SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported ) June 26, 1996
CINCINNATI MICROWAVE, INC.
(Exact name of registrant as specified in its charter)
Ohio 0-13136 31-0903863
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
One Microwave Plaza, Cincinnati, Ohio 45249-9502
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code (513) 489-5400
(Former name, former address and former fiscal year, if changed since
last report)
Form 8-K Cincinnati Microwave, Inc.
Item 5. Other Events.
Pursuant to a Forbearance Agreement for Specified Period effective
as of June 30, 1996, between The Huntington National Bank (the "Bank")
and the Company, the Bank has agreed to extend until August 31, 1996
the maturity date of its current credit facility due to expire on
June 30, 1996.
While reserving all of its rights and remedies under the loan
agreement, related loan documents and applicable law, absent a
breach or default under the Forbearance Agreement, the Bank has
agreed to continue to provide loans and advances to the Company
and to forbear (as set forth in the Forbearance Agreement) in the
exercise of its remedies until August 31, 1996.
The Company is continuing its efforts to refinance the existing
Bank debt with other potential lenders; however, there can be no
assurances that the Company's efforts will be successful.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
Exhibit 99 - Forbearance Agreement for Specified Period.
Form 8-K Cincinnati Microwave, Inc.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Cincinnati Microwave, Inc. has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
June 26, 1996
CINCINNATI MICROWAVE, INC.
By: /s/ Elaine M. Bacon
Assistant Corporate Secretary
FORBEARANCE AGREEMENT FOR SPECIFIED PERIOD
This Agreement is entered into as of the 30th day of June, 1996,
by and between Cincinnati Microwave, Inc. (hereinafter the
"Borrower"), and The Huntington National Bank (hereinafter the
"Bank").
RECITALS:
A. As of May 27,1994, the Borrower and the Bank executed a
certain Loan and Security Agreement, which was amended by a
certain First Amendment to Loan and Security Agreement dated as
of December 28, 1994, a certain Second Amendment to Loan and
Security Agreement dated as of March 17, 1995, a certain Third
Amendment to Loan and Security Agreement dated as of August 1,
1995 and a certain Fourth Amendment to Loan and Security
Agreement dated as of December 22, 1995 (hereinafter
collectively the "Loan Agreement"), setting forth the terms of
certain loans to the Borrower.
B. As of May 27, 1994, the Borrower executed and delivered to
the Bank, inter alia, a revolving promissory note in the
original principal sum of $6,000,000.00, which was amended by a
certain First Note Modification Agreement (Revolving Note) dated
as of December 28, 1994, thereby increasing the principal sum of
the note to $7,000,000.00, by a certain Second Note Modification
Agreement (Revolving Note), also dated as of December 28, 1994,
thereby modifying the interest rate applicable to the Revolving
Loan and by a certain Third Note Modification Agreement
(Revolving Note) dated as of December 22, 1995, thereby
increasing the interest applicable to the Revolving Loan and
decreasing the principal sum of the note to $5,000,000.00
(hereinafter collectively the "Revolving Note").
C. As of May 27, 1994, the Borrower executed and delivered to
the Bank, inter alia, a commercial term loan promissory note in
the original principal sum of Four Million Dollars
($4,000,000.00), which was amended by a certain First Note
Modification Agreement (Term Note) dated as of December 28,
1994, thereby decreasing the principal sum of the note to Three
Million Dollars ($3,000,000.00) and by a certain Second Note
Modification Agreement (Term Note), also dated as of December
28, 1994, thereby modifying the interest rate applicable to the
Revolving Loan and changing the amortization of the principal
sum of such note (hereinafter collectively the "Term Note").
The Revolving Note and the Term Note are hereinafter sometimes
collectively termed the "Notes."
D. In connection with the Loan Agreement and the Notes, the
Borrower executed and delivered to the Bank at various times
certain other loan documents, including without limitation a
Standby Letter of Credit Reimbursement Agreement (hereinafter
sometimes the "L/C Agreement"), an Open-End Mortgage, Assignment
of Rents and Security Agreement (as amended from time to time)
(hereinafter sometimes collectively the "Mortgage"), a Patent
Collateral Assignment, an Assignment of Letters Patent,
Inventions, and Applications for Letters of Patent (hereinafter
collectively the "Patent Assignments"), a Trademark Collateral
Assignment and Security Agreement, an Assignment of Marks,
Registrations, and Applications (hereinafter collectively the
"Trademark Assignments"), amendments, note modification
agreements, lockbox agreements, consents, assignments, security
agreements, agreements, instruments, fixture filings and
financing statements, together with any amendments or
modifications executed by the Borrower and the Bank, in
connection with the indebtedness referred to in the Loan
Agreement (all of the foregoing, together with the Notes and the
Loan Agreement, are hereinafter collectively referred to as the
"Loan Documents").
E. As of the 18th day of June, 1996, the Borrower owes to the
Bank under the terms of the Loan Agreement, the principal sum of
$2,150,000.00 with respect to the Term Note, the principal sum
of $183,955.93 with respect to the Revolving Note and with
respect to outstanding letters of credit in the aggregate stated
amount of $0.00, together with interest, fees, expenses, and
other charges pursuant to the Loan Agreement, the Notes, or the
Loan Documents (hereinafter sometimes collectively the
"Indebtedness").
F. To secure the Indebtedness and all other obligations owing
from the Borrower to the Bank, the Borrower has granted to the
Bank a first and exclusive security interest in the Collateral
and in the "Property," as such term is defined in the Mortgage,
in the "Patents," as defined in the Patent Assignments, and in
the "Trademarks," as defined in the Trademark Assignments (all
of the foregoing hereinafter sometimes collectively the
"Collateral Security").
G. The Borrower has identified the following Events of Default
under the terms of the Loan Agreement or the Notes: (1) the
failure of the Borrower to comply with Section 6.18 of the Loan
Agreement with respect to the incurrence of losses; (2) the
failure of the Borrower to comply with Section 6.19 of the Loan
Agreement with respect to cash flow coverage; and (3) the
failure to comply with Section 4.3 of the Loan Agreement to have
all proceeds of the Collateral collected through the lockbox or
to be sent directly to the Bank (collectively the "Designated
Defaults").
H. By reason of the existence of the Designated Defaults, the
Bank has no obligation to make additional advances under the
Revolving Note under the Loan Agreement and the Bank has full
legal right to exercise its rights and remedies under the Loan
Documents or by applicable law. Such remedies include, but are
not limited to, the right to repossession and sale, or
foreclosure, as the case may be, of the Collateral Security.
I. The Borrower requested in January of 1996 that the Bank agree
to forbear for a specific period of time from exercising its
rights and remedies under the Loan Documents and applicable law
pursuant to the terms of this Agreement. In connection
therewith, the Bank and the Borrower attempted unsuccessfully to
agree on the terms of a forbearance agreement. Based upon the
foregoing, the Bank instituted and has maintained the default
rate of interest pursuant to the Notes. Notwithstanding the
parties' inability to reach an agreement with respect to the
terms of a forbearance agreement, the Bank continued to make
advances to the Borrower in connection with the Revolving Note,
up to a maximum amount of $2,500,000.00 beginning March 31,
1996, without waiving any of the Bank's rights and remedies
under the Loan Documents or applicable law. The Bank is willing
to continue to make advances under the Revolving Note to the
Borrower and to forbear in the exercise of its remedies under
the Loan Documents, on the terms and conditions set forth herein.
J. The Designated Defaults are continuing and the Notes mature
on June 30, 1996. By reason thereof, the Bank has no obligation
to make additional advances under the Revolving Note under the
Loan Agreement, and the Bank has full legal right to exercise
its rights and remedies under the Loan Documents, or by
applicable law. Such remedies include, but are not limited to,
the right to repossession and sale, or foreclosure, as the case
may be, of the Collateral Security.
K. The Borrower has requested that the Bank agree to forbear for
a specific period of time from exercising its rights and
remedies under the Loan Documents and applicable law pursuant to
the terms of this Agreement. The Bank is willing to continue to
make advances under the Revolving Note to the Borrower and to
forbear in the exercise of its remedies under the Loan
Documents, on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the recitals and mutual
promises and covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. All capitalized terms not otherwise defined herein shall
have the meaning ascribed to such terms in the Loan Agreement.
2. Forbearance. Subject to the provisions of this Agreement,
absent a breach or default under this Agreement (a "Default"),
and except as otherwise provided herein, the Bank shall continue
to provide loans and advances to Borrower and shall not initiate
collection proceedings against the Borrower or the Collateral
Security from the date of this Agreement through and including
August 31, 1996 (the "Forbearance Period"). The Borrower
acknowledges and agrees that, except as modified by this
Agreement, (i) the Bank reserves the right to enforce each and
every term of this Agreement, the Loan Agreement and the Loan
Documents; (ii) the Bank is under no duty or obligation of any
kind or any nature to grant the Borrower any additional period
of forbearance beyond the Forbearance Period; (iii) the Bank's
actions in entering into this Agreement shall not be construed
as a waiver or relinquishment of, or estoppel to assert, any of
the Bank's rights under the Loan Documents or applicable law;
and (iv) the Bank's actions in entering into this Agreement are
without prejudice to the Bank's right to pursue any and all
remedies available to it on or after the Forbearance Period or
immediately upon the occurrence of a Default.
3. Loan Documents in Effect. All terms and conditions of the
Loan Documents shall remain in full force and effect, except as
modified herein.
4. Confirmation of Security Interests, Liens and Mortgage. The
Borrower acknowledges and agrees that the assignments, security
interests, liens, pledges and mortgages, as the case may be,
granted to the Bank in the Collateral Security, secure the
Indebtedness, and remain first and valid liens therein, subject
only to the liens and encumbrances set forth in the Loan
Agreement. The Borrower further represents and warrants and
agrees that as of the date hereof, there are no claims, set-offs
or defenses to the Indebtedness or the Bank's exercise of any
rights or remedies available to it as a creditor in realizing
upon the Collateral Security, the Loan Agreement, the Loan
Documents and applicable law. In addition, the Borrower has not
assigned any claim, set-off or defense to any person,
individual, and/or entity.
5. Continuing Liens, Security Interests and Mortgage. All of
the Loan Documents, including the Loan Agreement, and any other
document granting the Bank an interest in the Collateral
Security, and the liens, security interests and mortgages
granted thereby, shall remain in full force and effect after the
consummation of the transactions contemplated herein.
6. Forbearance Charge. In consideration of the forbearance
granted by the Bank to the Borrower pursuant to this Agreement,
the Borrower agrees to pay to Bank a non-refundable charge of
$25,000 (the "Forbearance Charge"), which shall be fully earned
as of the date hereof and payable as follows: $12,500.00 on
July 15, 1996, and $12,500.00 on August 15, 1996.
7. Use of Assets. During the Forbearance Period, the Borrower
shall be permitted to use the Collateral Security in the conduct
of its business, as long as such use is not inconsistent with
the Loan Documents and this Agreement.
8. Borrowing Formula. The principal balance of the Revolving
Loan, plus the aggregate stated value of the outstanding Letters
of Credit, shall not exceed an amount equal to the lesser of (a)
$2,500,000 or (b) the sum of (i) the Other Collateral
Availability plus (ii) 80% of Eligible Accounts (collectively
the "Borrowing Base"). "Other Collateral Availability" means
the sum of $200,000.00 attributable to Collateral Security.
Notwithstanding anything to the contrary herein, the aggregate
stated value of the outstanding Letters of Credit shall not
exceed $500,000.00. The Bank, in its sole discretion, reserves
the right upon notice to the Borrower to increase or decrease
the foregoing percentage or the dollar amount attributable to
Other Collateral Availability.
9. Term Loan Principal Payments. Notwithstanding the terms of
the Term Note, the monthly principal payments required to be
made by Borrower thereon shall be $50,000.00 per month beginning
on July 1, 1996.
10. Conditions Precedent to Effectiveness of Agreement. The
Borrower understands that this Agreement shall not be effective,
and the Bank shall have no obligation to forbear from exercising
any rights or remedies unless and until each of the following
conditions precedent has been satisfied not later than the
respective date set forth below, or waived by the Bank (in the
Banks sole discretion), for whose sole benefit such conditions
exist, with the Bank's determination as to whether they have
been timely satisfied being conclusive absent manifest error:
10.1. The Bank shall have received certified resolutions of the
board of directors of the Borrower adopted June 20, 1996
authorizing the Borrower's execution of this Agreement and the
implementation of the transactions contemplated hereby; and
10.2. On or before June 29, 1996, the Borrower shall have
executed and delivered to the Bank this Agreement.
11. Representations and Warranties. To induce the Bank to enter
into this Agreement, Borrower represents and warrants to the
Bank as follows:
11.1. Recitals. The Recitals in this Agreement are true and
correct in all respects;
11.2. Organization. The Borrower is a corporation duly
organized, validly existing, and in good standing under the laws
of the State of Ohio;
11.3. Authority. The Borrower has full corporate power and
authority to execute, deliver and perform this Agreement and has
taken all corporate action required by law, its articles of
incorporation and bylaws to authorize the execution and delivery
of this Agreement. This Agreement is the legal, valid and
binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms;
11.4. Consent and Approvals. No consent or approval of any
party is required in connection with the execution and delivery
of this Agreement by the Borrower, and the execution and
delivery of this Agreement does not (a) contravene or result in
a breach or default under the Borrower's articles of
incorporation or bylaws or any other agreement or instnunent to
which the Borrower is a party or by which any of their
respective properties are bound, or (b) violate any law, rule,
regulation, order, writ, judgment, injunction, decree,
determination or award applicable to the Borrower;
11.5. Continuing Representations. Except in respect of the
Designated Defaults, all representations and warranties
contained in the Loan Agreement are true and correct as of the
date of this Agreement. The Loan Documents represent
unconditional, absolute, valid and enforceable obligations
against the Borrower. The Borrower has no right of setoff or
recoupment, counterclaim, claims or defenses against the Bank or
any other person or entity which would or might effect (i) the
enforceability of any provisions of any documents or (ii) the
collectibility of sums advanced by the Bank in connection with
the Indebtedness. The Borrower understands and acknowledges
that the Bank is entering into this Agreement in reliance upon,
and in partial consideration for, these acknowledgments and
representations, and agrees that such reliance is reasonable and
appropriate; and
11.6. Cooperation of Borrower. The Borrower shall take any
and all reasonable actions of any kind or nature whatsoever,
either directly or indirectly, that are necessary to prevent the
Bank from suffering a loss with respect to the Indebtedness, the
Collateral Security or of any rights or remedies of the Bank
with respect to the Indebtedness, the Loan Documents or this
Agreement in the event of a Default by the Borrower under this
Agreement or any other Loan Documents (or the ability to
exercise such any rights or remedies).
12. Borrower's Covenants. Unless the Bank otherwise consents in
writing, during the Forbearance Period, the Borrower will do the
following:
12.1. Comply with all requirements of all the Loan Documents to
the extent not inconsistent with this Agreement;
12.2. Allow the Bank to conduct at its sole discretion audits
of the Borrower's Eligible Accounts and Eligible Finished Goods
at such times as the Bank shall determine;
12.3. Insure that the Bank is fully informed at all times of
all materials matters relating to the operation of the
Borrower's business, including any business plans, changes in
key personnel or manner of operating its business.
12.4. The Borrower shall have executed and delivered to the
Bank no later than August 31, 1996, a First Amendment to
Trademark Collateral Assignment and Security Agreement and
related documents in form satisfactory to the Bank;
12.5. The Borrower shall have obtained no later than August 31,
1996, execution by Commonwealth, Inc. of the Landlord's Waiver
and Consent in form satisfactory to the Bank, and delivered the
same to the Bank; and
12.6. Supply to the Bank projections in conformance with
Section 7(i) of the Loan Agreement no later than July 1, 1996.
13. Default. A Default shall exist under this Agreement if any
one or more of the following events shall have occurred:
(a) Except with respect to any of the Designated Defaults, any
breach or default in or failure to perform or observe any term,
condition or covenant set forth in, or any event of default
under the Loan Agreement or any of the Loan Documents, or any
other document previously, now or hereafter executed and
delivered by the Borrower to the Bank shall occur after the date
hereof; or
(b) Any breach or default in performance by the Borrower of
any of the agreements, terms, conditions, covenants, warranties
or representations set forth in this Agreement; or
(c) Any representation, warranty, acknowledgement or agreement
of the Borrower in this Agreement was false or misleading in any
respect when made; or
(d) (i) the Borrower shall commence any case, proceeding or
other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have
an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, readjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for it or
for all or any substantial part of its assets, or the Borrower
shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Borrower
any case, proceeding or other action of a nature referred to in
clause (i) above which results in the entry of an order for
relief or any such adjudication or appointment; or (iii) there
shall be commenced against the Borrower any case, proceeding or
other action seeking issuance of a writ of attachment,
execution, distraint or similar process against all or any
substantial part of its assets, which results in the entry of an
order for any such relief; or (iv) the Borrower shall take any
action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clauses
(i), (ii) or (iii) above; or
(e) The Bank, in its sole, good faith discretion, determines
that a material adverse change has occurred after the date
hereof in the financial condition, operations, or business of
the Borrower, or the value of the Collateral Security or the
Bank's interest in the Collateral Security; or
(f) The Collateral Security is removed from the Borrower's
premises (except for sales of inventory in the ordinary course
of business) or tooling located elsewhere in the ordinary course
of business.
14. Cross-Default. The Borrower agrees that a breach or default
under any of the Notes, Loan Documents, or any other document,
whether previously, now, or hereafter executed and delivered to
the Bank shall constitute a default under any and every other
document executed and delivered to the Bank by it at any time.
The Collateral Security shall constitute collateral securing all
notes and all indebtedness of the Borrower to the Bank.
15. Remedies in Event of Default. Immediately upon the
occurrence of a Default, and notwithstanding anything to the
contrary set forth herein, the Bank shall have the rights and
remedies set forth in the Loan Documents and in any other
document previously, now or hereafter executed and delivered to
the Bank by the Borrower, the rights and remedies contained in
this Agreement, and all rights and remedies existing under
applicable law. All rights and remedies shall be cumulative and
not exclusive, and the Bank shall have the right to exercise any
and all other rights and remedies which may be available. Any
action by the Bank against any property or party shall not serve
to release or discharge any other security, property or person
in connection with this transaction.
16. Setoff. In addition to any rights now or hereafter granted
under applicable law or this Agreement and not by way of
limitation of any such rights, upon the occurrence of any
Default, the Bank is hereby authorized by the Borrower at any
time or from time to time, without notice to the Borrower, or
any other person or entity, any such notice being hereby
expressly waived, to setoff and to appropriate and to apply to
the Indebtedness any and all deposits (general or special,
including, but not limited to, indebtedness evidenced by
certificates of deposit, whether matured or unmatured, but not
including trust accounts), and any other indebtedness at any
time held or owing by the Bank, including, but not limited to,
all claims of any nature or description arising out of or
connected with any of the Loan Documents or this Agreement,
regardless of whether or not the Bank shall have made any demand
under any such document or otherwise.
17. Indemnification. In addition to any other obligations of
indemnification, the Borrower hereby assumes responsibility and
liability for, and hereby holds harmless and indemnifies the
Bank from and against, any and all, by way of example but
without limitation, liabilities, demands, obligations, injuries,
costs, damages (direct, indirect or consequential), awards, loss
of interest, principal or any portion of the Indebtedness,
charges, expenses, payments of money and reasonable attorneys'
fees, incurred or suffered, directly or indirectly, by the Bank
and/or asserted against the Bank, by any person or entity
whatsoever, including the Borrower arising out of this
Agreement, or any document executed in connection herewith, or
the relationship between or among the parties hereto, or the
exercise of any right or remedy, including the realization,
disposition or sale of the Collateral Security, or any portion
thereof, or the exercise of any right in connection therewith,
for which the Bank may be liable, for any reason whatsoever
except for the Bank's own acts of gross negligence or willful
misconduct.
18. Effect and Construction of Agreement. Except as expressly
provided herein, the Loan Agreement and the Loan Documents shall
remain in full force and effect in accordance with their
respective terms, and this Agreement shall not be construed to:
(i) impair the validity, perfection or priority of any lien or
security interest securing the Indebtedness;
(ii) waive or impair any rights, powers or remedies of Bank
under the Loan Documents upon termination of the Forbearance
Period, with respect to the Designated Defaults or otherwise;
(iii) constitute an agreement by Bank or require Bank to extend
the Forbearance Period, or grant additional forbearance periods,
or extend the term of the Loan Agreement or the time for payment
of any of the Indebtedness; or
(iv) make any loans or other extensions of credit to Borrower
after termination of the Forbearance Period.
In the event of any inconsistency between the terms of this
Agreement and any of the Loan Documents, this Agreement shall
govern. Borrower acknowledges that it has consulted with
counsel and with such other experts and advisors as it has
deemed necessary in connection with the negotiation, execution
and delivery of this Agreement. This Agreement shall be
construed without regard to any presumption or rule requiring
that it be construed against the party causing this Agreement or
any part hereof to be drafted.
19. Notice. All notices or demands hereunder to parties hereto
shall be sufficient if made in writing, sent by facsimile, and
addressed to the parties respectively as follows:
If to the Bank: The Huntington National Bank
105 West Fourth Street Suite 618
Cincinnati, Ohio 45202
Attn: Steven M. Kuhn, Vice President
Fax No.: 513-762-5101
With a copy to: Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215
Attn: Timothy E. Grady, Esq.
Fax No. 614-227-2100
If to the Borrower: Craig V. Wolf
Chief Financial Officer
One Microwave Plaza
Cincinnati, Ohio 45202
Fax No.: 513-247-4109
With a coy to: Neal Ganulin, Esq.
Frost & Jacobs Suite 2500
201 East Fifth Street
Cincinnati, Ohio 45202-4182
Fax No.: 513-651-6981
20. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the Borrower and the Bank
and their respective successors, heirs (where appropriate) and
assigns; provided, however, that the foregoing shall not
authorize any assignment by the Borrower of its rights or duties
hereunder. The Bank does not undertake to give or to do or
refrain from doing anything directly to or for the benefit of
any person other than the Borrower and, with respect to the
Borrower, other than as described herein. Although third
parties may incidentally benefit from this Agreement, there are
no intended beneficiaries other than the Borrower and the Bank.
21. Indulgence; Modifications. No delay or failure of the Bank
to exercise any right, power or privilege hereunder shall affect
such right, power or privilege nor shall any single or partial
exercise thereof preclude any further exercise thereof, nor the
exercise of any other right, power or privilege. The rights of
the Bank hereunder are cumulative and are not exclusive of any
rights or remedies which the Bank would otherwise have except as
modified herein. No amendment, modification, supplement,
termination, consent or waiver of or to any provision of this
Agreement, or any of the Loan Documents, nor any consent to any
departure therefrom, shall in any event be effective unless the
same shall be in writing and signed by or on behalf of the Bank.
22. Governing Law and Service of Process. This Agreement is
made in the State of Ohio and the validity of this Agreement,
any documents incorporated herein or executed in connection
herewith, and (notwithstanding anything to the contrary therein)
the Loan Documents, and the construction, interpretation, and
enforcement thereof, and the rights of the parties thereto shall
be determined under, governed by, and construed in accordance
with the internal laws of the State of Ohio, without regard to
principles of conflicts of law. Service of process, sufficient
for personal jurisdiction in any action against the Borrower,
may be made by registered or certified mail, return receipt
requested, to its address(es) set forth in Paragraph 19 hereof.
23. Execution On Counterparts. This Agreement may be executed
in any number of counterparts and by different parties on
separate counterparts, each of which counterparts, when so
executed and delivered, shall be deemed to be an original and
all of which counterparts, taken together, shall constitute but
one and the same agreement. Subject to Paragraph 10 hereof,
this Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
24. Entire Agreement. This Agreement, and any agreements,
documents and instnunents executed and delivered pursuant hereto
or in connection herewith, or incorporated herein by reference,
contains the entire agreement of the parties hereto and no party
shall be bound by anything not expressed in writing.
25. Severabilily. Should any part, term or provision of this
Agreement be by the courts decided to be illegal, unenforceable
or in conflict with any law of the state of Ohio, federal law or
any other applicable law, the validity and enforceability of the
remaining portions or provisions of this Agreement shall not be
affected thereby.
26. Reversal of Payments. If the Bank receives any payments or
proceeds of Collateral Security which are subsequently
invalidated, declared to be fraudulent or preferential, set
aside or required to be paid to a trustee, debtor-in-possession,
receiver or any other party under any bankruptcy law, common
law, equitable cause or otherwise, then, to such extent, the
obligations or part thereof intended to be satisfied by such
payments or proceeds shall be reserved and continue as if such
payments or proceeds had not been received by the Bank.
27. Attorneys Fees. The Borrower shall reimburse the Bank
promptly upon demand for all costs and expenses, including
without limitation reasonable attorneys' fees and expenses
(including the fees of the Bank's inside counsel), expended or
incurred by the Bank in any arbitration, judicial reference,
legal action or otherwise in connection with (i) the negotiation
and preparation or the amendment or enforcement of this
Agreement and the Loan Documents, including without limitation,
during any workout, attempted workout, and/or in connection with
the rendering of legal advice as to the Bank's rights, remedies
and obligations under this Agreement and any of the other Loan
Documents, whether or not any form of legal proceeding has
commenced, (ii) collecting any sum which becomes due the Bank
under this Agreement or any of the other Loan Documents, (iii)
any proceeding for declaratory relief, any counterclaim to any
proceeding, or any appeal, (iv) the protection, preservation or
enforcement of any rights or remedies of the Bank or any of the
Collateral Security whether or not any form of legal proceedings
is commenced, or (v) any action necessary to defend, protect,
assert, or preserve any of the Bank's rights or remedics as a
result of or related to any case or proceeding under Chapter 11
of the United States Code, as amended, or any similar law of any
jurisdiction. All of such costs and expenses shall bear
interest from the time of demand at the highest rate then in
effect under the Notes.
28. Release of Claims and Waiver. Borrower hereby release,
remise, acquit and forever discharge Bank and Bank's employees,
agents, representatives, consultants, attorneys, fiduciaries,
servants, officers, directors, partners, predecessors,
successors and assigns, subsidiary corporations, parent
corporations, and related corporate divisions (all of the
foregoing hereinafter called the "Released Parties"), from any
and all actions and causes of action, judgments, executions,
suits, debts, claims, demands, liabilities, obligations, damages
and expenses of any and every character, known or unknown,
direct and/or indirect, at law or in equity, of whatsoever kind
or nature, whether heretofore or hereafter arising, for or
because of any matter or things done, omitted or suffered to be
done by any of the Released Parties prior to and including the
date of execution hereof, and in any way directly or indirectly
arising out of or in any way connected to this Agreement or any
of the Loan Documents, including but not limited to, claims
relating to any settlement negotiations (all of the foregoing
hereinafter called the "Released Matters"). Borrower
acknowledges that the agreements in this paragraph are intended
to be in full satisfaction of all or any alleged injuries or
damages arising in connection with the Released Matters.
Borrower represents and warrants to Bank that it has not
purported to transfer, assign or otherwise convey any right,
title or interest of Borrower in any Released Matter to any
other Person and that the foregoing constitutes a full and
complete release of all Released Matters.
29. VENUE: JURISDICTION: JURY TRIAL WAIVER. BANK AND BORROWER
HEREBY IRREVOCABLY:
(I) CONSENT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
SITTING IN COLUMBUS, OHIO;
(II) AGREE THAT VENUE SHALL BE PROPER IN ANY COURT OF COMPETENT
JURISDICTION LOCATED IN COLUMBUS, OHIO; AND
(III) WAIVE ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF
FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS PARAGRAPH.
(IV) WAIVE THEIR RIGHT TO TRIAL BY JURY IN ANY CONTROVERSY
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE LOAN
AGREEMENT, THE LOAN DOCUMENTS, THE MORTGAGE, THE PATENT
ASSIGNMENTS OR THE TRADEMARK ASSIGNMENTS.
IN WITNESS WHEREOF, the parties hereby have executed this
Agreement as of the date first noted above.
BORROWER:
CINCINNATI MICROWAVE, INC.
By: /ss/ Craig V. Wolf
Its: Vice President/Chief Financial Officer
BANK:
THE HUNTINGTON NATIONAL BANK
By: /ss/ Steven M. Kuhn
Its: Vice President
