2000
Youghal County Cork, Ireland
Place of Execution
I, Patrick lavan, a Notary Public within and for the Republic
of Ireland, duly commissioned and acting, do hereby certify that on this 13th
day of November, 1997, personally appeared GARY DUFFY, as Authorized Signatory
of Computer Products GmbH, acting as partner and future Limited Partner of
Herbert GmbH & Co. KG upon its registration in the Commercial Register A of
Frankfurt am Main, to me personally known to be the person who signed the
foregoing instrument, who being duly sworn and being informed of the contents of
said instrument, stated and acknowledged on oath that he signed, executed,
sealed and delivered same of his free and voluntarily act and deed, for the
uses, purposes and considerations therein expressed and set forth.
WITNESS my hand and seal this 13th day of November, 1997.
Patrick Lavan
- -----------------------------------
NOTARY PUBLIC
My Commission Expires: