Attached files
file | filename |
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EX-4.2 - EXHIBIT 4.2 - ORBIT FR INC | c14723exv4w2.htm |
EX-32.2 - EXHIBIT 32.2 - ORBIT FR INC | c14723exv32w2.htm |
EX-10.8 - EXHIBIT 10.8 - ORBIT FR INC | c14723exv10w8.htm |
EX-32.1 - EXHIBIT 32.1 - ORBIT FR INC | c14723exv32w1.htm |
EX-31.2 - EXHIBIT 31.2 - ORBIT FR INC | c14723exv31w2.htm |
EX-31.1 - EXHIBIT 31.1 - ORBIT FR INC | c14723exv31w1.htm |
EX-10.7 - EXHIBIT 10.7 - ORBIT FR INC | c14723exv10w7.htm |
EX-23.2 - EXHIBIT 23.2 - ORBIT FR INC | c14723exv23w2.htm |
EX-23.1 - EXHIBIT 23.1 - ORBIT FR INC | c14723exv23w1.htm |
EX-10.9 - EXHIBIT 10.9 - ORBIT FR INC | c14723exv10w9.htm |
EX-10.10 - EXHIBIT 10.10 - ORBIT FR INC | c14723exv10w10.htm |
10-K - 10-K - ORBIT FR INC | c14723e10vk.htm |
Exhibit 4.3

REVOLVING DEMAND NOTE
December 13, 2010
$2,250,000.00 | Pittsburgh, Pennsylvania |
For value received, the undersigned Orbit/FR, Inc., a Delaware corporation, with an address of
506 Prudential Road, Horsham, Pennsylvania 19044, Advanced ElectroMagnetics, Inc., a California
corporation, with an address of 9311 Stevens Road San Tee, CA 92071, Orbit Advanced Technologies,
Inc., a Delaware corporation, with an address of 506 Prudential Road, Horsham, Pennsylvania 19044
and Flam & Russell, Inc., a Delaware corporation, with an address of 506 Prudential Road, Horsham,
Pennsylvania 19044 (collectively, the Borrower), jointly and severally, promise to pay to the
order of Citizens Bank of Pennsylvania, a Pennsylvania, state-chartered bank with an address of 525
William Penn Place, Pittsburgh, Pennsylvania 15219-1724 (together with its successors and assigns,
the Bank), ON DEMAND, the principal amount of Two Million Two Hundred Fifty Thousand Dollars and
Zero Cents ($2,250,000.00) or, if less, such amount as may be the aggregate unpaid principal amount
of all loans or advances made by the Bank to the Borrower pursuant hereto, together with interest
from the date hereof on the unpaid principal balance from time to time outstanding until paid in
full. The aggregate principal balance outstanding shall bear interest thereon at a per annum rate
equal to Two and One-Quarter Percent (2.25%) above the LIBOR Advantage Rate (as hereinafter
defined) for any Interest Period (as hereinafter defined). All accrued and unpaid interest shall be
payable monthly in arrears on the 15 of each month following the end of an Interest Period.
LA Interest Period means with respect to any LIBOR Advantage Loan, the period commencing on
(and including) the date of this Note (the Start Date) and ending on the numerically
corresponding date one month later, and thereafter each one month period ending on the day of such
month that numerically corresponds to the Start Date. If an LA Interest Period is to end in a month
for which there is no day which numerically corresponds to the Start Date, the Interest Period will
end on the last day of such month.
Notwithstanding the date of commencement of any LA Interest Period, interest shall only begin
to accrue as of the date the initial LIBOR Advantage Loan is made hereunder.
LIBOR Advantage Rate means relative to any LA Interest Period, the offered rate for delivery
in two London Banking Days (as hereinafter defined) of deposits of U.S. Dollars for a term
coextensive with the designated LA Interest Period which the British Bankers Association fixes as
its LIBOR Advantage Rate as of 11:00 a.m. London time on the day on which the LA Interest Period
commences, and for a period approximately equal to such Interest Period. If the first day of any LA
Interest Period is not a day which is both a (i) Business Day (as hereinafter defined), and (ii) a
day on which US dollar deposits are transacted in the London interbank market (a London Banking
Day), the LIBOR Advantage Rate shall be determined in reference to the next preceding day which is
both a Business Day and a London Banking Day. If for any reason the LIBOR Advantage Rate is
unavailable and/or the Bank is unable to determine the LIBOR Advantage Rate for any LA Interest
Period, the Bank may, at its discretion, either: (a) select a replacement index based on the
arithmetic mean of the quotations, if any, of the interbank offered rate by first class banks in
London or New York for deposits with comparable maturities or (b) accrue interest at a rate per
annum equal to the Banks Prime rate as of the first day of any LA Interest Period for which the
LIBOR Advantage Rate is unavailable or cannot be determined. Business Day means, any day which is
neither a Saturday, Sunday nor a legal holiday on which commercial banks are authorized or required
to be closed.
This Note is secured by all collateral granted to the Bank by the Borrower or any endorser or
guarantor hereof or by any other party and shall be secured by any additional collateral hereafter
granted to the Bank by the Borrower or any endorser or guarantor hereof or by any other party.
Principal and interest shall be payable at the Banks main office or at such other place as
the Bank may designate in writing in immediately available funds in lawful money of the United
States of America without set-off, deduction or counterclaim. Interest shall be calculated on the
basis of actual number of days elapsed and a 360-day year.
This Note is a revolving note and, subject to the foregoing and in accordance with the
provisions hereof and of any and all other agreements between the Borrower and the Bank related
hereto, the Borrower may, at its option, borrow, pay, prepay and reborrow hereunder at any time
prior to demand for payment hereunder or such earlier date as the obligations of the Borrower to
the Bank under this Note, and any other agreements between the Bank and the Borrower related
hereto, shall become due and payable, or the obligation of the Bank to extend financial
accommodations to the Borrower shall terminate; provided, however, that in any event the principal
balance outstanding hereunder shall at no time exceed the face amount of this Note. This Note shall
continue in full force and effect until all obligations and liabilities evidenced by this Note are
paid in full and the Bank is no longer obligated to extend financial accommodations to the
Borrower, even if, from time to time, there are no amounts outstanding respecting this Note.
BORROWER HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR ATTORNEYS OR THE PROTHONOTARY OR CLERK
OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR IN ANY OTHER JURISDICTION, UPON THE
OCCURRENCE OF AN EVENT OF DEFAULT, TO APPEAR FOR BORROWER IN ANY SUCH COURT, WITH OR WITHOUT
DECLARATION FILED, AS OF ANY TERM OR TIME THERE OR ELSEWHERE TO BE HELD AND THEREIN TO CONFESS OR
ENTER JUDGMENT AGAINST BORROWER IN FAVOR OF THE BANK FOR ALL SUMS DUE OR TO BECOME DUE BY BORROWER
TO THE BANK UNDER THIS NOTE, WITH COSTS OF SUIT AND RELEASE OF ERRORS AND WITH THE GREATER OF FIVE
PERCENT (5%) OF SUCH SUMS OR $10,000 ADDED AS A REASONABLE ATTORNEYS FEE AND FOR DOING SO THIS
NOTE OR A COPY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. SUCH AUTHORITY AND POWER SHALL
NOT BE EXHAUSTED BY ANY EXERCISE THEREOF, AND JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO
TIME AS OFTEN AS THERE IS OCCASION THEREFOR.
BORROWER ACKNOWLEDGES THAT IT HAS BEEN OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY COUNSEL
IN CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS NOTE AND THAT IT KNOWINGLY WAIVES ITS RIGHT
TO BE HEARD PRIOR TO THE ENTRY OF SUCH JUDGMENT AND UNDERSTANDS THAT, UPON SUCH ENTRY, SUCH
JUDGMENT SHALL BECOME A LIEN ON ALL REAL PROPERTY OF BORROWER IN THE COUNTY WHERE SUCH JUDGMENT IS
ENTERED.
Any payments received by the Bank on account of this Note shall, at the Banks option, be
applied first, to accrued and unpaid interest; second, to the unpaid principal balance hereof;
third to any costs, expenses or charges then owed to the Bank by the Borrower; and the balance to
escrows, if any. Notwithstanding the foregoing, any payments received after demand for payment
shall be applied in such manner as the Bank may determine. The Borrower hereby authorizes the Bank
to charge any deposit account which the Borrower may maintain with the Bank for any payment
required hereunder without prior notice to the Borrower.
If pursuant to the terms of this Note, the Borrower is at any time obligated to pay interest
on the principal balance at a rate in excess of the maximum interest rate permitted by applicable
law for the loan evidenced by this Note, the applicable interest rate shall be immediately reduced
to such maximum rate and all previous payments in excess of the maximum rate shall be deemed to
have been payments in reduction of principal and not on account of the interest due hereunder.
The Borrower represents to the Bank that the proceeds of this Note will not be used for
personal, family or household purposes or for the purpose of purchasing or carrying margin stock
or margin securities within the meaning of Regulations U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 221 and 224.
2
The Borrower and each endorser and guarantor hereof grant to the Bank a continuing lien on and
security interest in any and all deposits or other sums at any time credited by or due from the
Bank or any Bank Affiliate (as hereinafter defined) to the Borrower and/or each endorser or
guarantor hereof and any cash, securities, instruments or other property of the Borrower and each
endorser and guarantor hereof in the possession of the Bank or any Bank Affiliate, whether for
safekeeping or otherwise, or in transit to or from the Bank or any Bank Affiliate (regardless of
the reason the Bank or Bank Affiliate had received the same or whether the Bank or Bank Affiliate
has conditionally released the same) as security for the full and punctual payment and performance
of all of the liabilities and obligations of the Borrower and/or any endorser or guarantor hereof
to the Bank or any Bank Affiliate and such deposits and other sums may be applied or set off
against such liabilities and obligations of the Borrower or any endorser or guarantor hereof to the
Bank or any Bank Affiliate at any time, whether or not such are then due, whether or not demand has
been made and whether or not other collateral is then available to the Bank or any Bank Affiliate.
No delay or omission on the part of the Bank in exercising any right hereunder shall operate
as a waiver of such right or of any other right of the Bank, nor shall any delay, omission or
waiver on any one occasion be deemed
a bar to or waiver of the same or any other right on any future occasion. The Borrower and
every endorser or guarantor of this Note, regardless of the time, order or place of signing, waives
presentment, demand, protest, notice of intent to accelerate, notice of acceleration and all other
notices of every kind in connection with the delivery, acceptance, performance or enforcement of
this Note and assents to any extension or postponement of the time of payment or any other
indulgence, to any substitution, exchange or release of collateral, and to the addition or release
of any other party or person primarily or secondarily liable and waives all recourse to suretyship
and guarantor defenses generally, including any defense based on impairment of collateral. To the
maximum extent permitted by law, the Borrower and each endorser and guarantor of this Note waive
and terminate any homestead rights and/or exemptions respecting any premises under the provisions
of any applicable homestead laws, including without limitation, Title 42, Section 8123, of the
Pennsylvania Consolidated Statutes Annotated.
Borrower hereby waives and releases all errors, defects and imperfections in any proceedings
instituted by the Bank under the terms of this Note or any other loan documents, as well as all
benefits that might accrue to the Borrower by virtue of any present or future laws exempting any
property, real or personal, or any part of the proceeds arising from any sale of such property,
from attachment, levy or sale under execution or providing for any stay of execution, exemption
from civil process or extension of time for payment, as well as the right of inquisition on any
real estate that may be levied upon under a judgment obtained by virtue hereof, and Borrower hereby
voluntarily condemns the same and authorizes the entry of such voluntary condemnation on any writ
of execution issued thereon, and agrees that such real estate may be sold upon any such writ in
whole or in part in any order desired by the Bank.
The Borrower and each endorser and guarantor of this Note shall indemnify, defend and hold the
Bank and the Bank Affiliates and their directors, officers, employees, agents and attorneys (each
an Indemnitee) harmless against any claim brought or threatened against any Indemnitee by the
Borrower, by any endorser or guarantor, or by any other person (as well as from attorneys
reasonable fees and expenses in connection therewith) on account of the Banks relationship with
the Borrower or any endorser or guarantor hereof (each of which may be defended, compromised,
settled or pursued by the Bank with counsel of the Banks selection, but at the expense of the
Borrower and any endorser and/or guarantor), except for any claim arising out of the gross
negligence or willful misconduct of the Bank.
The Borrower and each endorser and guarantor of this Note agree to pay, upon demand, costs of
collection of all amounts under this Note including, without limitation, principal and interest,
or in connection with the enforcement of, or realization on, any security for this Note,
including, without limitation, to the extent permitted by applicable law, reasonable attorneys
fees and expenses. Upon demand for payment of any amounts hereunder, interest shall accrue at a
rate per annum equal to the aggregate of 5.0% plus the rate provided for herein. If any payment
due under this Note is unpaid for 10 days or more, the Borrower shall pay, in addition to any
other sums due under this Note (and without limiting the Banks other remedies on account
thereof), a late charge equal to the greater of $35.00 or 5.0% of such unpaid amount. In addition
the Borrower shall pay the Banks customary fee if any payment made on account of this Note is
dishonored.
3
This Note shall be binding upon the Borrower and each endorser and guarantor hereof and upon
their respective heirs, successors, assigns and legal representatives, and shall inure to the
benefit of the Bank and its successors, endorsees and assigns.
The liabilities of the Borrower and each Borrower, if more than one, and any endorser or
guarantor of this Note are joint and several; provided, however, the release by the Bank of the
Borrower or any one or more endorsers or guarantors shall not release any other person obligated on
account of this Note. Any and all present and future debts of the Borrower to any endorser or
guarantor of this Note are subordinated to the full payment and performance of all present and
future debts and obligations of the Borrower to the Bank. Each reference in this Note to the
Borrower and each Borrower, if more than one, and endorser or guarantor of this Note, is to such
person individually and also to all such persons jointly. No person obligated on account of this
Note may seek contribution from any other person also obligated, unless and until all liabilities,
obligations and indebtedness to the Bank of the person from whom contribution is sought have been
irrevocably satisfied in full. The release or compromise by the Bank of any collateral shall not
release any person obligated on account of this Note.
The Borrower and each endorser and guarantor hereof each authorizes the Bank to complete this
Note if delivered incomplete in any respect. A photographic or other reproduction of this Note may
be made by the Bank, and any such reproduction shall be admissible in evidence with the same effect
as the original itself in any judicial or administrative proceeding, whether or not the original is
in existence.
The Borrower will from time to time execute and deliver to the Bank such documents, and take
or cause to be taken, all such other further action, as the Bank may request in order to effect and
confirm or vest more securely in the Bank all rights contemplated by this Note or any other loan
documents related thereto (including, without limitation, to correct clerical errors) or to vest
more fully in or assure to the Bank the security interest in any collateral securing this Note or
to comply with applicable statute or law.
This Note shall be governed by federal law applicable to the Bank and, to the extent not
preempted by federal law, the laws of the Commonwealth of Pennsylvania.
Any notices under or pursuant to this Note shall be deemed duly received and effective if
delivered in hand to any officer or agent of the Borrower or Bank, or if mailed by registered or
certified mail, return receipt requested, addressed to the Borrower or Bank at the address set
forth in this Note or as any party may from time to time designate by written notice to the other
party.
The term Bank Affiliate as used in this Note shall mean any Affiliate of the Bank or any
lender acting as a participant under any loan arrangement between the Bank and the Borrower(s).
The term Affiliate shall mean with respect to any person, (a) any person which, directly or
indirectly through one or more intermediaries controls, or is controlled by, or is under common
control with, such person, or (b) any person who is a director or officer (i) of such person, (ii)
of any subsidiary of such person, or (iii) any person described in clause (a) above. For purposes
of this definition, control of a person shall mean the power, direct or indirect, (x) to vote 5%
or more of the Capital Stock having ordinary voting power for the election of directors (or
comparable equivalent) of such person, or (y) to direct or cause the direction of the management
and policies of such person whether by contract or otherwise. Control may be by ownership,
contract, or otherwise.
4
The Borrower and each endorser and guarantor of this Note each irrevocably submits to the
nonexclusive jurisdiction of any Federal or state court sitting in Pennsylvania, over any suit,
action or proceeding arising out of or relating to this Note. Each of the Borrower and each
endorser and guarantor irrevocably waives, to the fullest extent it may effectively do so under
applicable law, any objection it may now or hereafter have to the laying of the venue of any such
suit, action or proceeding brought in any such court and any claim that the same has been brought
in an inconvenient forum. Each of the Borrower and each endorser and guarantor hereby consents to
any and all process which may be served in any such suit, action or proceeding, (i) by mailing a
copy thereof by registered and certified mail, postage prepaid, return receipt requested, to the
Borrowers, endorsers or guarantors address shown below or as notified to the Bank and (ii) by
serving the same upon the Borrower(s), endorser(s) or guarantor(s) in any other manner otherwise
permitted by law, and agrees that such service shall in every respect be deemed effective service
upon the Borrower or such endorser or guarantor.
THE BORROWER AND EACH ENDORSER AND GUARANTOR ACKNOWLEDGE THAT THIS NOTE IS A DEMAND NOTE AND
THE RIGHT OF THE BANK TO DEMAND PAYMENT OF THIS NOTE IN WHOLE OR IN PART AT ANY TIME SHALL BE
ABSOLUTE, UNCONDITIONAL AND IN THE SOLE DISCRETION OF THE BANK. THE INCLUSION OF EVENTS OF DEFAULT
AND COVENANTS IN ANY LOAN DOCUMENTS BETWEEN THE BANK AND THE BORROWER OR ANY ENDORSER OR GUARANTOR
OTHER PARTY DELIVERED IN CONNECTION WITH THIS NOTE OR OTHERWISE SHALL NOT IN ANY WAY LIMIT THE
DEMAND NATURE OF THIS NOTE AND THE BANK MAY MAKE DEMAND FOR PAYMENT AT ANY TIME FOR ANY OR NO
REASON, WHETHER OR NOT AN EVENT OF DEFAULT HAS OCCURRED UNDER ANY SUCH LOAN DOCUMENTS.
THE BORROWER, EACH ENDORSER AND GUARANTOR AND THE BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, (A) WAIVES ANY AND ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN CONNECTION WITH THIS NOTE, ANY OF THE
OBLIGATIONS OF THE BORROWER, EACH ENDORSER AND GUARANTOR TO THE BANK, AND ALL MATTERS CONTEMPLATED
HEREBY AND DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND (B) AGREES NOT TO SEEK TO CONSOLIDATE ANY
SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CAN NOT BE, OR HAS NOT BEEN, WAIVED. THE
BORROWER, EACH ENDORSER AND GUARANTOR AND THE BANK EACH CERTIFIES THAT NEITHER THE BANK NOR ANY OF
ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BANK
WOULD NOT IN THE EVENT OF ANY SUCH PROCEEDING SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY
JURY.
5
CONFESSION OF JUDGMENT
THE TERMS OF THIS NOTE INCLUDE A WARRANT OF ATTORNEY TO CONFESS JUDGMENT AND HAVE BEEN
NEGOTIATED AND AGREED UPON IN A COMMERCIAL CONTEXT. BORROWER HAS FULLY REVIEWED THE WARRANT OF
ATTORNEY TO CONFESS JUDGMENT WITH ITS OWN COUNSEL, AND IS KNOWINGLY AND VOLUNTARILY WAIVING CERTAIN
RIGHTS IT WOULD OTHERWISE POSSESS, INCLUDING, BUT NOT LIMITED TO, THE RIGHT TO ANY NOTICE OF A
HEARING PRIOR TO THE ENTRY OF JUDGMENT BY THE BANK PURSUANT TO THE FOREGOING WARRANT.
Executed as an instrument under seal as of Dec 13, 2010.
Borrower: Orbit/FR, Inc. |
||||
By: | /s/ Relland Winand | |||
Relland Winand, CFO | ||||
By: | /s/ Per Iversen | |||
Per Iversen, President & CEO | ||||
506 Prudential
Road Horsham, Pennsylvania 19044 Borrower: Advanced ElectroMagnetics, Inc. |
||||
By: | /s/ Relland Winand | |||
Relland Winand, CFO | ||||
By: | /s/ Per Iversen | |||
Per Iversen, President & CEO | ||||
9311 Stevens Rd. San Tee, CA 92071 |
6
Borrower: Orbit Advanced Technologies, Inc. |
||||
By: | /s/ Relland Winand | |||
Relland Winand, CFO | ||||
By: | /s/ Per Iversen | |||
Per Iversen, President & CEO | ||||
506 Prudential Road Horsham, Pennsylvania 19044 Borrower: Flam & Russell, lnc. |
||||
By: | /s/ Relland Winand | |||
Relland Winand, CFO | ||||
By: | /s/ Per Iversen | |||
Per Iversen, President & CEO | ||||
506 Prudential Road Horsham, Pennsylvania 19044 |
7