Exhibit 10.43
LOAN AGREEMENT
(EXIM BANK-GUARANTEED LINE OF CREDIT)
This Loan Agreement (this "Agreement") dated as of June 1, 2000 is between
BANK OF AMERICA, N.A. (the "Bank") and MWI, INC., D/B/A DANAM ELECTRONICS (the
"Borrower").
1. DEFINITIONS
1.1 Defined Terms. In addition to the terms which are defined
elsewhere in this Agreement, the following terms have the meanings indicated for
the purposes of this Agreement:
"Availability Period" means the period commencing on the date of
this Agreement and ending on June 30,2001.
"Borrower Agreement" means that certain Borrower Agreement entered
into between Bank and Borrower with reference to this credit transaction
under the Export-Import Bank of the United States Working Capital
Guarantee Program.
"Eligible Accounts Receivable" means all of the Borrower's accounts
that are (i) due from AVL of Austria, (ii) supported by irrevocable
letters of credit in favor of the Borrower or (iii) due from a foreign
buyer that is specifically approved by Eximbank and the Bank, in their
sole and absolute discretion; provided, however, that "Eligible Accounts
Receivable" shall not include any account that is not covered by the
Eximbank Guaranty, any account that is not permitted to be included in the
Export-Related Borrowing Base pursuant to the Borrower Agreement or any
account that the Bank may from time to time deem to be ineligible.
"Eligible Inventory" means all of the Borrower's inventory that is
permitted to be included in the Export-Related Borrowing Base pursuant to
the Borrower Agreement; provided, that "Eligible Inventory" shall not
include any inventory that (i) is not covered by the Eximbank Guaranty or
(ii) that the Bank may from time to time deem to be ineligible.
"Eximbank" means the Export-Import Bank of the United States.
"Eximbank Guaranty" means that certain Working Capital Guaranty
Agreement issued by Eximbank in favor of Bank in support of ninety percent
(90%) of Borrower's obligations under this Agreement.
"Export-Related Borrowing Base" means, at the date of determination
thereof, the sum of the following:
(a) 90% of the Eligible Accounts Receivable; and
(b) 75% of the Eligible Inventory.
"Maximum Amount" means the amount of Two Million U.S. Dollars
($2,000,000.00).
"Note" means the Promissory Note dated of the date herewith by the
Borrower in favor of the Bank in the amount of $2,000,000 evidencing the
line of credit established hereby.
"Prime Rate" means the rate of interest publicly announced from time
to time by the Bank as its Prime Rate. The Prime Rate is set by the Bank
based on various factors, including the Bank's costs and desired return,
general economic conditions and other factors, and is used as a reference
point for pricing some loans. The Bank may price loans to its customers
at, above, or below the Prime Rate. Any change in the Prime Rate shall
take effect at the opening of business on the day specified in the public
announcement of a change in the Bank's Prime Rate.
"Termination Date" means the last day of the Availability Period
1.2 Terms Defined in Borrower Agreement. Capitalized terms not
otherwise defined herein shall have the meanings given to them in the Borrower
Agreement.
2. LINE OF CREDIT: AMOUNT AND TERMS
2.1 Line of Credit Amount.
(a) During the Availability Period, the Bank will provide a
line of credit to the Borrower. This is a revolving line of credit
providing for cash advances and Standby Letters of Credit. During the
Availability Period, the Borrower may repay principal amounts and reborrow
them.
(b) The following limitations will apply to the line of
credit:
(i) The outstanding principal balance of advances under
the line of credit plus the outstanding amounts of any Letters of
Credit, including amounts drawn on Letters of Credit and not yet
reimbursed, may not exceed the Maximum Amount.
(ii) The outstanding principal balance of advances under
the line of credit plus the outstanding amounts of any Letters of
Credit, including amounts drawn on Letters of Credit and not yet
reimbursed, may not exceed at any one time the Export-Related
Borrowing Base.
2.2 Advances under the Line of Credit.
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(a) The Borrower will repay in full all principal and any
unpaid interest or other charges outstanding under this line of credit no
later than the last day of the Availability Period.
(b) The Borrower will pay interest on July 1, 2000, and then
monthly thereafter on the same day of the month until payment in full of
any principal outstanding under this line of credit.
(c) Advances under the line of credit will bear interest at a
rate per annum equal to the PRIME Rate plus 1.00 percentage point.
2.3 Letters of Credit. The Borrower may request the Bank to issue
Standby Letters of Credit subject to the following requirements:
(a) Each Letter of Credit shall expire on or before 365 days
after the date such Letter of Credit is issued. It is provided, however,
that no Standby Letter of Credit shall expire later than the Termination
Date, unless the Bank and EximBank otherwise agree.
(b) The amount of Letters of Credit outstanding at any one
time (including amounts drawn on Letters of Credit and not yet reimbursed)
may not exceed One Million Dollars ($1,000,000.00).
(c) The Borrower agrees:
(i) to pay the Bank, on demand, all amounts paid by the
Bank under or in respect of a Letter of Credit issued for the
Borrower's account. At the option of the Bank, any sum drawn under a
Letter of Credit may be added to the principal amount outstanding
under this Agreement. The amount will bear interest and be due as
described elsewhere in this Agreement.
(ii) if there is a default under this Agreement, to
immediately prepay and make the Bank whole for any outstanding
Letters of Credit.
(iii) that the issuance of any Letter of Credit and any
amendment to a Letter of Credit is subject to the Bank's written
approval and must be in form and content satisfactory to the Bank
and in favor of a beneficiary acceptable to the Bank.
(iv) to sign the Bank's form Application and Agreement
for Standby Letter of Credit.
(v) to pay any standard issuance and/or other fees that
the Bank notifies the Borrower will be charged for issuing and
processing Letters of Credit for the Borrower.
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(vi) to allow the Bank to automatically charge its
checking account for applicable fees, discounts, and other charges.
2.4 Mandatory Payment: Additional Collateral. If at any time and for
any reason the total amount of credit outstanding under this Agreement exceeds
the limitations set forth in the Borrower Agreement or in Paragraph 2.1 of this
Agreement, the Borrower shall, upon the Bank's election and demand, (a) pay to
the Bank the amount of the excess; or (b) deliver to the Bank additional
Collateral of a type and in an amount satisfactory to the Bank and Eximbank.
Payments under this Paragraph may be applied to the obligations of the Borrower
to the Bank in the order and manner as the Bank in its discretion may determine.
Payments to be applied to outstanding Letters of Credit and drafts accepted
under Letters of Credit may, at the Bank's option, be used to prepay, or held as
cash collateral to secure, the Borrower's obligations to the Bank with respect
thereto.
2.5 Mandatory Prepayment. Advances under the line of credit shall be
subject to mandatory prepayment as provided in Section 1 of the Note.
3. [INTENTIONALLY OMITTED]
4. FEES AND EXPENSES
4.1 Fees.
(a) Eximbank Fees. The Borrower agrees to pay an Eximbank
guaranty fee in the amount of Thirty Thousand Dollars ($30,000.00),
payable at closing. In addition, the Borrower agrees to pay the Eximbank
application fee in the amount of One Hundred Dollars ($ 100.00) on or
before the date of this Agreement.
(b) Waiver Fee. If the Bank, at its discretion, agrees to
waive or amend any terms of this Agreement, the Borrower will, at the
Bank's option, pay the Bank a fee for each waiver or amendment in an
amount advised by the Bank at the time the Borrower requests the waiver or
amendment. Nothing in this paragraph shall imply that the Bank is
obligated to agree to any waiver or amendment requested by the Borrower.
The Bank may impose additional requirements as a condition to any waiver
or amendment.
(c) Unused Commitment Fee. The Borrower agrees to pay a fee on
any difference between the Maximum Amount and the amount of credit it
actually uses, determined by the weighted average credit outstanding
during the specified period. The fee will be calculated at .25% per year.
The calculation of credit outstanding shall include the undrawn amount of
Letters of Credit. This fee is due on September 1, 2000, and on the first
day of each December, March, and June thereafter until the expiration of
the Availability Period.
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(d) Late Fee. To the extent permitted by law, the Borrower
agrees to pay a late fee in an amount not to exceed four percent (4%) of
any installment that is more than fifteen (15) days late. The imposition
and payment of a late fee shall not constitute a waiver of the Bank's
rights with respect to the default.
(e) Fee for Late Financial Statements. Borrower acknowledges
and agrees that Bank's ability to monitor and evaluate the status of the
Loan is dependent upon Borrower timely providing financial information
required herein. In addition to all other rights and remedies Bank has,
should Borrower fail to timely provide the financial information,
including declaring the loan to be in default, Bank may charge Borrower a
late fee of up to 10 basis points (.10%) of the outstanding principal
balance or committed loan amount, whichever is greater, not to be less
than $500.00. The charging and/or payment of the fee is not a waiver of
the Borrower's continuing obligation to provide the required financial
information
4.2 Expenses. The Borrower agrees to immediately repay the Bank for
all reasonable costs and expenses incurred by the Bank in connection with this
Agreement, including, but not limited to, filing, recording and search fees.
4.3 Reimbursement Costs.
(a) The Borrower agrees to reimburse the Bank for any
reasonable expenses it incurs in the preparation of this Agreement and any
agreement or instrument required by this Agreement. Expenses include, but
are not limited to, reasonable attorneys' fees, including any allocated
costs of the Bank's in-house counsel.
(b) The Borrower agrees to reimburse the Bank for the cost of
periodic audits and appraisals of the collateral securing this Agreement,
at such intervals as the Bank or Eximbank may reasonably require. The
audits and appraisals may be performed by employees of the Bank or by
independent appraisers.
5. COLLATERAL
5.1 Personal Property. The Borrower's obligations to the Bank under
this Agreement will be secured by personal property the Borrower now owns or
will own in the future as listed below. The collateral is further defined in
security agreement(s) executed by the Borrower. In addition, any other personal
property collateral (the "Additional Collateral") securing any other present or
future obligations of the Borrower to the Bank which are not guaranteed under
the Eximbank Guaranty (the "Non-Eximbank Indebtedness") shall also secure
Borrower's obligations under this Agreement; provided, however, that the
Additional Collateral shall be applied first to the satisfaction of the
Non-Eximbank Indebtedness and the balance, if any, to the Borrower's obligations
under this Agreement.
(a) Inventory.
(b) Accounts.
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(c) General Intangibles.
(d) Equipment.
(e) All other assets.
6. DISBURSEMENTS, PAYMENTS AND COSTS
6.1 Disbursements and Payments.
(a) Each payment by the Borrower will be made at the Bank's
banking center (or other location) selected by the Bank from time to time;
and will be made in immediately available funds, or such other type of
funds selected by the Bank.
(b) Each disbursement by the Bank and each payment by the
Borrower will be evidenced by records kept by the Bank. In addition, the
Bank may, at its discretion, require the Borrower to sign one or more
promissory notes.
6.2 Telefax Authorization.
(a) The Bank may honor telefax instructions for advances or
repayments given, or purported to be given, by any one of the individuals
authorized to sign loan agreements on behalf of the Borrower, or any other
individual designated by any one of such authorized signers.
(b) Advances will be deposited in and repayments will be
withdrawn from the Borrower's account number 4774606493, or such other of
the Borrower's accounts with the Bank as designated in writing by the
Borrower.
(c) The Borrower will indemnify and hold the Bank harmless
from all liability, loss, and costs in connection with any act resulting
from telephone or telefax instructions the Bank reasonably believes are
made by any individual authorized by the Borrower to give such
instructions. This paragraph will survive this Agreement's termination,
and will benefit the Bank and its officers, employees, and agents.
6.3 Direct Debit.
(a) The Borrower agrees that interest and principal payments
and any fees will be deducted automatically on the due date from the
Borrower's account number 4774606493, or such other of the Borrower's
accounts with the Bank as designated in writing by the Borrower.
(b) The Borrower will maintain sufficient funds in the account
on the dates the Bank enters debits authorized by this Agreement. If there
are insufficient funds
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in the account on the date the Bank enters any debit authorized by this
Agreement, the Bank may reverse the debit.
6.4 Banking Days. Unless otherwise provided in this Agreement, a
banking day is a day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close, or are in fact closed, in the state
where the Bank's lending office is located, and, if such day relates to amounts
bearing interest at an offshore rate (if any), means any such day on which
dealings in dollar deposits are conducted among banks in the offshore dollar
interbank market. All payments and disbursements which would be due on a day
which is not a banking day will be due on the next banking day. All payments
received on a day which is not a banking day will be applied to the credit on
the next banking day.
6.5 Taxes.
(a) If any payments to the Bank under this Agreement are made
from outside the United States, the Borrower will not deduct any foreign
taxes from any payments it makes to the Bank. If any such taxes are
imposed on any payments made by the Borrower (including payments under
this paragraph), the Borrower will pay the taxes and will also pay to the
Bank, at the time interest is paid, any additional amount which the Bank
specifies as necessary to preserve the after-tax yield the Bank would have
received if such taxes had not been imposed. The Borrower will confirm
that it has paid the taxes by giving the Bank official tax receipts (or
notarized copies) within 30 days after the due date.
(b) Payments made by the Borrower to the Bank will be made
without deduction of United States withholding or similar taxes. If the
Borrower is required to pay U.S. withholding taxes, the Borrower will pay
such taxes in addition to the amounts due to the Bank under this
Agreement. If the Borrower fails to make such tax payments when due, the
Borrower indemnifies the Bank against any liability for such taxes, as
well as for any related interest, expenses, additions to tax, or penalties
asserted against or suffered by the Bank with respect to such taxes.
6.6 Additional Costs. The Borrower will pay the Bank, on demand, for
the Bank's costs or losses arising from any statute or regulation, or any
request or requirement of a regulatory agency which is applicable to all
national banks or a class of all national banks. The costs and losses will be
allocated to the loan in a manner determined by the Bank, using any reasonable
method. The costs include the following:
(a) any reserve or deposit requirements; and
(b) any capital requirements relating to the Bank's assets and
commitments for credit.
6.7 Interest Calculation. Except as otherwise stated in this
Agreement, all interest and fees, if any, will be computed on the basis of a
360-day year and the actual number of days elapsed. This results in more
interest or a higher fee than if a 365-day year is used.
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Installments of principal which are not paid when due under this Agreement shall
continue to bear interest until paid.
6.8 Default Rate. Upon the occurrence of any default under this
Agreement, principal amounts outstanding under this Agreement will, at the
option of the Bank, bear interest at a rate which is up to the maximum rate
allowed by law. This will not constitute a waiver of any default.
6.9 Interest Compounding. At the Bank's sole option in each
instance, any interest, fees, costs or disbursements which are not paid when due
under this Agreement shall bear interest from the due date at the Default Rate
set forth above. This may result in compounding of interest.
6.10 Payments in Kind. The Bank, at its option, may require the
Borrower to deliver to the Bank in kind any payments collected by the Borrower
with respect to Export Orders financed under this Agreement, together with a
schedule of the amount so collected and delivered to the Bank. Such payments
shall be delivered through a lockbox, blocked account, or similar arrangement
acceptable to the Bank and shall be credited to interest, principal, and other
sums owed to the Bank under this Agreement in the order and proportion
determined by the Bank in its sole discretion. All such credits will be
conditioned upon collection and any returned items may, at the Bank's option, be
charged to the Borrower.
7. CONDITIONS
7.1 Conditions to First Extension of Credit. The Bank must receive
the following items, in form and content acceptable to the Bank, before it is
required to extend any credit to the Borrower under this Agreement:
(a) Evidence that the execution, delivery and performance by
the Borrower and each guarantor of this Agreement and any instrument or
agreement required under this Agreement have been duly authorized.
(b) A copy of the certified resolutions of the Board of
Directors of the Borrower authorizing the Borrower to borrow under this
Agreement and to execute, deliver and perform its obligations hereunder
and under all other loan documents.
(c) The Borrower Agreement, signed by the Borrower.
(d) The Eximbank Guaranty.
(e) A completed application in a form acceptable to the Bank
and Eximbank.
(f) Signed original security agreements which the Bank
requires.
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(g) Financing statements and fixture filings (and any
collateral in which the Bank requires a possessory security interest),
together with evidence that the security interests and liens in favor of
the Bank are valid, enforceable, and prior to all others' rights and
interests, except those the Bank consents to in writing.
(h) For any personal property collateral located on real
property which is subject to a mortgage or deed of trust or which is not
owned by the Borrower, a subordination or consent to removal from the
owner of the real property and the holder of any mortgage or deed of
trust.
(i) Evidence of insurance coverage, as required in the
"Covenants" section of this Agreement.
(j) Guaranty signed by Jerry West and a guaranty signed by the
president of Infolab on its behalf.
(k) Evidence of good standing for the Borrower from its state
of formation and from any other state in which the Borrower is required to
qualify to conduct its business.
(1) Payment of the Eximbank guaranty fee, the Eximbank
application fee, as required by the paragraphs entitled "Fees" and
"Expenses", and payment of all accrued and unpaid expenses incurred by the
.Bank as required by the paragraph entitled "Reimbursement Costs."
(m) Intercreditor Agreement signed by Texas Community Bank and
Trust, N.A. and The Texas Mezzanine Fund reflecting an agreement on
priority of security interests with the Bank having a first and prior
security interest in export-related accounts and inventory and at least a
third priority security interest in all other assets of the Borrower taken
as collateral for the line of credit.
(n) Letter from Exim Bank waiving failure of Borrower to
comply with certain financial tests.
(o) Any other items required by Eximbank in connection with
the Eximbank Guaranty or which the Bank may reasonably require.
7.2 Conditions to Each Extension of Credit. Before each extension of
credit, including the first, the Borrower shall deliver the following to the
Bank:
(a) A summary of the Export Orders being financed with the
extension of credit, and, if requested by the Bank, copies of such Export
Orders.
(b) If requested by the Bank, a Borrowing Base Certificate
which shall be current within five (5) banking days of the date of the
request.
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8. REPRESENTATIONS AND WARRANTIES
When the Borrower signs this Agreement, and until the Bank is repaid
in full, the Borrower makes the following representations and warranties. Each
request for an extension of credit constitutes a renewal of these
representations and warranties as of the date of the request:
8.1 Organization of Borrower. The Borrower is a corporation duly
formed and existing under the laws of the state where organized.
8.2 Authorization. This Agreement, and any instrument or agreement
required hereunder, are within the Borrower's powers, have been duly authorized,
and do not conflict with any of its organizational papers.
8.3 Enforceable Agreement. This Agreement is a legal, valid and
binding agreement of the Borrower, enforceable against the Borrower in
accordance with its terms, and any instrument or agreement required hereunder,
when executed and delivered, will be similarly legal, valid, binding and
enforceable.
8.4 Good Standing. In each state in which the Borrower does
business, it is properly licensed, in good standing, and, where required, in
compliance with fictitious name statutes.
8.5 No Conflicts. This Agreement does not conflict with any law,
agreement, or obligation by which the Borrower is bound.
8.6 Financial Information. All financial and other information that
has been or will be supplied to the Bank is sufficiently complete to give the
Bank accurate knowledge of the Borrower's (and any guarantor's) financial
condition, including all material contingent liabilities. Since the date of the
most recent financial statement provided to the Bank, there has been no material
adverse change in the business condition (financial or otherwise), operations,
properties or prospects of the Borrower (or any guarantor).
8.7 Lawsuits. There is no lawsuit, tax claim or other dispute
pending or threatened against the Borrower which, if lost, would impair the
Borrower's financial condition or ability to repay the loan, except as have been
disclosed in writing to the Bank.
8.8 Collateral. All Collateral required in this Agreement is owned
by the grantor of the security interest free of any title defects or any liens
or interests of others.
8.9 Permits, Franchises. The Borrower possesses all permits,
memberships, franchises, contracts and licenses required and all trademark
rights, trade name rights, patent rights and fictitious name rights necessary to
enable it to conduct the business in which it is now engaged.
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8.10 Other Obligations. The Borrower is not in default on any
obligation for borrowed money, any purchase money obligation or any other
material lease, commitment, contract, instrument or obligation.
8.11 Income Tax Matters. The Borrower has no knowledge of any
pending assessments or adjustments of its income tax for any year.
8.12 No tax Avoidance Plan. The Borrower's obtaining of credit from
the Bank under this Agreement does not have as a principal purpose the avoidance
of U.S. withholding taxes.
8.13 No Event of Default. There is no event which is, or with notice
or lapse of time or both would be, a default under this Agreement.
8.14 Insurance. The Borrower has obtained, and maintained in effect,
the insurance coverage required in the "Covenants" section of this Agreement.
8.15 ERISA Plans.
(a) Each Plan (other than a multiemployer plan) is in
compliance in all material respects with the applicable provisions of
ERISA, the Code and other federal or state law. Each Plan has received a
favorable determination letter from the IRS and to the best knowledge of
the Borrower, nothing has occurred which would cause the loss of such
qualification. The Borrower has fulfilled its obligations, if any, under
the minimum funding standards of ERISA and the Code with respect to each
Plan, and has not incurred any liability with respect to any Plan under
Title IV of ERISA.
(b) There are no claims, lawsuits or actions (including by any
governmental authority), and there has been no prohibited transaction or
violation of the fiduciary responsibility rules, with respect to any Plan
which has resulted or could reasonably be expected to result in a material
adverse effect.
(c) With respect to any Plan subject to Title IV of ERISA:
(i) No reportable event has occurred under Section
4043(c) of ERISA for which the PBGC requires 30-day notice.
(ii) No action by the Borrower or any ERISA Affiliate to
terminate or withdraw from any Plan has been taken and no notice of
intent to terminate a Plan has been filed under Section 4041 of
ERISA.
(iii) No termination proceeding has been commenced with
respect to a Plan under Section 4042 of ERISA, and no event has
occurred or condition exists which might constitute grounds for the
commencement of such a proceeding.
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(d) The following terms have the meanings indicated for
purposes of this Agreement:
(i) "Code" means the Internal Revenue Code of 1986, as
amended from time to time.
(ii) "ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time.
(iii) "ERISA Affiliate" means any trade or business
(whether or not incorporated) under common control with the Borrower
within the meaning of Section 414(b) or (c) of the Code.
(iv) "PBGC" means the Pension Benefit Guaranty
Corporation.
(v) "Plan" means a pension, profit-sharing, or stock
bonus plan intended to qualify under Section 401 (a) of the Code,
maintained or contributed to by the Borrower or any ERISA Affiliate,
including any multiemployer plan within the meaning of Section 4001
(a)(3) of ERISA.
8.16 [INTENTIONALLY OMITTED]
8.17 Location of Borrower. The Borrower's place of business (or, if
the Borrower has more than one place of business, its chief executive office) is
located at the address listed on the signature page of this Agreement.
8.18 Environmental Matters. The Borrower (a) is not in violation of
any health, safety, or environmental law or regulation regarding hazardous
substances and (b) is not the subject of any claim, proceeding, notice, or other
communication regarding hazardous substances. "Hazardous substances" means any
substance, material or waste that is or becomes designated or regulated as
"toxic," "hazardous," "pollutant," or "contaminant" or a similar designation or
regulation under any federal, state or local law (whether under common law,
statute, regulation or otherwise) or judicial or administrative interpretation
of such, including without limitation petroleum or natural gas.
8.19 Compliance with Laws. No consent or approval of any public
authority or other third party is required as a condition to the validity of any
Loan Document, and Borrower is in compliance with all laws and regulatory
requirements to which it is subject.
8.20 Trading With the Enemy. Neither the execution of this Agreement
nor the use of proceeds thereof violates the Trading With the Enemy Act of 1917,
as amended, nor any of the foreign assets control regulations promulgated
thereunder or under the International Emergency Economic Powers Act or the U.N,
Participation Act of 1945.
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9. COVENANTS
The Borrower agrees, so long as credit is available under this Agreement
and until the Bank is repaid in full:
9.1 Use of Proceeds. To use the proceeds of the line of credit only
for the purposes permitted under Section 2.1 of the Borrower Agreement and not
in violation of the Acts referred to in Section 8.20 above.
9.2 Compliance with Borrower Agreement. To comply with each of the
terms, covenants and provisions of the Borrower Agreement. In the event of any
conflict between any provision of this Agreement and a comparable provision in
the Borrower Agreement, the Borrower shall comply with whichever provision is
more restrictive or imposes a greater burden or obligation on the Borrower.
9.3 Financial Information. To provide the following financial
information and statements in form and content acceptable to the Bank, and such
additional information as requested by the Bank from time to time:
(a) Within 120 days of the Borrower's fiscal year end, the
Borrower's annual consolidated and consolidating financial statements,
certified and dated by an authorized financial officer of the Borrower.
These financial statements must be compiled by a Certified Public
Accountant acceptable to the Bank and shall include income statement,
balance sheet and cash flow statement.
(b) Within 45 days of the end of each fiscal quarter the
Borrower's quarterly consolidated and consolidating financial statements,
certified and dated by an authorized financial officer of the Borrower.
These financial statements may be Borrower prepared and shall include
income statement, balance sheet and cash flow statement.
(c) Promptly, upon sending or receipt, copies of any
management letters and correspondence relating to management letters, sent
or received by the Borrower to or from the Borrower's auditor.
(d) Copies of the Borrower's federal income tax return
(together with proof of payment of any tax due), within 30 days of filing,
and, if requested by the Bank, copies of any extensions of the filing
date.
(e) Annual financial statements of Jerry West in form
satisfactory to the Bank within 120 days of each calendar year end and
such guarantor's federal income tax return within 30 days after the filing
of such return.
(f) With the submission of each of the financial statements
required in 9.3(a) and (b) above, a compliance certificate of the Borrower
signed by an authorized financial officer of the Borrower setting forth
(i) the information and computations (in
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sufficient detail) to establish that the Borrower is in compliance with
all financial covenants at the end of the period covered by the financial
statements then being furnished and (ii) whether there existed as of the
date of such financial statements and whether there exists as of the date
of the certificate, any default under Article 11 of this Agreement and, if
any such default exists, specifying the nature thereof and the action the
Borrower is taking and proposes to take with respect thereto.
(g) Promptly upon receipt, copies of all notices, orders, or
other communications regarding (i) any enforcement action by any
governmental authority relating to health, safety, the environment, or any
hazardous substances with regard to the Borrower's property, activities,
or operations, or (ii) any claim against the Borrower regarding hazardous
substances.
(h) A Borrowing Base Certificate in the form of Exhibit 9.3(h)
attached hereto setting forth the Borrowing Base as of the last day of
each month, within 20 days after the end of each month, and, if requested
by the Bank, copies of the Export Orders relating to Accounts Receivable
and Inventory, to the extent included in the Borrowing Base.
(i) An Accounts Receivable aging report detailing the terms of
the amounts due from each Buyer as of the last day of each month, within
20 days after the end of each month.
(j) A statement showing an aging of accounts payable, within
20 days after the end of each month.
(k) An Inventory schedule within 20 days after the end of each
month; the schedule must include a description of the Inventory, its
location and cost, and such other information as the Bank may require.
(l) A listing of the names and addresses of all Buyers
obligated upon the Borrower's Accounts Receivable within 20 days after the
end of each quarter.
(m) Within 120 days of Infolab, Inc.'s fiscal year end,
Infolab, Inc.'s annual consolidated and consolidating financial
statements, certified and dated by an authorized financial officer of
Infolab, Inc. These financial statements must be audited by a Certified
Public Accountant acceptable to the Bank and shall include income
statement, balance sheet and cash flow statement.
(n) Within 45 days of the end of each fiscal semi-annual
period, Infolab, Inc.'s semi-annual consolidated and consolidating
financial statements, certified and dated by an authorized financial
officer of Infolab, Inc.. These financial statements may be Borrower
prepared and shall include income statement, balance sheet and cash flow
statement.
14
(o) With the submission of each of the financial statements
required in 9.3(m) and (n) above, a compliance certificate of Infolab,
Inc. signed by an authorized financial officer of Infolab, Inc. setting
forth (i) the information and computations (in sufficient detail) to
establish that Infolab, Inc. is in compliance with all financial covenants
at the end of the period covered by the financial statements then being
furnished and (ii) whether there existed as of the date of such financial
statements and whether there exists as of the date of the certificate, any
default under this Agreement and, if any such default exists, specifying
the nature thereof and the action Infolab, Inc. is taking and proposes to
take with respect thereto.
(p) Promptly upon the Bank's request, such other books,
records, statements, lists of property and accounts, budgets, forecasts or
reports as to the Borrower and as to each guarantor of the Borrower's
obligations to the Bank as the Bank may request.
9.4 Other Debts. Not to have outstanding or incur any direct or
contingent liabilities or lease obligations (other than those to the Bank), or
become liable for the liabilities of others, without the Bank's written consent.
This does not prohibit:
(a) Acquiring goods, supplies, or merchandise on normal trade
credit.
(b) Endorsing negotiable instruments received in the usual
course of business.
(c) Obtaining surety bonds in the usual course of business.
(d) Liabilities, lines of credit and leases in existence on
the date of this Agreement described in Exhibit 9.4 attached hereto, or
any renewal thereof, together with any replacement facility necessary to
comply with Section 11.18 hereof.
(e) Additional debts and lease obligations for the
acquisition of fixed assets, in an aggregate amount not exceeding $25,000.
9.5 Other Liens. Not to create, assume, or allow any security
interest or lien (including judicial liens) on property the Borrower now or
later owns, except:
(a) Liens and security interests in favor of the Bank.
(b) Liens for taxes not yet due.
(c) Liens outstanding on the date of this Agreement described
in Exhibit 9.5 attached hereto.
9.6 Dividends. Not to declare or pay any dividends on any of its
shares or otherwise make distributions, except an amount sufficient to cover
shareholders' federal and
15
state income tax liability for the immediately preceding year arising as a
direct result of the Borrower's reported income for such year.
9.7 Loans to Officers or Affiliates. Not to make any loans, advances
or other extensions of credit (including extensions of credit in the nature of
accounts receivable or notes receivable arising from the sale or lease of goods
or services) to any of the Borrower's executives, officers, directors or
shareholders (or any relatives of any of the foregoing), or to any affiliated
entities (other than Infolab, Inc.
9.8 Loans and Investments. Not to have any existing, or make any
new, loans or other extensions of credit to, or investments in, any individual
or entity, or make any capital contributions or other transfers of assets to any
individual or entity, except for:
(a) additional capital investments in the Borrower's current
subsidiaries.
(b) extensions of credit in the nature of accounts receivable
or notes receivable arising from the sale or lease of goods or services in
the ordinary course of business to non-affiliated entities.
(c) investments in U.S. treasury bills and other obligations
of the federal government.
9.9 Change of Ownership. Not to cause, permit, or suffer any change,
direct or indirect, in the Borrower's capital ownership.
9.10 Change of Management. Not to make any substantial change in its
present executive or management personnel.
9.11 Notices to Bank. To promptly notify the Bank in writing of:
(a) any lawsuit against the Borrower (or any guarantor).
(b) any substantial dispute between the Borrower (or any
guarantor) and any government authority.
(c) any event of default under this Agreement, or any event
which, with notice or lapse of time or both, would constitute an event of
default.
(d) any material adverse change in the Borrower's (or any
guarantor's) business condition (financial or otherwise), operations,
properties or prospects, or ability to repay the credit.
(e) any change in the Borrower's name, legal structure, place
of business or chief executive office.
16
(f) any actual or contingent liabilities of the Borrower (or
any guarantor) in an amount greater than $25,000 not previously disclosed
to the Bank in writing, and any contingent liabilities that are reasonably
foreseeable.
(g) Reserved.
(h) the receipt of any notice or communication regarding (i)
any threatened or pending investigation or enforcement action by any
governmental authority or any other claim relating to health, safety, the
environment, or any hazardous substances with regard to the Borrower's
property, activities, or operations or (ii) any belief or suspicion of the
Borrower that hazardous substances exist on or under the Borrower's real
property.
(i) any event of default under any agreement of the Borrower
(or any guarantor) in connection with credit facility with any lender, or
any event which, with notice or lapse of time or both, would constitute an
event of default under any such facility.
9.12 Books and Records. To maintain adequate books and records.
9.13 Audits. To allow the Bank and its agents to inspect the
Borrower's properties and examine, audit, and make copies of books and records
at any reasonable time. If any of the Borrower's properties, books or records
are in the possession of a third party, the Borrower authorizes that third party
to permit the Bank or its agents to have access to perform inspections or audits
and to respond to the Bank's requests for information concerning such
properties, books and records. Semi-annual field audits by the Bank's
Asset-Based Lending Division (and any audit after an Event of Default has
occurred) shall be at the Borrower's expense.
9.14 Compliance with Laws. To comply with the laws (including any
fictitious name statute), regulations, and orders of any government body with
authority over the Borrower's business.
9.15 Preservation of Rights. To maintain and preserve all rights,
privileges, and franchises the Borrower now has.
9.16 Maintenance of Properties. To make any repairs, renewals, or
replacements to keep the Borrower's properties in good working condition.
9.17 Perfection of Liens. To help the Bank perfect and protect its
security interests and liens, and reimburse it for related costs it incurs to
protect its security interests and liens.
9.18 Cooperation. To take any action reasonably requested by the
Bank to carry out the intent of this Agreement.
17
9.19 Insurance.
(a) Insurance Covering Collateral. To maintain all risk
property damage insurance policies covering the tangible property
comprising the collateral. Each insurance policy must be in an amount
acceptable to the Bank. The insurance must be issued by an insurance
company acceptable to the Bank and must include a lender's loss payable
endorsement in favor of the Bank in a form acceptable to the Bank.
(b) General Business Insurance. To maintain insurance
satisfactory to the Bank as to amount, nature and carrier covering
property damage (including loss of use and occupancy) to any of the
Borrower's properties, public liability insurance including coverage for
contractual liability, product liability and workers' compensation,
business interruption insurance and any other insurance which is usual for
the Borrower's business.
(c) Evidence of Insurance. Upon the request of the Bank, to
deliver to the Bank a copy of each insurance policy, or, if permitted by
the Bank, a certificate of insurance listing all insurance in force.
(d) Export Credit Insurance. In the event the Borrower obtains
any credit insurance with respect to Eligible Accounts Receivable, either
such insurance shall be assigned to the Bank or the Bank shall be loss
payee.
9.20 Additional Negative Covenants. Not to, without the Bank's
written consent:
(a) engage in any business activities substantially different
from the Borrower's present business.
(b) liquidate or dissolve the Borrower's business.
(c) consumate any consolidation, merger, or other combination,
or become a partner in a partnership, a member of a joint venture, or a
member of a limited liability company.
(d) sell, assign, lease, transfer or otherwise dispose of any
assets for less than fair market value, or enter into any agreement to do
so.
(e) sell, assign, lease, transfer or otherwise dispose of any
part of the Borrower's business or the Borrower's assets except in the
ordinary course of the Borrower's business.
(f) enter into any sale and leaseback agreement covering any
of its fixed assets.
(g) acquire or purchase a business or its assets.
18
(h) voluntarily suspend its business other than weekends,
holidays and vacation periods not to exceed three consecutive weeks.
9.21 No Consumer Purpose. Not to use this loan for personal, family,
or household purposes. The Bank may provide the Borrower (or any guarantor) with
certain disclosures intended for loans made for personal, family, or household
purposes. The fact that the Bank elects to make such disclosures shall not be
deemed a determination by the Bank that the loan will be used for such purposes.
9.22 Bank as Principal Depository. To maintain the Bank as its
principal depository bank, including for the maintenance of business, cash
management, operating and administrative deposit accounts.
9.23 ERISA Plans. Promptly during each year, to pay and cause any
subsidiaries to pay contributions adequate to meet at least the minimum funding
standards under ERISA with respect to each and every Plan; file each annual
report required to be filed pursuant to ERISA in connection with each Plan for
each year; and notify the Bank within ten (10) days of the occurrence of any
Reportable Event that might constitute grounds for termination of any capital
Plan by the Pension Benefit Guaranty Corporation or for the appointment by the
appropriate United States District Court of a trustee to administer any Plan.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time. Capitalized terms in this paragraph" shall have the meanings
defined within ERISA.
9.24 Reserved.
9.25 Compliance with Environmental Requirements. With regard to the
Borrower's property, activities, or operations, to comply with the
recommendations of any qualified environmental engineer or orders or directions
issued by any governmental authority relating to health, safety, the
environment, or any hazardous substances including those orders or directives
requiring the investigation, clean-up, or removal of hazardous substances.
9.26 Accounting Policies. To maintain accounting policies that
comply with generally accepted accounting principles, to be applied consistently
throughout the term of this Agreement.
9.27 Minimum Tangible Net Worth. To maintain, on a consolidated
basis, tangible net worth equal to at least $1,150,000. 'Tangible Net Worth"
means the gross book value of the Borrower's assets (excluding goodwill,
patents, trademarks, trade names, organization expenses, unamortized debt
discount and expense, capitalized or deferred research and development costs,
deferred marketing expenses, deferred receivables, and other like intangibles,
and monies due from officers, directors or employees.
10. [INTENTIONALLY OMITTED]
11. DEFAULT
19
If any of the following events occurs, the Bank may do one or more of the
following: declare the Borrower in default, stop making any additional credit
available to the Borrower, and require the Borrower to repay its entire debt
immediately and without prior notice. If an event of default occurs under the
paragraph entitled "Bankruptcy," below, with respect to the Borrower or any
guarantor, then the entire debt outstanding under this Agreement will
automatically be due immediately.
11.1 Failure to Pay. The Borrower fails to make a payment under this
Agreement when due.
11.2 Lien Priority. The Bank fails to have an enforceable first lien
(except for any prior liens to which the Bank has consented in writing) on or
security interest in any property given as security for this Agreement (or any
guaranty).
11.3 False Information. The Borrower (or any guarantor) has given
the Bank false or misleading information or representations.
11.4 Death or Incompetency. Any guarantor dies or becomes legally
incompetent.
11.5 Bankruptcy. The Borrower (or any guarantor) files a bankruptcy
petition, a bankruptcy petition is filed against the Borrower (or any guarantor)
or the Borrower (or any guarantor) makes a general assignment for the benefit of
creditors.
11.6 Receivers. A receiver or similar official is appointed for a
substantial portion of the Borrower's (or any guarantor's) business, or the
business is terminated, or any guarantor is liquidated or dissolved.
11.7 Lawsuits. Any lawsuit or lawsuits are filed against the
Borrower (or any guarantor); except for lawsuits in an aggregate amount within
applicable insurance coverage, provided that the insurer has issued a letter of
responsibility for payment up to the amount of insurance coverage.
11.8 Judgments. Any judgments or arbitration awards are entered
against the Borrower (or any guarantor), or the Borrower (or any guarantor)
enters into any settlement agreements with respect to any litigation or
arbitration, in an aggregate amount in excess of any insurance coverage and for
which the insurer has issued a letter of responsibility for payment up to the
amount of insurance coverage.
11.9 Government Action. Any government authority takes action that
the Bank believes materially adversely affects the Borrower's (or any
guarantor's) financial condition or ability to repay.
11.10 Material Adverse Change. A material adverse change occurs, or
is reasonably likely to occur, in the Borrower's (or any guarantor's) business
condition (financial or otherwise), operations, properties or prospects, or
ability to repay the credit.
20
11.11 Cross-default. Any default occurs under any agreement in
connection with any credit the Borrower (or any guarantor) or any of the
Borrower's related entities or affiliates has obtained from anyone else or which
the Borrower (or any guarantor) or any of the Borrower's related entities or
affiliates has guaranteed if the default (a) consists of failing to make a
payment when due or breaching a financial covenant or (b) gives the other lender
the right to accelerate the obligation.
11.12 Default under Related Documents. Any default occurs under any
guaranty, subordination agreement, security agreement, deed of trust, mortgage,
or other document required by or delivered in connection with this Agreement or
any such document is no longer in effect.
11.13 Other Bank Agreements. The Borrower (or any guarantor) or any
of the Borrower's related entities or affiliates fails to meet the conditions
of, or fails to perform any obligation under any other agreement the Borrower
(or any guarantor) or any of the Borrower's related entities or affiliates has
with the Bank or any affiliate of the Bank.
11.14 ERISA Plans. Any one or more of the following events occurs
with respect to a Plan of the Borrower subject to Title IV of ERISA, provided
such event or events could reasonably be expected, in the judgment of the Bank,
to subject the Borrower to any tax, penalty or liability (or any combination of
the foregoing) which, in the aggregate, could have a material adverse effect on
the financial condition of the Borrower:
(a) A reportable event shall occur under Section 4043(c) of
ERISA with respect to a Plan.
(b) Any Plan termination (or commencement of proceedings to
terminate a Plan) or the full or partial withdrawal from a Plan by the
Borrower or any ERISA Affiliate.
11.15 [INTENTIONALLY OMITTED]
11.16 Breach Under Borrower Agreement. The Borrower breaches or
defaults under any term, condition or provision of the Borrower Agreement.
11.17 Other Breach Under Agreement. The Borrower fails to meet the
conditions of, or fails to perform any obligation under, any term of this
Agreement not specifically referred to in this Article. This includes any
failure or anticipated failure by the Borrower to comply with any financial
covenants set forth in this Agreement, whether such failure is evidenced by
financial statements delivered to the Bank or is otherwise known to the Borrower
or the Bank.
11.18 Domestic Revolving Credit Facility. The Borrower fails to
maintain a revolving credit facility in an amount of at least $750,000 with a
financial institution for the financing of accounts and inventory that are not
related to export from the United States.
21
12. ENFORCING THIS AGREEMENT; MISCELLANEOUS
12.1 GAAP. Except as otherwise stated in this Agreement, all
financial information provided to the Bank and all financial covenants will be
made under generally accepted accounting principles, consistently applied.
12.2 Governing Law. This Agreement is governed by Texas law.
12.3 Successors and Assigns. This Agreement is binding on the
Borrower's and the Bank's successors and assignees. The Borrower agrees that it
may not assign this Agreement without the Bank's prior consent. The Bank may
sell participations in or assign this loan, and may exchange financial
information about the Borrower with actual or potential participants or
assignees. If a participation is sold or the loan is assigned, the purchaser
will have the right of set-off against the Borrower.
12.4 Severability; Waivers. If any part of this Agreement is not
enforceable, the rest of the Agreement may be enforced. The Bank retains all
rights, even if it makes a loan after default. If the Bank waives a default, it
may enforce a later default. Any consent or waiver under this Agreement must be
in writing.
12.5 Administration Costs. The Borrower shall pay the Bank for all
reasonable costs incurred by the Bank in connection with administering this
Agreement.
12.6 Attorneys' Fees. The Borrower shall reimburse the Bank for any
reasonable costs and attorneys' fees incurred by the Bank in connection with the
enforcement or preservation of any rights or remedies under this Agreement and
any other documents executed in connection with this Agreement, and in
connection with any amendment, waiver, "workout" or restructuring under this
Agreement. In the event of a lawsuit or arbitration proceeding, the prevailing
party is entitled to recover costs and reasonable attorneys' fees incurred in
connection with the lawsuit or arbitration proceeding, as determined by the
court or arbitrator. In the event that any case is commenced by or against the
Borrower under the Bankruptcy Code (Title 11, United States Code) or any similar
or successor statute, the Bank is entitled to recover costs and reasonable
attorneys' fees incurred by the Bank related to the preservation, protection, or
enforcement of any rights of the Bank in such a case. As used in this paragraph,
"attorneys' fees" includes the allocated costs of the Bank's in-house counsel.
12.7 [INTENTIONALLY OMITTED]
12.8 [INTENTIONALLY OMITTED]
12.9 Final Agreement. This Agreement, the Borrower Agreement, and
any related security or other agreements required by this Agreement,
collectively:
(a) represent the sum of the understandings and agreements
between the Bank and the Borrower concerning this credit;
22
(b) replace any prior oral or written agreements between the
Bank and the Borrower concerning this credit; and
(c) are intended by the Bank and the Borrower as the final,
complete and exclusive statement of the terms agreed to by them.
In the event of any conflict between this Agreement and any other agreements
required by this Agreement, this Agreement will prevail; provided, however, that
in the event of any conflict between any provision of this Agreement and a
comparable provision in the Borrower Agreement, whichever provision is more
restrictive or imposes a greater obligation on the Borrower shall prevail.
12.10 Disposition of Schedules Delivered by Borrower. The Bank shall
be under no obligation to return any schedules, invoices, statements, budgets,
forecasts, reports or other papers delivered by the Borrower and may destroy or
otherwise dispose of such items as the Bank, in its discretion, deems
appropriate.
12.11 Verification of Accounts Receivable. The Bank may at any time,
either orally or in writing, request confirmation from any Buyer of the current
amount and status of the Account Receivable upon which such Buyer is obligated.
12.12 Indemnification. The Borrower will indemnify and hold the Bank
harmless from any loss, liability, damages, judgments, and costs of any kind
relating to or arising directly or indirectly out of (a) this Agreement or any
document required hereunder, (b) any credit extended or committed by the Bank to
the Borrower hereunder, and (c) any litigation or proceeding related to or
arising out of this Agreement, any such document, or any such credit. This
indemnity includes but is not limited to attorneys' fees (including the
allocated cost of in-house counsel). This indemnity extends to the Bank, its
parent, subsidiaries and all of their directors, officers, employees, agents,
successors, attorneys, and assigns. This indemnity will survive repayment of the
Borrower's obligations to the Bank. All sums due to the Bank hereunder shall be
obligations of the Borrower, due and payable immediately without demand.
12.13 Release of Information to Eximbank. The Borrower authorizes
the Bank to release to Eximbank such information and records as Eximbank may
from time to time request concerning matters relating to this Agreement and any
other loans or extensions of credit provided by the Bank to the Borrower.
12.14 Notices. All notices required under this Agreement shall be
personally delivered or sent by first class mail, postage prepaid, or by
overnight courier, to the addresses on the signature page of this Agreement, or
sent by facsimile to the fax numbers listed on the signature page, or to such
other addresses as the Bank and the Borrower may specify from time to time in
writing. Notices sent by first class mail shall be deemed delivered on the
earlier of actual receipt or on the fourth business day after deposit in the
U.S. mail.
23
12.15 Headings. Article and paragraph headings are for reference
only and shall not affect the interpretation or meaning of any provisions of
this Agreement.
12.16 Counterparts. This Agreement may be executed in as many
counterparts as necessary or convenient, and by the different parties on
separate counterparts each of which, when so executed, shall be deemed an
original but all such counterparts shall constitute but one and the same
agreement.
12.17 Commitment Expiration. The Bank's commitment to extend credit
under this Agreement will expire on June 30, 2000, unless this Agreement and any
documents required by this Agreement have been signed and returned to the Bank
on or before that date.
This Agreement is executed as of the date stated at the top of the first page.
BANK OF AMERICA, N.A. MWI,INC., d/b/a Danam Electronics
By: /s/ Richard H. Vitale By /s/ Jerry West
--------------------------------- ----------------------------------
Richard H. Vitale Jerry West
Assistant Vice President President
Address where notices to Address where notices to the
the Bank are to be sent: Borrower are to be sent:
Commercial Banking Group 4230 Shilling Way
901 Main Street, 7th Floor Dallas, Texas 75237
TX1-492-07-01
Dallas, Texas 75202
24
EXHIBIT 9.3(h)
FORM OF BORROWING BASE CERTIFICATE
Exhibit 9.3(h)
EXHIBIT 9.4
EXISTING INDEBTEDNESS
$750,000 Line of Credit from Texas Community Bank & Trust, N.A.
$500,000 Loan from The Texas Mezzanine Fund
Exhibit 9.4
EXHIBIT 9.5
EXISTING LIENS
Liens more particularly described in the UCC-1 financing statements attached
hereto in favor of (a) Texas Community Bank and Trust, N.A. and (b) The Texas
Mezzanine Fund.
Exhibit 9.5