LETTER OF CREDIT, LOAN AND SECURITY AGREEMENT
THIS LETTER OF CREDIT, LOAN AND SECURITY AGREEMENT (this "Agreement") is
made as of this 7th day of February, 2000, between AIRPORT SYSTEMS
INTERNATIONAL, INC., a Kansas corporation ("ASI"), and DCI, INC., a Kansas
corporation and a wholly-owned subsidiary of ASI ("DCI"; ASI and DCI being
hereinafter sometimes collectively referred to as the "Borrowers"), and BANK OF
AMERICA, N.A., a national banking association (the "Bank").
RECITALS
WHEREAS, the Borrowers have applied to the Bank for a direct loan (the
"Loan") and for a commitment by the Bank to issue standby and commercial letters
of credit to designated beneficiaries for the account of the Borrowers (the
"Letters of Credit"), the Borrowers' Obligations with respect to which shall not
exceed United States Six Million Dollars (U.S. $6,000,000) in the aggregate
amount at any one time outstanding, to be used to finance export working capital
requirements of ASI; and
WHEREAS, the Bank is willing to extend the Loan to the Borrowers and to
issue the Letters of Credit, if requested, upon the terms and subject to the
conditions of this Agreement.
AGREEMENTS
NOW, THEREFORE, in consideration of the mutual agreements herein and other
good and valuable consideration, the Borrowers and the Bank hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1 DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings:
"ACCOUNT DEBTOR" means the Person who is obligated on a
Receivable.
"ACQUIRE", as applied to any Business Unit or Investment, means
the acquisition of such Business Unit or Investment by purchase, exchange,
issuance of stock or other securities, or by merger, reorganization or any other
method.
"AFFILIATE" means, with respect to a Person, (a) any executive
officer, director, employee or managing agent of such Person, (b) any spouse,
parents, brothers, sisters, children and grandchildren of such Person, (c) any
association, partnership, trust,
entity or enterprise in which such Person is a director, executive officer or
general partner, (d) any other Person that, (i) directly or indirectly, through
one or more intermediaries, controls, or is controlled by, or is under common
control with, such given Person, (ii) directly or indirectly beneficially owns
or holds 10% or more of any class of voting stock or partnership or other
interest of such Person or any Subsidiary of such Person, or (iii) 10% or more
of the voting stock or partnership or other interest of which is directly or
indirectly beneficially owned or held by such Person or a Subsidiary of such
Person. The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through ownership of voting securities or partnership or other
interests, by contract or otherwise.
"AGREEMENT" shall mean this Letter of Credit, Loan and Security
Agreement, including the Exhibits and Schedules hereto, as it may from time to
time be amended, supplemented or otherwise modified in accordance with the terms
hereof.
"APPLICATION AND AGREEMENT FOR COMMERCIAL LETTER OF CREDIT" shall
mean an Application and Agreement for Commercial Letter of Credit in
substantially the form attached hereto as EXHIBIT A and made a part hereof, or
in such other form which is provided by the Bank to the Borrowers as the form of
Application and Agreement which is then in use by the Bank in connection with
the issuance of its Commercial Letters of Credit, which is executed by the
Borrowers and delivered to the Bank in connection with a request for the
issuance of a Commercial Letter of Credit.
"APPLICATION AND AGREEMENT FOR STANDBY LETTER OF CREDIT" shall
mean an Application and Agreement for Standby Letter of Credit in substantially
the form attached hereto as EXHIBIT B and made a part hereof, or in such other
form which is provided by the Bank to the Borrowers as the form of Application
and Agreement which is then in use by the Bank in connection with the issuance
of its Standby Letters of Credit, which is executed by the Borrowers and
delivered to the Bank in connection with a request for the issuance of a Standby
Letter of Credit.
"ASSETS" means all assets of a Person determined in accordance
with GAAP and includable on a balance sheet of such Person prepared in
accordance with GAAP.
"AUTHORIZED BORROWERS' REPRESENTATIVE" shall have the meaning
given to such term in SECTION 4.6 of this Agreement.
"AVAILABLE COMMITMENT" shall mean, at any particular time, an
amount equal to the DIFFERENCE BETWEEN (a) the lesser of (i) the amount of the
Commitment at such time, (ii) $8,000,000 less the outstandings under the line of
credit in the maximum amount of U.S. $3,000,000 which is being extended by the
Bank to the Borrowers as part of the Domestic Financing, (iii) the Collateral
Value at such time and (iv) the export working capital needs of ASI, AND (b) the
Utilized Portion of the Commitment; provided,
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however that in no event will the Available Commitment for Loan advances and
Letters of Credit exceed the amount of the Commitment.
"BANK COMMITMENT LETTER" shall mean the Bank's Commitment Letter
dated January 14, 2000, addressed to ASI.
"BENEFIT PLAN" means an employee benefit plan as defined in
Section 3(35) of ERISA (other than a Multiemployer Plan) in respect of which a
Person or any Related Company is, or within the immediately preceding 6 years
was, an "employer" as defined in Section 3(5) of ERISA, including such plans as
may be established after the Agreement Date.
"BORROWERS' ACCOUNT" shall mean the Borrowers' account number
332200008673 with the Bank.
"BORROWERS' OBLIGATIONS" shall mean, collectively, the Loan
Obligations and the Letter of Credit Obligations, together with all other sums
due from the Borrowers to the Bank under the terms of the Financing Documents.
"BORROWING BASE CERTIFICATE" shall mean a Certificate in
substantially the form attached hereto as EXHIBIT C and made a part hereof,
which is completed and executed by ASI and delivered to the Bank at such times
as are required by the terms and conditions of SECTION 8.1(G) hereof.
"BUSINESS DAY" shall mean a day on which commercial banking
institutions are open for business in Kansas City, Missouri.
"BUSINESS UNIT" means the assets constituting the business, or a
division or operating unit thereof, of any Person.
"CAPITAL EXPENDITURE" means, with respect to any Person, all
expenditures made and liabilities incurred for the acquisition of assets (other
than assets which constitute a Business Unit) which are not, in accordance with
GAAP, treated as expense items for such Person in the year made or incurred or
as a prepaid expense applicable to a future year or years.
"COLLATERAL" means and includes all of each Borrower's right,
title and interest in and to each of the following, wherever located and whether
now or hereafter existing or now owned or hereafter acquired or arising:
(a) all Receivables;
(b) all Inventory;
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(c) all Equipment;
(d) all Contract Rights;
(e) all General Intangibles;
(f) all Deposit Accounts;
(g) all Real Estate;
(h) all goods and other property, whether or not delivered, (i)
the sale or lease of which gives or purports to give rise to any Receivable,
including, but not limited to, all merchandise returned or rejected by or
repossessed from customers, or (ii) securing any Receivable, including, without
limitation, all rights of an unpaid vendor or lienor (including, without
limitation, stoppage in transit, replevin and reclamation) with respect to such
goods and other properties,
(i) all mortgages, deeds to secure debt and deeds of trust on
real or personal property, guaranties, leases, security agreements and other
agreements and property which secure or relate to any Receivable or other
Collateral or are acquired for the purpose of securing and enforcing any item
thereof,
(j) all documents of title, policies and certificates of
insurance, securities, chattel paper and other documents and instruments
evidencing or pertaining to any and all items of Collateral,
(k) all files, correspondence, computer programs, tapes, disks
and related data processing software which contain information identifying or
pertaining to any of the Collateral or any Account Debtor or showing the amounts
thereof or payments thereon or otherwise necessary or helpful in the realization
thereon or the collection thereof,
(l) all cash deposited with the Bank or any Affiliate thereof or
which the Bank is entitled to retain or other possess as collateral pursuant to
the provisions of this Agreement or any of the Documents; and
(m) any and all products and cash and non-cash Proceeds of the
foregoing (including, but not limited to, any claims to any items referred to in
this definition and any claims against third parties for loss of, damage to or
destruction of any or all of the Collateral or for proceeds payable under or
unearned premiums with respect to policies of insurance) in whatever form,
including, but not limited to, cash, negotiable instruments and other
instruments for the payment of money, chattel paper, security agreement and
other documents.
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"COLLATERAL VALUE" shall mean the value of the Collateral, from
time to time, as determined in accordance with the provisions of Section 5.3 of
this Agreement.
"COMMERCIAL LETTER OF CREDIT" shall mean a Commercial Letter of
Credit issued for the account of the Borrowers by the Bank to a designated
beneficiary, which is supplying goods or services to ASI in connection with the
export of services or goods by ASI, upon receipt of an executed Application and
Agreement for Commercial Letter of Credit, which Commercial Letter of Credit
shall be issued subject to the UCP, shall be payable in Dollars and shall be in
form and content satisfactory to the Bank in all respects.
"COMMITMENT" shall mean the commitment of the Bank to extend to
or issue for the account of the Borrowers, as the case may be, the Loan and the
Letters of Credit in accordance with the terms and conditions of this Agreement,
the outstanding Borrowers' Obligations with respect to which shall not exceed
United States Six Million Dollars (U.S. $6,000,000) in the aggregate at any one
time outstanding.
"COMMITMENT PERIOD" shall mean the period during which the
Commitment will be available to be accessed by ASI, which period begins on the
Effective Date, provided all conditions precedent contained in Article VII
hereof have been satisfied, and ends on the Termination Date.
"CONTRACT RIGHTS" means and includes, as to any Person, all of
such Person's then owned or existing and future acquired or arising rights under
contracts not yet earned by performance and not evidenced by an instrument or
chattel paper, to the extent that the same may lawfully be assigned.
"CURRENT RATIO" means the ratio of Borrowers' current Assets to
Borrowers' current Liabilities measured at any given time.
"DEBT SERVICE COVERAGE RATIO" means with respect to any period,
the ratio of (i) Net Income (excluding any after-tax gains or losses on the sale
of assets, (other than the sale of Inventory in the ordinary course of business)
and excluding other after-tax extraordinary gains or losses), PLUS interest
expense, PLUS depreciation and amortization deducted in determining Net Income
for such period, OVER (ii) current principal maturities of long term debt
(including without limitation all Subordinated Debt) and Capitalized Lease
Obligations (including without limitation all payments by the Borrowers under
the Bond Documents as defined in the documents relating to the Domestic
Financing) paid or scheduled to be paid during such period, PLUS interest
expense.
"DEFAULT" shall mean any of the events specified in SECTION 11.1
hereof, whether or not any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
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"DEPOSIT ACCOUNTS" means any demand, time, savings, passbook or
like account maintained with a bank, savings and loan association, credit union
or like organization, other than an account evidenced by a certificate of
deposit that is an instrument under the UCC.
"DOLLARS" and the sign "$" shall mean dollars in lawful money of
the United States of America and, in relation to all payments in Dollars
hereunder, shall mean same day or immediately available funds.
"DOMESTIC INVENTORY" shall mean all Inventory other than Export
Inventory.
"DOMESTIC FINANCING" shall mean the line of credit, letters of
credit and term loan facilities extended by the Bank to the Borrowers for the
purpose of refinancing certain existing debt and financing the Borrowers'
domestic working capital requirements, which line of credit is evidenced and
secured by a Loan and Security Agreement of even date herewith by and among the
Borrowers and the Bank and the other Loan Documents described therein.
"DOMESTIC RECEIVABLES" shall mean Receivables, the Account
Debtor with respect to which is a U.S. Person.
"EBITDA" means, with respect to any period, Net Income (or Net
Loss) plus interest expense, income tax expense, depreciation and amortization
for such period determined by GAAP.
"ERISA" means the Employee Retirement Income Security Act of
1974, as in effect from time to time, and any successor statute.
"EFFECTIVE DATE" shall mean the later of (a) the date on which
this Agreement shall have been executed and delivered by the parties hereto and
(b) the first date on which all of the conditions precedent set forth in SECTION
7.1 shall have been satisfied in full or waived by the Bank.
"ENVIRONMENTAL LAWS" means all federal, state local and foreign
laws now or hereafter in effect relating to pollution or protection of the
environment, including laws relating to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals or industrial, toxic
or hazardous substances or wastes into the environment (including, without
limitation, ambient air, surface water, ground water or land) or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, removal, transport or handling of pollutants, contaminants, chemicals
or industrial, toxic or hazardous substances or wastes, and any and all
regulations, notices or demand letters issued, entered, promulgated or approved
thereunder.
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"EQUIPMENT" means and includes, as to any Person, all of such
Person's then owned or existing and future acquired or arising machinery,
apparatus, equipment, motor vehicles, tractors, trailers, rolling stock,
fittings, and other tangible personal property (other than inventory) of every
kind and description used in such Person's business operations or owned by such
Person or in which such Person has an interest and all parts, accessories and
special tools and all increases and accessions thereto and substitutions and
replacements therefor.
"EVENT OF DEFAULT" shall mean any of the events specified in
SECTION 11.1 hereof, provided that any requirement for the giving of notice, the
lapse of time, or both, or any other condition, has been satisfied.
"EXPORT INVENTORY" shall mean Inventory which is specifically
designated for sale to a non-U.S. Person. To the extent that it is not possible
to distinguish between Domestic Inventory and Export Inventory, 75% of the
Inventory of ASI shall be deemed to be Export Inventory and 25% of Inventory of
ASI shall be deemed to be Domestic Inventory.
"EXPORT RECEIVABLES" shall mean Receivables the Account Debtor
with respect to which is a non-U.S. Person.
"EXIMBANK" shall mean the Export-Import Bank of the United
States, an agency of the government of the United States, its successors and
assigns.
"EXIMBANK BORROWER AGREEMENT" shall mean the Borrower Agreement
of even date herewith executed by the Borrowers in favor of EXIMBANK and
acknowledged by the Bank, which is required by EXIMBANK as a condition to the
EXIMBANK Guaranty.
"EXIMBANK GUARANTY" shall mean EXIMBANK Master Guarantee
Agreement between the Bank and EXIMBANK, together with the Delegated Authority
Letter Agreement between the Bank and EXIMBANK, pursuant to which EXIMBANK has
guaranteed to the Bank a portion of the Borrowers' Obligations, as provided
therein.
"FINANCING DOCUMENTS" shall mean, collectively, the Bank
Commitment Letter, this Agreement, all Applications and Agreements for Standby
Letters of Credit and Standby Letters of Credit issued pursuant thereto, all
Applications and Agreements for Commercial Letters of Credit and Commercial
Letters of Credit issued pursuant thereto, the Promissory Note, the EXIMBANK
Borrower Agreement, the EXIMBANK Guaranty, the Subordination Agreements and any
other documents, certificates and agreements which are hereafter executed and
delivered by the Borrower or any other Person in connection with any of the
Borrowers' Obligations.
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"FIXED CHARGES" means, for any period, (a) Interest Expense, plus
(b) payments of principal actually made with respect to Indebtedness, including
payments with respect to Capitalized Leases.
"FUNDED DEBT RATIO" means Indebtedness for Money Borrowed (but
specifically excluding Subordinated Debt) PLUS outstanding letters of credit
over EBITDA.
"GAAP" means generally accepted principles consistently applied
and maintained throughout the period indicated and consistent with the prior
financial practice of the Person referred to.
"GENERAL INTANGIBLES" means, as to any Person, all of such
Person's then owned or existing and future acquired or arising general
intangibles, choses in action and causes of action and all other intangible
personal property of such Person of every kind and nature (other than
Receivables), including, without limitation, Intellectual Property, corporate or
other business records, inventions, designs, blueprints, plans, specifications,
trade secrets, goodwill, computer software, customer lists, registrations,
licenses, franchises, tax refund claims, reversions or any rights thereto and
any other amounts payable to such Person from any Benefit Plan, Multiemployer
Plan or other employee benefit plan, rights and claims against carriers and
shippers, rights to indemnification, business interruption insurance and
proceeds thereof, property, casualty or any similar type of insurance and any
proceeds thereof, proceeds of insurance covering the lives of key employees on
which such Person is beneficiary and any letter of credit, guarantee, claims,
security interest or other security held by or granted to such Person to secure
payment by an Account Debtor of any of the Receivables.
"GOVERNMENTAL APPROVALS" means all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings with, and
reports to, all governmental bodies, whether federal, state, local foreign
national or provincial, and all agencies thereof.
"GOVERNMENTAL AUTHORITY OR AUTHORITIES" shall mean any
governmental or quasi-governmental entity, court or tribunal including, without
limitation, any department, commission, board, bureau, agency, administration,
service or other instrumentality of any foreign or domestic governmental entity,
but excluding EXIMBANK.
"GUARANTY", "GUARANTEED" or to "GUARANTEE," as applied to any
obligation of another Person shall mean and include:
(a) a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), directly or
indirectly, in any manner, of any part or all of such obligation of such other
Person, and
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(b) an agreement, direct or indirect, contingent or otherwise,
and whether or not constituting a guaranty, the practical effect of which is to
assure the payment or performance (or payment of damage in the event of
nonperformance) of any part or all of such obligation of such other Person
whether by (i) the purchase of securities or obligations, (ii) the purchase,
sale or lease (as lessee or lessor) of property or the purchase or sale of
services primarily for the purpose of enabling the obligor with respect to such
obligation to make any payment or performance (or payment of damages in the
event of nonperformance) of or on account of any part or all of such obligation
or to assure the owner of such obligation against loss, (iii) supplying of funds
to, or in any other manner investing in, the obligor with respect to such
obligation, (iv) repayment of amounts drawn down by beneficiaries of letters of
credit, or (v) the supplying of funds to or investing in a Person on account of
all or any part of such Person's obligation under a guaranty of any obligation
or indemnifying or holding harmless, in any way, such Person against any part or
all of such obligation.
"ISP" shall mean the International Standby Practices - ISP98,
International Chamber of Commerce Publication No. 590, and any amendments and
revisions thereof.
"INDEBTEDNESS" of any Person means, without duplication, (a)
Liabilities, (b) all obligations for Money Borrowed or for the deferred purchase
price of property or services or in respect of reimbursement obligations under
letters of credit, (c) all obligations represented by bonds, debentures, notes
and accepted drafts that represent extensions of credit, (d) Capitalized Lease
Obligations, (e) all obligations (including, during the noncancellable term of
any lease in the nature of a title retention agreement, all future payment
obligations under such lease discounted to their present value in accordance
with GAAP) secured by any Lien to which any property or asset owned or held by
such Person is subject, whether or not the obligation secured thereby shall have
been assumed by such Person, (f) all obligations of other Persons which such
Person has Guaranteed, including, but not limited to, all obligations of such
Person consisting of recourse liability with respect to accounts receivable sold
or otherwise disposed of by such Person, and (g) in the case of the Borrowers
(without duplication) the Loans.
"INTELLECTUAL PROPERTY" means, as to any Person, all of such
Person's then owned existing and future acquired or arising patents, patent
rights, copyrights, works which are the subject of copyrights, trademarks,
service marks, trade names, trade styles, patent, trademark and service mark
applications, and all licenses and rights related to any of the foregoing and
all other rights under any of the foregoing, all extensions, renewals, reissues,
divisions, continuations and continuations-in-part of any of the foregoing and
all rights to sue for past, present and future infringements of any of the
foregoing.
"INTEREST EXPENSE" means interest on Indebtedness during the
period for which computation is being made, excluding (a) the amortization of
fees and costs
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incurred with respect to the closing of loans which have been capitalized as
transaction costs, and (b) interest paid in kind.
"INTEREST RATE PROTECTION AGREEMENT" means (a) any and all rate
swap transactions, basis swaps, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, or any other similar transactions or any
combination of any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by or subject to
any master agreement, or (b) any and all transactions of any kind, and the
related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps
and Derivatives Associations, Inc., or any other master agreement (any such
master agreement, together with any related schedules, as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, a
"Master Agreement"), including but not limited to any such obligations or
liabilities under any Master Agreement.
"INVENTORY" means and includes, as to any Person, all of such
Person's then owned or existing and future acquired or arising (a) goods
intended for sale or lease or for display or demonstration, (b) work in process,
(c) raw materials and other materials and supplies of every nature and
description used or which might be used in connection with the manufacture,
packing, shipping, advertising, selling, leasing or furnishing of goods or
otherwise used or consumed in the conduct of business, and (d) documents
evidencing and general intangibles relating to any of the foregoing.
"INVESTMENT" means, with respect to any Person: (a) the direct or
indirect purchase or acquisition of any beneficial interest in, any share of
capital stock of, evidence of Indebtedness of or other security issued by any
other Person, (b) any loan, advance or extension of credit to, or contribution
to the capital of, any other Person, excluding advances to employees in the
ordinary course of business for business expenses, (c) any Guaranty of the
obligations of any other Person, or (d) any commitment or option to take any of
the actions described in clauses (a), (b) or (c) above.
"LETTER OF CREDIT" shall mean either a Commercial Letter of
Credit or a Standby Letter of Credit.
"LETTER OF CREDIT OBLIGATIONS" shall mean, in respect of each
Standby Letter of Credit and each Commercial Letter of Credit, as the case may
be, the obligation of the Borrowers to pay to the Bank all sums required to be
paid by the terms of the related Application and Agreement for Standby Letter of
Credit or Application and
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Agreement for Commercial Letter of Credit and any related Borrowers' Obligations
described by the terms of this Agreement.
"LIABILITIES" means all liabilities of a Person determined in
accordance with GAAP and includable on a balance sheet of such Person prepared
in accordance with GAAP, including without limitation, the obligations of the
Borrowers under the Bond Documents (as defined in the documents relating to the
Domestic Financing).
"LIABILITIES RATIO" means Liabilities PLUS outstanding letters of
credit LESS Subordinated Debt OVER Tangible Net Worth. For purposes of this
definition, the obligations of the Borrowers under the Bond Documents will not
be "double counted" with the Bond Letter of Credit Obligations (as such terms
are defined in the documents relating to the Domestic Financing.
"LIEN" shall mean any mortgage, security deed or deed of trust,
pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim,
security interest, security title, easement or encumbrance, or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever, including (without limitation) any lease or title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing and any security interest under the UCC or comparable law
of any jurisdiction.
"LOAN" shall mean the direct loan advances to be made available
by the Bank to ASI in accordance with the provisions of ARTICLE II of this
Agreement.
"LOAN OBLIGATIONS" shall mean the obligation of the Borrowers to
repay to the Bank the principal amount of the Loan, together with interest
thereon, in accordance with the terms of the Promissory Note, and any related
Borrowers' Obligations described by the terms of this Agreement and the
Promissory Note.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on
(a) the business, assets, operations, prospects or financial or other condition
of any Borrower or any Guarantor, (b) the Borrowers' ability to pay and perform
the Borrowers' Obligations in accordance with the terms of this Agreement and
the other Financing Documents, (c) the Collateral, the Bank's Lien on the
Collateral or the priority of the Bank's Lien on the Collateral, or (d) the
Bank's rights and remedies under this Agreement or any of the other Financing
Documents.
"MONEY BORROWED" means, as applied to Indebtedness, (a)
Indebtedness for money borrowed, (b) Indebtedness, whether or not in any such
case the same was for money borrowed, (i) represented by notes payable and
drafts accepted, that represent extensions of credit, (ii) constituting
obligations evidenced by bonds, debentures, notes or similar instruments, or
(iii) upon which interest charges are customarily paid (other than trade
Indebtedness) or that was issued or assumed as full or partial payment for
property,
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(c) Indebtedness that constitutes a Capitalized Lease Obligation, and
(d) Indebtedness that is such by virtue of clause (f) of the definition thereof,
but only to the extent that the obligations Guaranteed are obligations that
would constitute Indebtedness for Money Borrowed.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which either Borrower or a Related Company is
required to contribute or has contributed within the immediately preceding 6
years.
"NET INCOME" or "NET LOSS" means, as applied to any Person, the
net income (or net loss) of such Person for the period in question after giving
effect to deduction of or provision for all operating expenses, all taxes and
reserves (including reserves for deferred taxes and all other proper
deductions), all determined in accordance with GAAP.
"NET WORTH" of any Person means the total shareholders' equity
(including Subordinated Indebtedness, capital stock, additional paid-in capital
and retained earnings, after deducting treasury stock) which would appear as
such on a balance sheet of such Person prepared in accordance with GAAP.
"OPERATING LEASE" means any lease (other than a lease
constituting a Capitalized Lease Obligation) of real or personal property.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor agency.
"PERMITTED INDEBTEDNESS FOR MONEY BORROWED" means (a) Permitted
Purchase Money Indebtedness, and (b) Subordinated Indebtedness.
"PERMITTED INVESTMENTS" means Investments of the Borrowers in:
(a) negotiable certificates of deposit, time deposits and banker's acceptances
issued by the Bank or any Affiliate of the Bank or by any United States bank or
trust company having capital, surplus and undivided profits in excess of
$250,000,000, (b) any direct obligation of the United States of America or any
agency or instrumentality thereof which has a remaining maturity at the time of
purchase of not more than one year and repurchase agreements relating to the
same, (c) sales on credit in the ordinary course of business on terms customary
in the industry, and (d) notes, accepted in the ordinary course of business,
evidencing overdue accounts receivable arising in the ordinary course of
business.
"PERMITTED LIENS" shall mean, with respect to a Borrower, (a)
Liens for taxes, assessments or other governmental charges or levies not
delinquent, or being contested in good faith and by appropriate proceedings and
with respect to which proper reserves have been taken by such Borrower;
PROVIDED, THAT, the Lien shall have no effect
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on the priority of the Liens in favor of the Bank or the value of the assets in
which the Bank has such a Lien and a stay of enforcement of any such Lien shall
be in effect; (b) deposits or pledges securing obligations under worker's
compensation, unemployment insurance, social security or public liability laws
or similar legislation; (c) deposits or pledges securing bids, tenders,
contracts (other than contracts for the payment of money), leases, statutory
obligations, surety and appeal bonds and other obligations of like nature
arising in the ordinary course of such Borrower's business; (d) judgment Liens
that have been stayed or bonded or in respect of which the Borrowers are fully
protected by insurance (subject to a reasonable deductible); (e) mechanics',
workers', materialmen's or other like Liens arising in the ordinary course of
Borrower's business with respect to obligations which are not due; (f) Liens
placed upon fixed assets hereafter acquired to secure a portion of the purchase
price thereof, provided, that, any such Lien shall not encumber any other
property of Borrower; (g) security interests being terminated concurrently with
the execution of the Financing Documents; (h) Liens specifically described in
and created by the Bond Documents (as defined in the documents relating to the
Domestic Financing); (i) Liens in favor of the Bank securing the Borrowers'
Obligations; (j) Liens in favor of the Bank securing the Domestic Financing and
(k) subordinated liens with respect to the Subordinated Indebtedness (as defined
in the documents relating to the Domestic Financing).
"PERMITTED OVERADVANCES" shall mean Loan advances made to ASI or
Letters of Credit issued for the account of the Borrowers in an aggregate amount
which would cause the Collateral Value to be exceeded, provided that (i) the
aggregate amount of such Permitted Overadvances does not exceed five percent
(5%) of the Commitment; (ii) the aggregate amount of all outstanding Borrowers'
Obligations including Borrowers' Obligations in respect of Permitted
Overadvances does not exceed the Commitment; and (iii) such Permitted
Overadvances are not outstanding for more than ninety (90) consecutive days.
"PERMITTED PURCHASE MONEY INDEBTEDNESS" means Purchase Money
Indebtedness secured only by Purchase Money Liens and Capitalized Lease
Obligations, incurred by the Borrower after the Agreement Date, up to an
aggregate amount outstanding at any time equal to $50,000.
"PERSON" shall mean an individual, a partnership, a corporation,
a trust, any other organization or entity or any government or governmental body
or authority.
"PRIME RATE" means during the period from the Effective Date
through the last day of the month in which the Effective Date falls, the per
annum rate of interest publicly announced by the Bank at its principal office as
its "prime rate" as in effect on the Effective Date, and thereafter during each
succeeding calendar month, means such "prime rate' as in effect on the last
Business Day of the immediately preceding calendar month. Any change in an
interest rate resulting from a change in the Prime Rate shall become effective
as of 12:01 a.m. on the first day of the month following the month in
13
which such change was announced. The Prime Rate is a reference used by the Bank
in determining interest rates on certain loans and is not intended to be the
lowest rate of interest charged on any extension of credit to any debtor.
"PROCEEDS" or "PROCEEDS" means, when used with respect to any of
the Collateral, all cash and non-cash proceeds within the meaning of the UCC and
shall include the proceeds of any and all insurance policies.
"PROCEEDS OF THE EXPORT RECEIVABLES AND EXPORT INVENTORY" shall
mean all cash and non-cash proceeds of the Borrowers' Export Receivables and
Export Inventory, all of which constitute part of the Collateral.
"PROMISSORY NOTE" shall mean the Promissory Note of even date
herewith executed by the Borrowers in favor of the Bank and containing the terms
and conditions under which the principal amount of the Loan, together with
interest thereon, will be repaid, as the same may from time to time be amended,
supplemented or otherwise modified in accordance with the terms thereof and of
this Agreement.
"PURCHASE MONEY INDEBTEDNESS" means Indebtedness created to
finance the payment of all or any part of the purchase price (not in excess of
the fair market value thereof) of any tangible asset (other than Inventory) and
incurred at the time of or within 10 days prior to or after the acquisition of
such tangible asset.
"PURCHASE MONEY LIEN" means any Lien securing Purchase Money
Indebtedness, but only if such Lien shall at all times be confined solely to the
tangible asset (other than Inventory) the purchase price of which was financed
through the incurrence of the Purchase Money Indebtedness secured by such Lien.
"RECEIVABLES" means and includes, as to any Person, all of such
Person's then owned or existing and future acquired or arising (a) rights to the
payment of money or other forms of consideration of any kind (whether classified
under the UCC as accounts, contract rights, chattel paper, general intangibles
or otherwise) including, but not limited to, accounts receivable, letters of
credit and the right to receive payment thereunder, chattel paper, tax refunds,
insurance proceeds, Contract Rights, notes, drafts, instruments, documents,
acceptances and all other debts, obligations and liabilities in whatever form
from any Person and guaranties, security and liens securing payment thereof, (b)
goods, whether now owned or hereafter acquired, and whether sold, delivered,
undelivered, in transit or returned, which may be represented by, or the sale or
lease of which may have given rise to , any such right to payment or other debt,
obligation or liability, and (c) cash and non-cash proceeds of any of the
foregoing.
"RELATED COMPANY" means, as to any Person, any (a) corporation
which is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as such Person, (b) partnership or other
trade or business (whether or
14
not incorporated under common control (within the meaning of Section 414(c) of
the Code) with such Person, or (c) member of the same affiliated service group
(within the meaning of Section 414(m) of the Code) as such Person or any
corporation described in clause (a) above or any partnership, trade or business
described in clause (b) above.
"RESTRICTED DISTRIBUTION" by any Person means (a) its retirement,
redemption, purchase, or other acquisition for value of any capital stock or
other equity securities or partnership interests issued by such Person, (b) the
declaration or payment of any dividend or distribution on or with respect to any
such securities or partnership interests, (c) any loan or advance by such Person
to, or other investment by such Person in, the holder of any of such securities
or partnership interests, and (d) any other payment by such Person in respect of
such securities or partnership interests.
"RESTRICTED PAYMENT" means (a) any redemption, repurchase or
prepayment or other retirement, prior to the stated maturity thereof or prior to
the due date of any regularly scheduled installment or amortization payment with
respect thereto, of any Indebtedness of a Person (other than the Borrowers'
Obligations, the Borrowers' Obligations in respect of the Domestic Financing and
trade debt), and (b) the payment by any Person of the principal amount of or
interest on any Indebtedness (other than trade debt) owing to an Affiliate of
such Person.
"STANDBY LETTER OF CREDIT" shall mean a Standby Letter of Credit
issued for the account of the Borrowers by the Bank to a designated beneficiary,
which beneficiary shall be entitled to make a drawing thereunder only if ASI
fails to perform all of its obligations with respect to an export purchase
order, upon receipt of an executed Application and Agreement for Standby Letter
of Credit, which Standby Letter of Credit shall be issued subject to the ISP or
the UCP and shall be in form and content satisfactory to the Bank in all
respects.
"SUBORDINATION AGREEMENTS" shall mean, collectively, the
Subordination Agreements described in Schedule 1.1.
"SUBSIDIARY" when used to determine the relationship of a Person
to another Person, means a Person of which an aggregate of 50% or more of the
stock of any class or classes or 50% or more of other ownership interests is
owned of record or beneficially by such other Person or by one or more
Subsidiaries of such other Person or by such other Person and one or more
Subsidiaries of such Person, (i) if the holders of such stock or other ownership
interests (A) are ordinarily, in the absence of contingencies, entitled to vote
for the election of a majority of the directors (or other individuals performing
similar functions) of such Person, even though the right so to vote has been
suspended by the happening of such a contingency, or (B) are entitled, as such
holders, to vote for the election of a majority of the directors (or individuals
performing similar functions) of such Person, whether or not the right so to
vote exists by reason of
15
the happening of a contingency, or (ii) in the case of such other ownership
interests, if such ownership interests constitute a majority voting interest.
"TANGIBLE NET WORTH" means, as applied to any Person, the Net
Worth of such Person at the time in question, after deducting therefrom the
amount of all intangible items reflected therein, including all unamortized debt
discount and expense, unamortized research and development expense, unamortized
deferred charges, goodwill, Intellectual Property, unamortized excess cost of
investment in Subsidiaries over equity at dates of acquisition, and all similar
items which should properly be treated as intangibles in accordance with GAAP
PLUS Subordinated Indebtedness.
"TERMINATION DATE" shall mean August 7, 2001 (unless such date is
not a Business Day, in which case the Termination Date shall be the next
succeeding Business Day), unless the Termination Date is otherwise accelerated
in accordance with SECTION 11.2 hereof, or unless the Termination Date is
extended in the sole and absolute discretion of the Bank.
"TERMINATION EVENT" means with respect to any Benefit Plan
subject to Title IV of ERISA, (a) a "Reportable Event" as defined in Section
4043(b) of ERISA, but excluding any such event as to which the provision for 30
days' notice to the PBGC is waived under applicable regulations, (b) the filing
of a notice of intent to terminate a Benefit Plan or the treatment of a Benefit
Plan amendment as a termination under Section 4041 of ERISA, or (c) the
institution of proceedings to terminate a Benefit Plan by the PBGC under Section
4042 of ERISA or the appointment of a trustee to administer any Benefit Plan.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the State of Kansas.
"UCP" shall mean the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500
and any amendments and revisions thereof.
"UNFUNDED CAPITAL EXPENDITURES" means Capital Expenditures which
are paid for by a Person other than with the proceeds of Indebtedness for Money
Borrowed (other than the Loans) incurred to finance such Capital Expenditures
and other than those represented by Capitalized Lease Obligations.
"UNFUNDED VESTED ACCRUED BENEFITS" means, with respect to any
Benefit Plan subject to Title IV of ERISA, at any time, the amount (if any) by
which (a) the present value of all vested nonforfeitable benefits under such
Benefit Plan exceeds (b) the fair market value of all Benefit Plan assets
allocable to such benefits, as determined using reasonable actuarial assumptions
and methods as are specified in the Schedule B
16
(Actuarial Information) to the most recent Annual Report (Form 5500) filed with
respect to such Benefit )Plan.
"U.S. PERSON" shall mean any Person which is a Governmental
Authority or personal or corporate resident of the United States.
"UTILIZED PORTION OF THE COMMITMENT" shall mean the sum of (a)
all outstanding advances of the Loan, (b) all amounts which have been drawn and
not reimbursed by the beneficiaries of all Letters of Credit, and (c) 25% of all
amounts which are then available to be drawn by the beneficiaries of all Letters
of Credit.
"WARRANTY LETTER OF CREDIT" shall mean a Standby Letter of Credit
which is issued by the Bank to secure the obligations of ASI to guarantee to the
Account Debtor that goods or services will function as intended for a specified
period.
1.2 OTHER REFERENTIAL PROVISIONS.
(a) All terms in this Agreement, the Exhibits and Schedules
hereto shall have the same defined meanings when used in any other Financing
Documents, unless the context shall required otherwise.
(b) Except as otherwise expressly provided herein, all accounting
terms not specifically defined or specified herein shall have the meanings
generally attributed to such terms under GAAP including, without limitation,
applicable statements and interpretations issued by the Financial Accounting
Standards Board and bulletins, opinions, interpretations and statements issued
by the American Institute of Certified Public Accountants or its committees.
(c) All personal pronouns used in this Agreement, whether used in
the masculine, feminine or neuter gender, shall include all other genders, the
singular shall include the plural, and the plural shall include the singular.
(d) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provisions of this Agreement.
(e) Titles of Articles and Sections in this Agreement are for
convenience only, do not constitute part of this Agreement and neither limit nor
amplify the provisions of this Agreement, and all references in this Agreement
to Articles, Sections, Subsections, paragraphs, clauses, subclauses, Schedules
or Exhibits shall refer to the corresponding Article, Section, Subsection,
paragraph, clause or subclause of, or Schedule or Exhibit attached to, this
Agreement, unless specific reference is made to the articles, sections or other
subdivisions or divisions of, or to schedules or exhibits to, another document
or instrument.
17
(f) Each definition of a document in this Agreement shall include
such document as amended, modified, supplemented or restated from time to time
in accordance with the terms of this Agreement.
(g) Except where specifically restricted, reference to a party to
a Financing Document includes that party and its successors and assigns
permitted hereunder or under such Financing Document.
(h) Unless otherwise specifically stated, whenever a time is
referred to in this Agreement or in any other Financing Documents, such time
shall be the local time in Kansas City, Missouri.
(i) Whenever the phrase "to the knowledge of the Borrowers" or
words of similar import relating to the knowledge of the Borrowers are used
herein, such phrase shall mean and refer to (i) the actual knowledge of the
President or chief financial officer or (ii) the knowledge that such officers
would have obtained if they had engaged in good faith in the diligent
performance of their duties, including the making of such reasonable specific
inquiries as may be necessary of the appropriate persons in a good faith attempt
to ascertain the accuracy of the matter to which such phrase relates.
(j) The terms accounts, chattel paper, documents, equipment,
instruments, general intangibles and inventory, as and when used (without being
capitalized) in this Agreement or the Financing Documents, shall have the
meanings given in the UCC.
ARTICLE II
THE LOAN
2.1 ADVANCES OF THE LOAN. Subject to the provisions of this Agreement,
including the satisfaction of the conditions precedent described in ARTICLE VII
hereof, the Bank agrees to make advances of the Loan in Dollars to ASI from time
to time during the Commitment Period, in amounts not to exceed the then
Available Commitment. Advances of the Loan will be made by the Bank either to
fund the reimbursement of drawings under a Letter of Credit which has been
issued pursuant to the Commitment or to fund working capital requirements by
direct deposit to the Borrowers' Account. Advances will be made against the
written request of ASI signed by an Authorized Borrowers' Representative which
will be funded on the same Business Day if received by 1:30 p.m. (prevailing
eastern standard time) or on the next Business Day if received after such time.
In order to fund a Loan advance, the Lender must have received a Borrowing Base
Certificate which shall be current within the last 30 days and all of the
supporting documentation required by Section 8.1(g) of this Agreement. The Bank
will not make any advance of the Loan (other than advances to fund the
reimbursement of drawings
18
under a Letter of Credit which has been issued pursuant to the Commitment)
during any period of time in which it has actual knowledge that ASI has no
export purchase orders outstanding.
2.2 REPAYMENT OF ADVANCES OF THE LOAN. Each advance of the Loan, together
with interest thereon, shall be repaid, and may be prepaid, in accordance with
the provisions of the Promissory Note; provided, however, that the Borrowers'
Loan Obligations must be prepaid to the extent that ASI or the Bank receive any
Proceeds of the Export Receivables and Export Inventory. Amounts which are
advanced under the Loan and repaid by the Borrower shall thereafter be available
to be readvanced to ASI under the Loan, in accordance with the terms of this
Agreement, at any time prior to the Termination Date.
ARTICLE III
THE LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT. Subject to the provisions of this
Agreement, including the satisfaction of the conditions precedent described in
ARTICLE VII hereof, the Bank agrees to issue from time to time during the
Commitment Period, Letters of Credit to beneficiaries designated by ASI, in
stated amounts denominated in Dollars, not to exceed the then Available
Commitment. Unless the Borrowers obtain the prior approval of the Bank and
EXIMBANK or unless the Borrowers are obligated to prepay all of their Letter of
Credit Obligations relating to any such Letter of Credit on the day immediately
preceding the Termination Date, (a) no Letter of Credit shall have an Expiry
Date which is later than 12 calendar months from its date of issuance, and (b)
no Letter of Credit which is issued within 60 days of the Termination Date shall
have an Expiry Date after the Termination Date. Letters of Credit will be issued
by the Bank as soon as practicable following receipt of a completed Application
and Agreement for Commercial Letter of Credit or Application and Agreement for
Standby Letter of Credit, as appropriate and in either case executed by an
Authorized Borrower Representative. In order to issue a Letter of Credit, the
Bank must have received a Borrowing Base Certificate which shall be current
within the last 30 days and all of the supporting documentation required by
Section 8.1(g) of this Agreement.
Each Application and Agreement for Standby Letter of Credit must be
accompanied by a copy of the export contract bid, the performance or advance
payment under which is to be secured by the related Standby Letter of Credit.
The Bank will not issue any Letter of Credit during any period of time in which
it has actual knowledge that ASI has no export purchase orders outstanding. No
Warranty Letter of Credit may be issued under this Agreement, unless
specifically approved by EXIMBANK.
3.2 REIMBURSEMENT OF DRAWINGS UNDER LETTERS OF CREDIT. The Borrowers'
Letter of Credit Obligations in respect of each Letter of Credit, including
(without
19
limitation) the Borrowers' obligation to reimburse the Bank for all drawings
honored under such Letter of Credit, together with any interest thereon, shall
be set forth in the related Application and Agreement for Letter of Credit.
3.3 INCORPORATION OF APPLICATIONS AND AGREEMENTS FOR LETTERS OF CREDIT.
The terms of each Application and Agreement for Letter of Credit are
incorporated herein by reference. To the extent that there is any direct
conflict between the terms of any Application and Agreement for Letter of Credit
and this Agreement, the terms of this Agreement will prevail, except to the
extent of (a) definitions contained in any Application and Agreement for Letter
of Credit or (b) any provision contained in any Application and Agreement for
Letter of Credit which subjects the Letter of Credit issued pursuant thereto to
the UCP or ISP.
3.4 PREPAYMENT OF LETTER OF CREDIT OBLIGATIONS.
(a) Letter of Credit Obligations may be prepaid by the Borrowers,
in whole but not in part for any one Letter of Credit, at any time, without
premium or penalty.
(b) Unless the remaining Collateral Value continues to support
the then outstanding Borrowers' Obligations, the Borrowers' Letter of Credit
Obligations must be prepaid (by the deposit of cash collateral) to the extent
that the ASI or the Bank receive any Proceeds of the Export Receivables and
Export Inventory in excess of the Borrower's Loan Obligations.
(c) Letter of Credit Obligations relating to Letters of Credit
which exceed the parameters of Section 3.1 of this Agreement must be prepaid in
full on the day immediately preceding the Termination Date or required Expiry
Date, as the case may be, as this date may be accelerated in accordance with
SECTION 11.2 hereof or extended in the sole and absolute discretion of the Bank
and EXIMBANK.
(d) In the event of any prepayment of Letter of Credit
Obligations, the Borrower shall not be entitled to (i) a rebate of the amount so
prepaid, unless the Letter of Credit to which such prepayment relates expires
without having been drawn by the beneficiary thereof, or (ii) any interest on
the amount so prepaid.
3.5 LETTER OF CREDIT FEES. The Borrower agrees to pay to the Bank an
issuance fee in the amount of one and one-quarter of one percent PER ANNUM
(1.25%) of the stated amount of each Letter of Credit which is issued by the
Bank pursuant to the terms of this Agreement and the related Application and
Agreement for Letter of Credit. In addition, the Borrowers agree to pay the
amendment and negotiation fees customarily charged by the Bank in connection
with the issuance of its Letters of Credit. As described in SECTION 4.4 of this
Agreement, all percentage-based fees shall be calculated on the basis of a
360-day year applied to actual days elapsed.
20
ARTICLE IV
GENERAL CREDIT PROVISIONS
4.1 PAYMENTS.
(a) All payments by the Borrowers under this Agreement and the
other Financing Documents of the Borrowers' Obligations, except as may be
otherwise specifically provided in the Financing Documents, shall be made to the
Bank at its office located at Bank of America, N.A., 1200 One Kansas City Place,
1200 Main Street, Kansas City, Missouri not later than 2:00 P.M., prevailing
time, on the due date for such payment. If any amount payable to the Bank
hereunder by the Borrowers shall not be paid when due or the payment is made in
funds which are not immediately available or any other Event of Default has
occurred and remains in existence, the Borrowers agree to pay to the Bank
interest, to the extent permitted by applicable law, on the entire principal
amount of the Borrowers' Obligations at a rate which is at all times equal to
three percent (3%) PER ANNUM in excess of the then current rate of interest on
the Loan as described in the Promissory Note until such amount shall be paid in
full or until funds are immediately available or other Event of Default is
cured, as the case may be. If any amount payable hereunder shall become due on a
day other than a Business Day, then such due date shall be the next succeeding
Business Day.
(b) All payments to be made hereunder by the Borrowers shall be
made in Dollars, without set-off or counterclaim and free and clear of, and
without deduction for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions, withholdings or
restrictions or conditions of any nature whatsoever now or hereafter imposed,
levied, collected, withheld or assessed against the Borrowers (the "Taxes"). If
any Taxes are imposed and required to be withheld from any such payment, the
Borrowers shall either (i) increase the amount of such payment so that the Bank
will receive a net amount (determined by adding any additional amount payable by
the Borrowers hereunder and then subtracting the amount of all Taxes) equal to
the amount due hereunder, or (ii) pay such Taxes to the appropriate taxing
authority for the account of the Bank, and, as promptly as possible thereafter,
send the Bank an original receipt (or a copy thereof that has been stamped by
the appropriate taxing authority to certify payment) showing payment thereof,
together with such additional documentary evidence as the Bank may from time to
time reasonably require. If the Borrowers fail to perform their obligations to
the Bank under parts (i) or (ii) of the preceding sentence, the Borrowers shall
indemnify the Bank for any such Taxes that are paid by the Bank PLUS all
incremental Taxes, interest or penalties that may become payable as a
consequence of such failure.
4.2 ILLEGALITY. Notwithstanding any other provision of this Agreement, in
the event that it shall become unlawful for the Bank to maintain any aspect of
its
21
Commitment as contemplated by this Agreement, the Commitment of the Bank to
extend the Loan or any Letter of Credit so affected shall be cancelled, and the
Borrowers agree to prepay to the Bank, within two (2) Business Days of receipt
of written demand by the Bank, all of the outstanding Borrowers' Obligations to
which that portion of the Commitment which is terminated as a result of
illegality relates. The Bank agrees that it will take such steps as may be
reasonably available to it to avoid or mitigate any illegality, provided that
the taking of such steps shall not in the opinion of the Bank be materially
prejudicial to it.
4.3 INCREASED COSTS. In the event that any change in applicable
law, treaty, regulation or directive, or in the interpretation or application
thereof, or compliance by the Bank with any request (whether or not having
the force of law) of any relevant central bank or other comparable agency,
shall
(a) subject the Bank to any tax of any kind whatsoever (other
than taxes referred to in SECTION 4.1(B) hereof for which the Bank was
reimbursed by the Borrowers pursuant to the terms of that Section) with respect
to this Agreement or any of the other Financing Documents, any portion of the
Loan or the Letters of Credit or of the Borrowers' Obligations with respect
thereto, or any other transactions contemplated hereby or by the terms of any of
the other Financing Documents, or
(b) change the basis of taxation of payments to the Bank of any
portion of the Borrowers' Obligations, fees, commissions or any other amount
payable under this Agreement or under the other Financing Documents (except for
changes in the rate of tax on the overall net income of the Bank), or
(c) impose, modify or deem applicable any reserve, special
deposit or similar requirement against foreign assets held by, or deposits in or
for the account of, or advances or loans by, or acceptances created by, or any
other acquisition of funds by, any office of the Bank, which reserve, special
deposit or similar requirement is applied to assets such as the Loan or
Borrowers' Obligations or any portion thereof, or
(d) increase the amount of capital required or expected to be
maintained by the Bank, or by any corporation controlling the Bank (a "Parent"),
or reduce the rate of return on capital earned by the Bank or any Parent, (as
determined by the Bank or any Parent taking into consideration their internal
policies with respect to capital adequacy and desired return on capital), which
increased capital or reduced rate of return on capital is applied to assets such
as the Loan or the Letters of Credit or Borrowers' Obligations or any portion
thereof, or
(e) impose upon the Bank any other condition with respect to this
Agreement or the transactions contemplated hereby or by the other Financing
Documents, the result of which is to increase the actual cost to the Bank of
making the Loan or issuing the Letters of Credit under this Agreement or the
other Financing
22
Documents or to reduce any amount receivable by the Bank under this Agreement or
under the other Financing Documents or to increase the capital or reduce the
rate of return on capital which the Bank, or any Parent is required or expected
to maintain as a result of this Agreement, the other Financing Documents, the
Loan or the Letters of Credit, the Borrowers' Obligations, or any portion
thereof,
THEN the Borrowers shall pay to the Bank within thirty (30) days of a written
demand by the Bank, additional amounts which will compensate the Bank or any
Parent so affected, for such increased cost, reduced amount receivable,
increased capital or reduced return on capital, as the case may be. Each such
demand by the Bank shall be accompanied by a certificate setting forth in
reasonable detail (i) the change that gave rise to such increased cost, reduced
amount receivable, increased capital or reduced rate of return on capital, (ii)
the additional amounts payable pursuant to the foregoing sentence, and (iii) a
calculation of such amount, which certificate shall be conclusive absent
manifest error.
Upon the occurrence of any of the foregoing events, the Borrowers shall
have the option, upon not less than five (5) Business Days' prior written notice
to the Bank, to prepay to the Bank all of the then outstanding Borrowers'
Obligations to which such increased costs relate and all other related sums due
by the Borrowers under the terms of this Agreement and the other Financing
Documents, in which event that portion of the Bank's Commitment so affected
shall immediately be cancelled. In the event that the Borrowers elect to prepay
the Borrowers' Obligations in accordance with the preceding sentence, all
provisions herein and in the other Financing Documents regarding prepayment
shall apply and the Borrowers will still be obligated to pay to the Bank the
additional amounts described by this SECTION 4.3 with respect to all periods in
which the affected Borrowers' Obligations remained outstanding.
4.4 COMPUTATIONS. All computations of interest and fees payable pursuant
to the terms of this Agreement or any of the other Financing Documents shall be
made on the basis of a 360-day year applied to actual days elapsed.
4.5 APPLICATION OF PAYMENTS. All payments (including prepayments) made by
the Borrowers in respect of the Borrowers' Obligations shall be applied by the
Bank FIRST to any unpaid costs, fees and expenses due under this Agreement and
the other Financing Documents, SECOND, to the payment of accrued and unpaid
interest, and FINALLY, to the payment of the principal amount of the Borrowers'
Obligations to which such payment pertains.
Notwithstanding any provision contained herein or in any of the other Financing
Documents, all Proceeds of the Export Receivables and Export Inventory which are
received by ASI or the Bank shall immediately be applied FIRST to the prepayment
of the Borrowers' Loan Obligations and THEN, in the event that any Default or
Event of Default has occurred and is continuing or would be caused by virtue of
the outstanding Borrowers' Obligations with respect to the Utilized Portion of
the Commitment
23
exceeding the Collateral Value, to the prepayment (by the deposit of cash
collateral) of the Borrowers' Letter of Credit Obligations, and all other
provisions regarding prepayment which are contained in this Agreement and in the
other Financing Documents shall apply.
4.6 RELIANCE BY BANK ON COMMUNICATIONS AND AUTHORIZATIONS FROM BORROWER.
In making the Loan or in issuing any Letter of Credit pursuant to this Agreement
and the other Financing Documents, the Bank shall be authorized to rely on any
Borrowing Base Certificate, Application and Agreement for Commercial Letter of
Credit, Application and Agreement for Standby Letter of Credit, or other notice
or communication which appears to have been executed and delivered by any one or
more of the authorized officers of ASI who are designated in the certificate
delivered by ASI to the Bank in accordance with Section 7.1(d) hereof (each, an
"Authorized Borrowers' Representative"). In the event that the officer(s)
authorized to deliver such documents or to take action hereunder on behalf of
ASI become unavailable or unable to do so, the President of ASI shall appoint a
successor or successors and shall furnish the Bank with a certificate containing
the specimen signature of each officer so appointed to act on behalf of ASI
pursuant to this Agreement and the other Financing Documents.
4.7 NATURE OF ALL BORROWERS' OBLIGATIONS; RIGHT OF CONTRIBUTION. Whether
or not expressly stated in this Agreement or in the other Financing Documents,
all of the Borrowers' Obligations shall constitute the joint and several
obligations of ASI and DCI.
Each Borrower shall have a right of contribution to obtain reimbursement
from the other Borrower for any payment made by such Borrower in respect of the
Borrowers' Obligations, to the extent that such payment exceeds the benefit
realized by such Borrowers from the Loan and Letters of Credit.
Any right of contribution between Borrowers which arises as a result of
payments made in respect of the Borrowers' Obligations under this Agreement or
any of the other Financing Documents shall be subordinate in all respects to the
Bank's right to receive payment in full of the Borrowers' Obligations.
ARTICLE V
SECURITY
5.1 FINANCING DOCUMENTS. The Borrowers' Obligations to the Bank
in respect of the Loan and the Letters of Credit, if issued, shall be
evidenced and secured by the Financing Documents.
5.2 COLLATERAL. As security and collateral for the repayment of the
Borrowers' Obligations, each Borrower hereby grants to the Bank a lien on and
security interest in all of the Collateral.
24
NOTWITHSTANDING THE FOREGOING GRANT BY EACH BORROWER OF A SECURITY
INTEREST IN ALL OF THE COLLATERAL, IT IS UNDERSTOOD AND AGREED BY THE PARTIES
HERETO THAT THE BANK SHALL HAVE AS SECURITY FOR THE BORROWERS' OBLIGATIONS (A) A
FIRST PRIORITY LIEN ON THE COLLATERAL WHICH IS COMPRISED OF EXPORT RECEIVABLES,
EXPORT INVENTORY AND ALL PROCEEDS THEREOF, INCLUDING ALL MONIES ON DEPOSIT FROM
TIME TO TIME IN THE BORROWERS' ACCOUNT AND (B) A SECOND AND SUBORDINATE LIEN ON
ALL OF THE OTHER COLLATERAL WHICH IS THE SUBJECT TO A FIRST PRIORITY LIEN IN
FAVOR OF THE BANK SECURING THE DOMESTIC FINANCING. THIS AGREEMENT AS TO LIEN
PRIORITY SHALL BE BINDING ON ANY SUCCESSORS AND ASSIGNS OF THE PARTIES,
INCLUDING (WITHOUT LIMITATION) EXIMBANK.
The Borrowers further agree that the Bank shall have in respect of the
Collateral all of the rights and remedies of a secured party under the Uniform
Commercial Code of the State of Kansas and of all other states in which any
portion of the Collateral may be located, as well as those provided in this
Agreement.
5.3 VALUATION OF COLLATERAL. For purposes of determining the amount of the
Available Commitment, from time to time, only eligible Export Receivables and
Export Inventory of ASI have a Collateral Value, as follows:
(a) Export Receivables will be valued at 90% of their outstanding
principal amount from time to time, less the amount of any taxes, discounts,
credits, allowances and retainages; provided that each such Export Receivable
satisfies the following eligibility requirements; provided further, that to the
extent that any Export Receivable fails to satisfy each of the following
eligibility criteria with respect to only a portion of the aggregate amount of
payments due in respect of such Export Receivable, only that portion of the
aggregate amount of payments due which fails to satisfy each of the eligibility
criteria shall be deemed ineligible for purposes of this Agreement:
(i) the repayment obligation represented by the Export
Receivable (A) is related to an export transaction between ASI and the
Account Debtor and (B) either (i) is denominated in United States Dollars,
or (ii) if denominated in a foreign currency, EXIMBANK has given specific
approval for the Bank to attribute Collateral Value to such Receivable
which is denominated in a specifically approved foreign currency, and the
foreign exchange risk is 100% covered by a foreign exchange contract or
other hedging mechanism whether provided by the Bank, another financial
institution or reserved for internally and (C) is due and collectible
within the United States; and
(ii) the Export Receivable arose in the ordinary course of
business from the sale of goods or performance of services; unless
specifically approved in writing by EXIMBANK, the Export-Receivable does
not arise from a transaction which could be characterized as a
bill-and-hold transaction, guaranteed sale, sale-and-return transaction,
sale on approval, consignment or any other
25
repurchase or return arrangement and all obligations of ASI which give
rise to the right to receive payment of the Export Receivable (including,
without limitation, shipment of Export Inventory) have been performed in
full, an invoice has been remitted to the Account Debtor and the Account
Debtor has accepted the subject goods or services, such that the Export
Receivable represents a final sale and none of the subject Export
Inventory has been in fact returned, rejected or repossessed; and
(iii) the payment obligation represented by the Export
Receivable (A) has not been outstanding more than (I) sixty (60) calendar
days past the original due date, or (II) ninety (90) calendar days past
the original due date for any Export Receivable which is 100% insured
through EXIMBANK or through an EXIMBANK-approved private insurer for
comprehensive commercial and political risk, or the repayment of which is
100% guaranteed by EXIMBANK, and (III) one hundred and eighty (180)
calendar days past the original invoice date, (B) is not contingent or
conditioned upon any event or subject to any claim of reduction,
counterclaim, setoff, recoupment or other defense to payment, either as a
result of returned, damaged, inferior or nonconforming Export Inventory or
arising out of any other indebtedness of ASI to the Account Debtor, and
(C) otherwise complies with any and all requirements of ASI's credit and
collection policies; and
(iv) the payment obligation represented by the Export
Receivable is not owed by an employee, stockholder of director of ASI, by
a Subsidiary of ASI or any parent corporation or any other corporation
affiliated with ASI by virtue of common ownership, partnership or joint
venture arrangement; and
(v) ASI is sole owner of the Export Receivable and has not
sold, disposed of, or otherwise encumbered its rights to receive payment
under the Export Receivable, and the Export Receivable is not subject to
the lien or security interest of any other Person except for Permitted
Liens; and
(vi) the Export Receivable is included in the universe of
Collateral with respect to which the Bank has filed a financing statement
among all records required by the Uniform Commercial Code of the
jurisdiction in which ASI maintains its principal place of business in
order to properly perfect the Bank's security interest, and the Export
Receivable is not evidenced by Chattel Paper (within the meaning of the
Uniform Commercial Code); and
(vii) as provided in Section 7 of the applicable Loan
Authorization Notice attached to the EXIMBANK Borrower Agreement, either
(A) the payment obligation represented by the Export Receivable is owed to
ASI by one of the Account Debtors whom the Bank has approved for open
account
26
terms and is within any maximum limits prescribed for open account terms
with any such Account Debtor, all as set forth on SCHEDULE II attached
hereto and made a part hereof, as the same may be supplemented or amended
from time to time, and ASI has obtained the written acknowledgement from
the Account Debtor that the Export Receivable has been assigned to the
Bank and that all payments made with respect to the Export Receivable will
be made directly to the Borrowers' Account; or (B) the entire amount of
the payment obligation represented by the Export Receivable is secured by
either (I) an irrevocable, United States dollar-denominated, commercial
letter of credit issued or confirmed by a financial institution acceptable
to the Bank, the proceeds of which letter of credit have been assigned to
the Bank or which letter of credit shall specifically provide that payment
thereunder shall be made solely to the Borrowers' Account, or (II) a
Receivables insurance policy issued by EXIMBANK or a private insurance
company acceptable to the Bank and EXIMBANK, in either case, the proceeds
of which policy have been assigned to the Bank or (III) the Account Debtor
has received "end user" financing from EXIMBANK for the payment
obligations represented by the Export Receivable and the proceeds of
EXIMBANK's loan to the Account Debtor are assigned to the Bank as security
for the Borrowers' Obligations; and
(viii) the entire amount of the Export Receivable as
reflected on ASI books and records and on any invoice or statement sent to
the Account Debtor is due and owing to ASI, net of any finance charges or
taxes relating thereto; no partial prepayment has been made with respect
to the Export Receivable except as indicated; and the amount of the Export
Receivable does not represent billings in excess of revenues earned on
contracts in progress, unless such billings represent amounts due for work
not yet performed but billed in accordance with the terms of ASI's
contract with the applicable Account Debtor; and
(ix) the Export Receivable is not due from an Account
Debtor which (A) has applied for, suffered or consented to the appointment
of, or the taking of possession by, a receiver, custodian, trustee or
liquidator of itself or all or a substantial portion of its property or
which has called a meeting of the creditors, (B) has admitted in writing
its inability, or is generally unable, to pay its debts as they become due
or has ceased operation of its present business, (C) has made a general
assignment for the benefit of creditors, (D) has commenced a voluntary
case under any state or federal bankruptcy laws which are now or hereafter
in effect, (E) has been adjudicated as bankrupt or insolvent, (F) has
filed a petition seeking to take advantage of any other law providing for
the relief of debtors, (G) has acquired to, or failed to have dismissed,
any petition which is filed against it in any involuntary case brought
under applicable bankruptcy law, or (H) has taken any action for the
purpose of effecting any of the foregoing; and
27
(x) the payment obligation represented by the Export
Receivable is not owed by a Person resident of any country which has been
identified on EXIMBANK's Country Limitation Schedule as either (A) a
country in which EXIMBANK is prohibited from doing business in the public
or private sector (as appropriate), or (B) a country which is not
available in the public or private sector (as appropriate) for EXIMBANK
guaranteed financing due to commercial reasons, unless the payment
obligation represented by the Export Receivable is secured by an
irrevocable letter of credit issued or confirmed by a financial
institution acceptable to EXIMBANK; and
(xi) the payment obligation represented by the Export
Receivable does not result from the sale of Export Inventory for military
defense purposes, and, except as specifically approved by EXIMBANK, the
Account Debtor is not a military entity.
Notwithstanding compliance with the above-described eligibility requirements, no
Export Receivable which the Bank or EXIMBANK, in their reasonable judgment, deem
uncollectible for any reason shall have Collateral Value for purposes of
determining the amount of the Available Commitment from time to time.
(b) Export Inventory will be valued at 75% of the lesser of its
wholesale cost or market value, from time to time, provided that each item of
Export Inventory, including work-in-process, satisfies the following eligibility
requirements and provided further that at no time shall the Collateral Value of
Export Inventory support more than 60% of the outstanding Loan Obligations plus
the aggregate stated amount of Commercial Letters of Credit:
(i) the Export Inventory is held by ASI for
export sale and is located within the United States; and
(ii) the Export Inventory has been purchased,
assembled or manufactured by ASI in the ordinary course of business, but
not for speculative sale, and does not constitute demonstration Export
Inventory or proprietary software (unless incorporated into or made part
of a system), and is actually owned by, and in the possession of, ASI and
not merely in the possession of ASI on a consignment or similar basis, and
the Export Inventory has not been sold or disposed of by ASI and is not
subject to the lien or security interest of any other Person except for
Permitted Liens; and
(iii) the Export Inventory is not considered by ASI or
other corporations which engage in substantially the same business as ASI
to be damaged, defective, unmerchantable, slow moving or obsolete, and has
not been returned by any other purchaser and is not defective, recalled or
unfit for further
28
processing and has not been previously sold or exported from the United
States; and
(iv) the Export Inventory is located at an address
which has been disclosed in Section 6.14 of this Agreement or by written
supplement thereto delivered to the Bank and is included in the universe
of Collateral with respect to which the Bank has filed a financing
statement among all records required by the Uniform Commercial Code of the
jurisdiction in which ASI maintains its principal place of business in
order to properly perfect the Bank's security interest, and the Export
Inventory is not evidenced by Chattel Paper (within the meaning of the
Uniform Commercial Code) or any other documents of title; and
(v) the Export Inventory is not in the possession of a
processor or bailee, or located on a premises leased or subleased to ASI
or located on a premises subject to a mortgage in favor of a Person other
than the Bank, unless the processor, bailee, lessor, sublessor or
mortgagee (as the case may be) has executed and delivered all
documentation reasonably required by the Bank to evidence the
subordination or extinguishment of rights to the Collateral and to confirm
the Bank's right to gain access to such premises to exercise any and all
rights against the Collateral; and
(vi) the Export Inventory does not constitute and is
not to be incorporated into any items which are destined for shipment to
any country which has been identified on EXIMBANK's Country Limitation
Schedule as either (A) a country in which EXIMBANK is prohibited from
doing business in the public or private sector (as appropriate), or (B) a
country which is not available in the public or private sector (as
appropriate) for EXIMBANK-guaranteed financing due to commercial reasons,
unless the purchase price of such item of Export Inventory to be sold
within any such country is secured by an irrevocable letter of credit
issued or confirmed by a financial institution acceptable to EXIMBANK; and
(vii) the Export Inventory does not
constitute defense articles or defense services and is not destined to
be purchased for military defense purposes; and
(viii) any Export Inventory which is listed on the
United Munitions List (Art 121 of Title 22 of the Code of Federal
Regulations), unless ASI shall have provided written notice to the Bank
describing such items of Export Inventory and the corresponding invoice
amount for each and EXIMBANK shall have approved such Export Inventory for
financing under the Commitment; and
29
(ix) the Export Inventory contains at least
50% U.S. content, which is defined to include all labor, materials and
services which are of United States origin or manufacture and which are
incorporated into an item within the United States; and
(x) the Export Inventory was not produced in violation
of the Fair Labor Standards Act and it not subject to the "hot goods"
provisions contained in 29 UJC ss.215 or any successor statute; AND
(xi) the sale of the Export Inventory will
not result in an ineligible Receivable.
Upon the sale, shipment or other disposition of any item of Export Inventory,
such item of Export Inventory shall cease to have Collateral Value as Export
Inventory; however, the resulting Export Receivable shall have Collateral Value
provided that it otherwise satisfies all of the eligibility criteria for Export
Receivables described above.
No Collateral other than Export Receivables and Export Inventory which
satisfy the eligibility requirements contained in paragraphs (a) and (b) above
shall have a value for purposes of determining the amount of the Available
Commitment from time to time. Any Export Receivable or Export Inventory which
subsequently fails to satisfy any of the eligibility requirements set forth in
this Section shall immediately cease to have any value for purposes of
determining the amount of the Available Commitment from time to time.
For purposes of facilitating compliance by the Borrowers with the
foregoing eligibility requirements, a copy of EXIMBANK's current Country
Limitation Schedule is attached as Schedule I to this Agreement. This Schedule
is revised, amended and updated periodically, and the Bank will endeavor to
provide the Borrowers with copies of any supplements and modifications to the
Country Limitation Schedule which are provided to it by EXIMBANK.
5.4 LOCATION OF COLLATERAL: PRINCIPAL PLACE OF BORROWERS' BUSINESSES: The
Borrowers agree to keep the Bank informed as to the location of the Collateral
and the address of each Borrower's principal place of business, give the Bank
prior notice of any contemplated changes of location or the address of either
Borrower's principal place of business, and not change the location of any of
the Collateral or the address of either Borrower's principal place of business,
without the prior written consent of the Bank. Notwithstanding the foregoing,
with notice to, but without the need for obtaining the consent of the Bank, the
Borrowers may move Collateral among locations where the Bank has filed Financing
Statements to properly perfect its lien in the Collateral.
5.5 LOSS OF COLLATERAL. The Bank shall not be liable for any loss of any
Collateral in its possession unless such loss is directly caused by the gross
negligence or willful misconduct of the Bank. In no event any shall such loss
diminish the debt due.
30
5.6 FILING OF FINANCING STATEMENTS: PERFECTION OF SECURITY
INTEREST IN COLLATERAL.
(a) The security interest created by this Agreement shall be
perfected by the filing of financing statements which fully comply with Article
9 of the Uniform Commercial Code, as adopted by each of the states in which the
Collateral may be located, in such offices as may be required by the Bank. The
parties agree that:
(i) with respect to any such financing statement, a
carbon, photographic or other reproduction of a security agreement or a
financing statement is sufficient as a financing statement for purposes of
Section 9-402 of the Uniform Commercial Code;
(ii) all necessary continuation statements shall be
filed by the secured party or its assigns named therein within the time
prescribed by Article 9 of the Uniform Commercial Code, as adopted by each
of the states in which the Collateral may be located, in order to continue
the perfection of the security interests created by this Agreement;
(iii) if at any time any of the information contained
in any financing statement filed in connection with the security interests
created by this Agreement, including without limitation, the location or
description of the Collateral or the name, address or principal place of
business of either Borrower, shall change in such manner as to cause such
financing statement to become misleading in any material respect or as may
impair the perfection of the security interests intended to be created by
this Agreement, then the Borrowers shall promptly prepare an amendment to
such financing statement as may be necessary to continue the perfection of
the security interest intended to be created by this Agreement and file
the same in any office where such amendment is required to be filed to
continue the perfection of the security interests created by this
Agreement;
(iv) upon the request of the Bank, the Borrowers shall
prepare, have executed and file any amendments to the financing statements
filed with respect to the security interests created by this Agreement in
such form as the Bank may require; and
(v) the Borrowers shall bear all costs of
any and all of the filings described in this SECTION 5.6, including any
recordation taxes payable as a result of such filings; and
(vi) upon request by the Bank or EXIMBANK, the
Borrowers shall provide, at their expense, an opinion of counsel as to the
31
effectiveness and perfection of the Bank's lien on the Collateral or any
portion thereof.
(b) To the extent deemed necessary or appropriate by the Bank,
the security interest created by this Agreement in any items of Collateral, for
which the UCC requires possession in order to perfect the Bank's lien in such
item of Collateral, shall be perfected by the delivery to the Bank or, with the
Bank's consent, to agents, branches, affiliates, correspondents or others acting
on behalf of the Bank, of all such Collateral as security for the Borrowers'
Obligations.
(c) The security interest created by this Agreement in any
Receivable which is owed to either Borrower by any state or political
subdivision thereof or by the United States or any department, agency or
instrumentality thereof, shall be further perfected by such Borrower's execution
and delivery to the Bank of any instruments, the giving of any notices, and the
taking of any additional steps which may be required by the Federal Assignment
of Claims Act, the Federal Assignment of Contracts Act or any equivalent
provision of state or local law in order to ensure the effectiveness of the
assignment of such Receivable against the account debtor.
(d) The security interest created by this Agreement in any
unsecured Export Receivable shall be further perfected by the execution and
delivery to the Bank of any instruments and the giving of any notices and the
taking of any additional steps which may be required under foreign law in order
to ensure the effectiveness of the assignment of such Export Receivable against
the Account Debtor.
5.7 ASSIGNMENT OF LETTER OF CREDIT PROCEEDS.
(a) The Borrowers shall require that each letter of credit issued
for its benefit with respect to any Export Receivable or Export Inventory shall
provide that one of the required documents for the first payment under the
letter of credit shall be a copy of an assignment of proceeds executed by such
Borrower as beneficiary of the letter of credit in favor of the Bank; said
assignment shall be for the full amount of the letter of credit, and shall
provide that all payments under the letter of credit shall be made directly to
the Borrowers' Account.
(b) The Borrowers will take all necessary and advisable steps to
ensure that each letter of credit described in paragraph (a) above will either
(i) be delivered to the paying or confirming bank and that said paying or
confirming bank shall be authorized to retain the letter of credit on behalf of
the Bank as the assignee of the proceeds thereof, or (ii) be retained by such
Borrower, if no paying or confirming bank has been designated.
(c) In order to perfect the Bank's assignment of the proceeds of
the letters of credit issued for such Borrower's benefit, each Borrower agrees
to act as the
32
agent of the Bank for the purposes of (i) accepting delivery of all such letters
of credit, and (ii) holding such letters of credit for the benefit of the Bank
until such time as the letters of credit are delivered to the paying or
confirming bank in accordance with paragraph (b) above.
(d) In the event that either Borrower is unable to obtain the
assignment of the letter of credit in accordance with paragraph (a) above, such
Borrower shall be required to arrange in writing (with a copy to the Bank) with
the account party under any such letter of credit that the issuer of said letter
of credit include therein a provision to the effect that payment under said
letter of credit shall be negotiated only at the Bank's counters or,
alternatively, that payment shall be made only to the Borrowers' Account.
5.8 ASSIGNMENT OF CONTRACT/PURCHASE ORDER PROCEEDS. The Borrowers shall
assign to the Bank, immediately after the execution of a contract of sale with
an importer or receipt of a purchase order from an importer, all amounts to be
paid to such Borrower under that contract or purchase order. Said assignment
shall provide that all of said payments shall be made directly to the Borrowers'
Account.
5.9 ASSIGNMENT OF FOREIGN CREDIT INSURANCE POLICY PROCEEDS AND
BUYER/SUPPLIER FINANCING. The Borrowers shall, simultaneously with the execution
of this Agreement and as and when such policies are put into effect or financing
is obtained by either Borrower for the benefit of any Account Debtor, at any
time prior to the payment and performance in full of the Borrowers' Obligations,
assign to the Bank the proceeds of all foreign credit insurance policies
maintained by such Borrower and any financing obtained by such Borrower for the
benefit of any Account Debtor, including (without limitation) financing the
repayment of which is guaranteed by EXIMBANK, such assignment to provide for
payment to be made directly into the Borrowers' Account.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Bank to make the Loan and Letters of Credit available to or
for the account of the benefit of ASI pursuant to this Agreement and the other
Financing Documents, and to induce EXIMBANK to issue the EXIMBANK Guarantee,
each Borrower represents and warrants to the Bank and EXIMBANK, as follows, each
of such representations and warranties to be reconfirmed by each Borrower at the
time each Borrowing Base Certificate, Application and Agreement for Commercial
Letter of Credit and Application and Agreement for Standby Letter of Credit is
submitted to the Bank and at the time the Bank receives any request from ASI for
any advance of the Loan, it being the affirmative obligation of the Borrowers to
notify the Bank and EXIMBANK in writing of any facts which would in any way
affect its ability to make the representations contained in this Article VI at
any subsequent date:
33
6.1 SUBSIDIARIES. The Borrower has no Subsidiaries except those
set forth on Schedule 6.1.
6.2 GOOD STANDING. The Borrower (a) is a corporation duly organized and
existing, in good standing, under the laws of the jurisdiction of its
incorporation, (b) has the corporate power to own its property and to carry on
its business as now being conducted, and (c) is duly qualified to do business
and is in good standing in each jurisdiction in which the character of the
properties owned by it therein or in which the transaction of its business makes
such qualification necessary, except where failure to be so qualified would not
have a Material Adverse Effect.
6.3 CORPORATE AUTHORITY. The Borrower has full corporate power and
authority to enter into and execute and deliver this Agreement and each of the
other Financing Documents executed and delivered by the Borrower, and to incur
and perform the Borrowers' Obligations provided for herein and therein, all of
which have been duly authorized by all proper and necessary corporate action and
all material governmental licenses, authorizations, consents and approvals
required. No consent or approval of stockholders or of any other person or
public authority or regulatory body is required as a condition to the validity
or enforceability of this Agreement or any of the other Financing Documents, or
if required the same has been duly obtained.
6.4 BINDING OBLIGATIONS. This Agreement and each of the other Financing
Documents executed and delivered by the Borrower have been properly executed by
the Borrower, constitute valid and legally binding obligations of the Borrower,
and are fully enforceable against the Borrower in accordance with their
respective terms, except as enforceability may be limited by laws relating to
bankruptcy, insolvency and other claims effecting creditors' rights generally
and by general equitable principles.
6.5 LITIGATION. There is no litigation or proceeding pending or, so far as
the Borrower knows, threatened before any court or administrative agency which,
in the opinion of the officers of the Borrower, will materially adversely affect
the financial condition or operations of the Borrower, or the ability of the
Borrower to pay and perform in full the Borrowers' Obligations or the authority
of the Borrower to enter into, or the validity or enforceability of, this
Agreement or any of the other Financing Documents executed and delivered by the
Borrower.
6.6 NO CONFLICTING AGREEMENTS. There is (a) no charter, by-law or
preference stock provision of the Borrower and no provision of any existing
contract or agreement binding on the Borrower or affecting its property, and (b)
to the knowledge of the Borrower, no law binding upon the Borrower or affecting
any of its property, which would conflict with or in any way prevent the
execution, delivery or performance of the terms of this Agreement or of any of
the other Financing Documents executed and
34
delivered by the Borrower, or which would be in default or violated as a result
of such execution, delivery or performance.
6.7 FINANCIAL CONDITION. The audited balance sheet of ASI as of April 30,
1999, and the unaudited balance sheets of DCI as of December 31, 1998, and the
related statements of income, cash flow and retained earnings for the periods
then ended, together with the unaudited interim balance sheet of ASI as of
December 31, 1999, and the unaudited interim balance sheet of DCI as of November
30, 1999, all heretofore delivered to the Bank, are complete and correct and
fairly present the financial position of the relevant Borrower and the results
of its operations and transactions in its surplus account(s) as of the dates and
for the periods referred to and have been prepared in accordance with United
States generally accepted accounting principles applied on a consistent basis
throughout the period involved. There are no liabilities (of the type required
to be reflected on balance sheets prepared in accordance with generally accepted
accounting principles), direct or indirect, fixed or contingent, of the Borrower
as of the date of such balance sheet which are not reflected therein or in the
notes thereto. There has been no material adverse change in the financial
condition or operations of the Borrower since the date of such balance sheet
(and to the Borrower's knowledge no such material adverse change is pending or
threatened), and the Borrower has not guaranteed the obligations of, or made any
investment in or loans to, any person except as disclosed in such balance
sheets. The Borrower has good and marketable title to all of its properties and
assets, and all of such properties and assets are free and clear of
encumbrances, except as reflected on such balance sheets or in the notes
thereto. The Borrower has incurred no indebtedness, whether primary or
contingent, which is not reflected on its balance sheets or in the notes
thereto.
6.8 FULL DISCLOSURE. Neither the financial statements referred to in
SECTION 6.7 nor any of the Financing Documents, nor any certificate or statement
furnished by the Borrower in connection with the Financing Documents, contains
any untrue statement of a material fact or, when such financial statements,
Financing Documents, statements, reports and certificates are taken in their
entirety, omit to state a material fact necessary to make the statements
contained therein or herein not misleading as of the date hereof. There is no
fact known to the Borrower or which should be known to the Borrower which the
Borrower has not disclosed to the Bank in writing prior to the date of this
Agreement with respect to the transactions contemplated by the Financing
Documents, has, or in the future could, in the reasonable opinion of the
Borrower, have a Material Adverse Effect; provided, however, that no
representation is made as to the retrospective accuracy of any pro formas,
projections or forecasts (except that no information used as a basis for such
pro formas, projections or forecasts shall be knowingly or reasonably believed
by the Borrowers to be inaccurate when used).
6.9 TAX RETURNS. The Borrower has filed or caused to be filed all required
federal, state and local tax returns and has paid all taxes as shown on such
returns to the extent that such taxes have become due. No claims have been
assessed and are unpaid
35
with respect to such taxes except as shown in the financial statements referred
to in Section 6.7 above, and the Borrower has established reserves which it
believes to be adequate for the payment of additional taxes for years which have
not been audited by the respective tax authorities.
6.10 COMPLIANCE WITH LAWS GENERALLY. The Borrower is not in violation of
any law, ordinance, governmental rule or regulation to which the Borrower is
subject (including, without limitation, any laws relating to employment
practices or to environmental, occupational and health standards and controls)
and the violation of which would have a Material Adverse Effect, and the
Borrower has obtained any and all licenses, permits, franchises and other
governmental authorizations necessary for the ownership and operation of its
properties and business except where failure to obtain any of the foregoing
would not have a Material Adverse Effect.
6.11 LICENSES. All necessary licenses, permits and authorizations required
for the exporting of the Export Inventory have been or will timely be obtained
by the Borrower, and to the best of Borrower's knowledge, all required necessary
licenses, permits, and authorizations have been or will be timely obtained by
each importer.
6.12 LIENS ON COLLATERAL. The Collateral is free and clear of
Liens except for Permitted Liens.
6.13 BORROWER'S NAME. During the past five (5) years the Borrower
has never done business under any other name.
6.14 PRINCIPAL PLACE OF BUSINESS. The principal place of business of ASI,
within the meaning of the UCC, and the office in which it keeps all of its
records concerning its Receivables and Inventory is set forth on Schedule 6.14.
ASI has maintained its principal place of business at the above-described
location for a period of at least the four (4) months immediately preceding the
Effective Date. ASI maintains only those additional places of business: set
forth on Schedule 6.14.
The principal place of business of DCI, within the meaning of the UCC, and
the office in which it keeps all of its records concerning its Receivables and
Inventory is set forth on Schedule 6.14. DCI has maintained its principal place
of business at the above-described location for a period of at least the four
(4) months immediately preceding the Effective Date. DCI maintains only those
additional places of business set forth on Schedule 6.14.
6.15 MARGIN STOCK. None of the proceeds of any of the Loan or the Letters
of Credit will be used, directly or indirectly, by ASI for the purpose of
purchasing or carrying, or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry, any "margin
security" or "margin stock" within the meaning of Regulation G, T, U or X of the
Board of Governors of the Federal Reserve
36
System (herein called "margin security" and "margin stock") or for any other
purpose which might make the transactions contemplated herein a "purpose credit"
within the meaning of said Regulation G or Regulation U, or cause this Agreement
to violate any other regulation of the Board of Governors of the Federal Reserve
System or the Securities Exchange Act of 1934 or the Small Business Investment
Act of 1958, as amended, or any rules or regulations promulgated under any of
such statutes.
6.16 ERISA. Neither the Borrower nor any Related Company maintains or
contributes to any Benefit Plan other than those listed on Schedule 6.16. Each
Benefit Plan is in compliance with ERISA in all material respects, and neither
the Borrower nor any Related Company has received any notice asserting that a
Benefit Plan is not in compliance with ERISA. No material liability to the PBGC
or to a Multiemployer Plan has been, or is expected by the Borrower to be,
incurred by the Borrower or any Related Company.
6.17 GOVERNMENTAL CONSENTS. Neither the nature of the Borrower's business
or properties, nor any relationship between the Borrower and any other entity or
person, nor any circumstance in connection with the extension of the Loan or the
issuance of the Letters of Credit is such as to require a consent, approval or
authorization of, or filing, registration or qualification with, any
Governmental Authority, on the part of the Borrower, as a condition to the
execution and delivery of this Agreement or any of the other Financing
Documents.
6.18 SUSPENSION AND DEBARMENT, ETC. Neither the Borrower nor its
Principals (as defined below) are (a) debarred, suspended, proposed for
debarment with a final determination still pending, declared ineligible or
voluntarily excluded (as such terms are defined under any of the Debarment
Regulations referred to below) from participating in procurement or
nonprocurement transactions with any United States federal government department
or agency pursuant to any of the Debarment Regulations (as defined below) or (b)
indicted, convicted or had a civil judgment rendered against them for any of the
offenses listed in any of the Debarment Regulations. For the purposes hereof,
(i) "Principals" shall mean any officer, director, owner, partner, key employee,
or other Person with primary management or supervisory responsibilities with
respect to the Borrower; or any other person (whether or not an employee) who
has critical influence on or substantive control over the transaction covered by
this Agreement; and (ii) the Debarment Regulations shall mean (x) the
Governmentwide Debarment and Suspension (Nonprocurement) regulations (Common
Rule), 53 Fed. Reg. 19204 (May 26, 1988), (y) Subpart 9.4 (Debarment,
Suspension, and Ineligibility) of the Federal Acquisition Regulations, 48
C.F.R., 9.400-9.409 and (z) the revised Governmentwide Debarment and Suspension
(Nonprocurement) regulations (Common Rule), 60 Fed. Reg. 33037 (June 26, 1995).
6.19 NO DEFAULT OR EVENT OF DEFAULT. No condition exists which (with
notice or the passage of time or both) would constitute a Default or an Event of
Default under
37
this Agreement or any of the other Financing Documents. The Borrower is not in
default under the terms of any other material agreement or material instrument
to which the Borrower is a party or by which any of the Collateral is bound or
subject.
ARTICLE VII
CONDITIONS PRECEDENT AND SUBSEQUENT
7.1 CONDITIONS PRECEDENT. The obligation of the Bank to make
advances under the Loan or to issue any Letters of Credit is subject to
satisfaction of the following conditions precedent:
(a) RECEIPT AND APPROVAL OF DOCUMENTS REQUIRED BY BANK COMMITMENT
LETTER. All of the documents required by the Bank Commitment Letter shall have
been received and approved by the Bank and its counsel, and the Bank shall be
satisfied that the Borrowers have otherwise complied with all of the terms and
conditions of the Bank Commitment Letter.
(b) APPROVAL OF COUNSEL. All legal matters incident to the Loan
and the Letters of Credit and all documents necessary in the opinion of the Bank
to the making of the Loan and the issuance of the Letters of Credit shall be
satisfactory in all respects to counsel for the Bank.
(c) COMPLIANCE. As of the date of the execution and delivery of
this Agreement, (i) the Borrowers shall have complied with, and shall then be in
compliance with, all the terms, covenants, and conditions of this Agreement and
in the other Financing Documents which are binding upon it, (ii) there shall
exist no Default or Event of Default, and (iii) the representations and
warranties contained in ARTICLE VI hereof shall be true and correct in all
material respects.
(d) SUPPORTING DOCUMENTS. The Bank shall have received a
certificate of the Secretary of each Borrower, dated the date of the execution
and delivery of this Agreement, certifying (i) that attached thereto is a true,
complete and correct copy of the Articles of Incorporation of such Borrower as
in effect on the date of such certification and a true, complete and correct
copy of the By-Laws of such Borrower, (ii) that attached thereto is a true,
complete and correct copy of resolutions adopted by the Board of Directors of
such Borrower authorizing the execution and delivery of this Agreement and each
of the other Financing Documents and authorizing the Borrower to incur the
Borrowers' Obligations and to perform all other covenants and agreements
contained in this Agreement and in the other Financing Documents, and (iii) as
to the incumbency and specimen signature of each officer of the Borrower who is
authorized to execute and deliver this Agreement, including all Borrowing Base
Certificates, Applications and Agreements for Commercial Letters of Credit and
Applications and
38
Agreements for Standby Letters of Credit to be delivered pursuant hereto, and
any other Financing Documents and all other closing papers executed and
delivered hereunder.
(e) INSURANCE. The Bank shall have received satisfactory evidence
that the insurance which the Borrowers are required by SECTION 8.3 of this
Agreement to maintain is in full force and effect.
(f) LANDLORD'S WAIVER LETTERS. The Borrowers shall have provided
to the Bank letters in form and content satisfactory to the Bank from any
processor, bailee, lessor, sublessor or mortgagee with respect to any premises
on which Export Inventory may be located which subordinates or extinguishes
rights to the Collateral and confirms the Bank's right to gain access to such
premises to exercise any and all rights against the Collateral.
(g) FEES AND EXPENSES. The Borrower shall have paid any of the
fees and expenses described in SECTION 12.3 hereof which are due and payable on
the date of this Agreement.
7.2 CONDITIONS SUBSEQUENT. The following condition must be satisfied
within the time periods specified as conditions to the obligation of the Bank to
continue to make advances under the Loan and to issue Letters of Credit. In
order to satisfy the requirements of EXIMBANK, the Bank must conduct, at the
Borrowers' expense, a post closing lien search to confirm that the UCC Financing
Statements described in SECTION 5.6(A) of this Agreement have been filed among
all appropriate records.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until payment and performance in full of the Borrowers' Obligations, the
Borrowers will perform each of the covenants contained in this ARTICLE VIII:
8.1 FINANCIAL STATEMENTS. The Borrowers shall provide to the Bank the
following financial information, all of which must contain detail reasonably
satisfactory to the Bank. All financial statements shall be complete and correct
in all material respects and the financial statements referred to in clauses (a)
and (b) shall be prepared in accordance with GAAP applied consistently
throughout the periods reflected therein and shall be prepared on a
consolidating basis:
(a) as soon as available but in no event more than 90 days after
the end of each fiscal year of ASI, copies of signed federal income tax returns
for the previous fiscal year and balance sheets of ASI and its Subsidiaries
(including DCI) as of the close of such period and the related statements of
income, shareholders' equity and cash flow for such fiscal year, all on a
consolidating basis, in each case setting forth in
39
comparative form the related figures for the previous year and reported on,
without qualification, by Ernst & Young LLP or such other independent certified
public accountants selected by the Borrowers and acceptable to the Bank; and
(b) as soon as available but in no event more than 30 days after
the end of each accounting month of ASI, unaudited balance sheets of ASI as of
the close of such month and the related unaudited income statement for such
month and for the portion of the fiscal year through such month, all on a
consolidating basis, certified by the chief financial officer of ASI to the best
of his knowledge as presenting fairly the financial condition and results of
operations of the Borrowers as of the date thereof and for the periods ended on
such date, subject to normal year end adjustments; and
(c) Within thirty (30) days after the written request of the
Bank, forecasted financial statements prepared by the Borrowers, consisting of
balance sheets, cash flow statements and income statements of the Borrowers,
reflecting projected borrowings under this Agreement and under the Domestic
Financing and setting forth the assumptions on which such forecasted financial
statements were prepared, covering the one-year period until the next fiscal
year end. Projected financial statements must reflect the good faith projections
of the Borrowers based upon reasonable assumptions of the Borrowers; provided,
however, that with respect to the accuracy of pro formas, projections or
forecasts required hereunder, the Borrowers covenant only that information used
as a basis for such pro formas, projections or forecasts shall be knowingly or
reasonably believed by the Borrowers to be true and correct when used, and that
such pro formas, projections and forecasts represent the good faith belief of
the Borrowers that they were accurate when made.
(d) Together with each delivery of financial statements by
Section 8.1(a), a certificate of the accountants who performed the audit in
connection with such statements (a) stating that they have reviewed this
Agreement and that, in making the audit necessary to the issuance of a report on
such financial statements, they have obtained no knowledge of any Default or
Event of Default or, if such accountants have obtained knowledge of a Default or
Event of Default, specifying the nature and period of existence thereof, and (b)
setting forth the calculations necessary to establish whether or not the
Borrowers were in compliance with the covenants contained in Article IX and
Section 10.2 of this Agreement as of the date of such statements.
The Borrowers authorize the Bank, after notice to the Borrowers,
to discuss the financial condition of the Borrowers with the Borrowers'
independent certified public accountants and agrees that such discussion or
communication shall be without liability to either the Bank or the Borrowers'
independent certified public accountants. The Borrowers shall deliver a letter
addressed to such accountants authorizing them to comply with the provisions of
this clause (d). Notice by the Bank to the Borrowers under this paragraph may be
given by telephone.
40
(e) Together with each delivery of financial statements required
by Section 8.1(a) and (b), a certificate of the President or chief financial
officer of ASI, in a form satisfactory to Bank in its sole discretion, (a)
stating that, based on an examination sufficient to enable him to make an
informed statement, no Default or Event of Default exists or, if such is not the
case, specifying such Default or Event of Default and its nature, when it
occurred, whether it is continuing and the steps being taken by the Borrowers
with respect to such Default or Event of Default, (b) setting forth the
calculations necessary to establish whether or not the Borrowers were in
compliance with the covenants contained in Article IX and Section 10.2 of this
Agreement as of the date of such statements and (c) containing other information
reasonably required by Bank to support Borrowers' calculations on the Borrowing
Base Certificate including, but not limited to Accounts Receivable aging and
Inventory listings.
(f) (i) Promptly upon receipt thereof, copies of all reports, if
any, submitted to either Borrower or its Board of Directors by its independent
public accountants, including, without limitation, all management reports.
(ii) From time to time and promptly upon each request,
such forecasts, data, certificates, reports, statements, opinions of counsel,
documents or further information regarding the business, assets, liabilities,
financial condition, results of operations or business prospects of the
Borrowers as the Bank may reasonably request. The rights of the Bank under this
clause (f)(ii) are in addition to and not in derogation of its rights under any
other provision of this Agreement or any of the other Financing Documents.
(iii) If requested by the Bank, statements in
conformity with the requirements of Federal Reserve Form G-1 or U-1 referred to
in Regulations G and U, respectively, of the Board of Governors of the Federal
Reserve System.
(g) whenever requested by the Bank or EXIMBANK, but in any event
no less frequently than once per calendar month, within 20 days after the end of
the previous month (i) reports with respect to the Export Receivables and Export
Inventory, which reports shall include (without limitation) customer name,
jurisdiction of customer's residence, destination of shipment, dollar amount and
number of days outstanding for each Account Receivable and location of each item
of Inventory and information concerning the status of completion of export
purchase orders, and (ii) a Borrowing Base Certificate that includes Export
Receivables and Export Inventory balances which are reconciled directly to the
month-end Receivables and Inventory aging report and to the general ledger of
ASI, and (iii) summaries of purchase orders or invoices, against which Loan
advances have been made or Letters of Credit issued, together with copies of all
documentation pursuant to which the account debtor's obligations in respect of
the purchase orders or invoices are secured, if appropriate; and
41
(h) such additional information, reports or statements as the
Bank or EXIMBANK may from time to time reasonably request.
8.2 TAXES AND CLAIMS. The Borrowers shall pay and discharge all taxes and
assessments whether general or special, ordinary or extraordinary, due and owing
by the Borrowers to all Governmental Authorities in respect of the Borrowers,
any of their respective properties or assets, franchises, businesses, income or
profits, prior to the date on which penalties attach thereto, and all lawful
claims which, if unpaid, might become a lien or encumbrance upon any of its
properties. The Borrowers may, however, defer payment of any contested taxes;
provided that the Borrowers (a) in good failure contest the obligation to pay
such taxes by appropriate proceedings promptly and diligently instituted and
conducted; (b) notify the Bank in writing of the commencement of, and any
material development in, the proceedings; (c) post a bond or takes any other
steps required to keep the contested taxes from becoming a lien on any of the
Collateral; and (d) maintain an adequate reserve for contested taxes in
conformity with GAAP.
8.3 INSURANCE. The Borrowers shall provide or cause to be provided to the
Bank, and shall maintain, or cause to be maintained, in full force and effect at
all times prior to the payment and performance in full of the Borrowers'
Obligations, such policies of insurance as are normally maintained by similar
businesses operating in the same vicinity as the Borrowers, which are
underwritten by a company or companies and are in form and amounts satisfactory
to the Bank, including, by way of example and not by way of limitation, at least
the following:
(a) permanent fire and hazard insurance or property damage
insurance covering any real property improvements owned by the Borrowers and all
Equipment and Inventory and other personal property of the Borrowers wherever
located, affording protection against at least loss or damage by fire or other
hazards covered by the standard all-risk "extended coverage" endorsement
(non-reporting form), including vandalism, malicious mischief, marine, overland
or air freight coverage for Inventory in transit and such other risks as shall
be customarily covered with respect to similar property or as the Bank may from
time to time otherwise require, in amounts acceptable to the Bank containing a
standard non-contributing, non-reporting mortgagee or loss payee clause naming
the Bank as mortgagee and loss payee, as its interests may appear and specifying
that "such policy will not be cancelled without 30 days' prior written notice to
the Bank;
(b) public liability and property damage insurance for the
Borrowers to afford protection in amounts acceptable to the Bank together with
an endorsement naming the Bank as an additional insured;
(c) business interruption insurance for the Borrower to afford
protection against such events as are customarily covered by such insurance
issued with respect to businesses similar to that conducted by the Borrowers;
and
42
(d) workers' compensation insurance of the Borrowers with
coverage limits in accordance with the requirements of applicable laws or
regulations.
Insurance proceeds shall be applied in accordance with the provisions of the
documents relating to the Domestic Financing; provided, however, that Proceeds
of insurance relating to Export Receivables and Export Inventory and the other
Collateral shall be applied in accordance with the lien priority established
pursuant to Section 5.2 of this Agreement.
8.4 CORPORATE EXISTENCE. The Borrowers shall maintain in good standing
their existence as Kansas corporations qualified to do business in each
jurisdiction in which such qualification is necessary for the conduct of its
business in such jurisdiction except where failure to be so qualified would not
have a Material Adverse Effect.
8.5 MAINTENANCE OF PROPERTIES. The Borrowers shall maintain all of their
respective properties (including inventory and equipment) in good working order,
reasonable wear and tear excepted, and condition and cause replacements and
repairs to be made when necessary for the proper and advantageous conduct of its
business.
8.6 COMPLIANCE WITH LAWS GENERALLY. The Borrowers shall comply with all
applicable laws, ordinances, governmental rules or regulations to which the
Borrowers are or become subject (including, without limitation, any laws
relating to employment practices or to environmental, occupational and health
standards and controls) and the Borrowers will maintain any and all licenses,
permits, franchises and other governmental authorizations necessary for the
ownership and operation of their respective properties and business except where
noncompliance would not have a Material Adverse Effect.
8.7 MAINTENANCE OF LICENSES. ASI will take all steps necessary to maintain
all licenses, permits and authorizations required for the export of Export
Inventory under the purchase orders which constitute the basis for the Export
Receivables against which advances of the Loan are made or Letters of Credit are
issued pursuant to the terms of this Agreement and the other Financing
Documents.
8.8 BOOKS AND RECORDS; INSPECTION. The Borrowers will keep adequate
records and books of account with respect to their businesses, in accordance
with GAAP; and permit the Bank, by its accountants, attorneys, officers or other
agents, to examine such records and books of account and to discuss the affairs,
finances and accounts pertaining thereto with officers of the Borrowers at their
offices at any time during normal business hours. As part of this requirement,
ASI shall be obligated to maintain information supporting the use of each Loan
advance, each Letter of Credit issued hereunder and supporting the satisfaction
of all eligibility requirements by each Export Receivable and item of Export
Inventory to which Collateral Value is attributable under SECTION 5.3 hereof.
43
Without limiting the foregoing, ASI acknowledges that the Bank must perform (a)
an audit of its books and records no less frequently than once during every six
(6) months, (b) a quarterly review of a sampling of export purchase orders
selected by the Bank, and representing at least ten percent (10%) of the
aggregate Dollar amount of export purchase orders and at least ten percent (10%)
of the total number of export purchase orders supporting Borrowers' Obligations
outstanding during the past fiscal quarter, and (c) an annual review of the
Commitment which shall be reported in writing to EXIMBANK.
8.9 NOTIFICATION OF CERTAIN EVENTS, EVENTS OF DEFAULT AND ADVERSE
DEVELOPMENTS. The Borrowers shall promptly notify the Bank in writing (a) within
five (5) Business Days of obtaining knowledge of any event of circumstance which
causes or may cause the Bank to consider any Export Receivables or Export
Inventory to be ineligible for purposes of determining Collateral Value and (b)
within fifteen (15) Business Days of obtaining knowledge of the occurrence of
the following (in each case describing in detail satisfactory to the Bank the
nature thereof and the action the Borrower proposes to take with respect
thereto):
(a) any Default or Event of Default under this Agreement or
any of the other Financing Documents;
(b) any notice, claim or demand from any Governmental Authority
which alleges that either Borrower is in violation of any of the terms of, or
has failed to comply with, any applicable order issued pursuant to any federal
or state statute regulating its operation of business, including, but not
limited to, the Occupational Safety and Health Act and the Environmental
Protection Act or any applicable foreign environmental laws;
(c) any debarment, suspension, proposed debarment with a final
determination still pending, declared ineligibility of voluntary exclusion (as
such terms are defined in the Debarment Regulations defined in SECTION 6.18 of
this Agreement) of either Borrower or any of their Principals (as defined in
SECTION 6.18 hereof) from participation in procurement or nonprocurement
transactions with any United States federal government department or agency, or
any indictment, conviction or civil judgment rendered against either Borrower or
any of their Principals for any of the offenses listed in any of the Debarment
Regulations;
(d) the occurrence of any event which the Borrowers reasonably
believe may adversely affect the collectability of any of the Export
Receivables, including (without limitation) the occurrence of an event under any
accounts receivable insurance maintained by the Borrowers with respect to any of
the Export Receivables or the deterioration of the financial condition of any
bank issuing a letter of credit to secure any of the Export Receivables; and
44
(e) any other development which could have a Material
Adverse Effect.
8.10 PERFORMANCE OF ALL EXPORT CONTRACTS. ASI shall perform all of its
obligations under all export contracts in accordance with their terms, including
(without limitation) the delivery of the goods required thereby, free and clear
of material defects and prior to or on the deadline specified therein (or the
deadline as extended by mutual agreement of ASI and the customer.
8.11 CONDITIONS PRECEDENT TO RIGHT TO RECEIVE PAYMENT UNDER EXPORT
CONTRACTS. ASI shall, as soon as possible, take all actions reasonably necessary
to entitle ASI to receive any payments due under all export contracts, including
(without limitation) the timely drawing of drafts under any letters of credit
issued for the benefit of ASI in connection therewith and the timely
presentation of any claims under any insurance policy issued by, or financing
guaranteed by, the Export Import Bank of the United States or any other insurer
or guarantor.
8.12 FURTHER ASSURANCES AND CORRECTIVE INSTRUMENTS. The Borrowers shall
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, from time to time, such supplements hereto and such further
instruments as may reasonably be required by the Bank or EXIMBANK for carrying
out the intention of the parties to, or facilitating the performance of, this
Agreement or any of the Financing Documents.
8.13 ERISA. As soon as possible and in any event within 30 days after the
Borrowers know, or have reason to know, that: (a) any Termination Event with
respect to a Benefit Plan has occurred or will occur, (b) the aggregate present
value of the Unfunded Vested Accrued Benefits under all Plans has increased to
an amount in excess of $0, or (c) either Borrower is in "default" (as defined in
Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan
required by reason of its complete or partial withdrawal (as described in
Section 4203 or 4205 of ERISA) from such Multiemployer Plan, a certificate of
the President or the chief financial officer of ASI setting forth the details of
such of the events described in clauses (a) through (c) as applicable and the
action which is proposed to be taken with respect thereto and, simultaneously
with the filing thereof, copies of any notice or filing which may be required by
the PBGC or other agency of the United States government with respect to such of
the event described in clauses (a) through (c) as applicable.
ARTICLE IX
FINANCIAL COVENANTS
Until payment and performance in full of the Borrowers' Obligations, the
Borrowers will comply with each of the financial covenants contained in this
ARTICLE IX,
45
all of which shall be calculated on a consolidated basis as to ASI and its
Subsidiaries (including DCI), compliance to be measured quarterly beginning
April 30, 2000 and for the covenants contained in clauses (b), (c), (d) and (e)
tested on a rolling four-quarter average basis:
9.1 FINANCIAL RATIOS.
(a) MINIMUM TANGIBLE NET WORTH. The Borrowers shall not
permit the Tangible Net Worth of the Borrowers at any time to be less than
$7,250,000.
(b) MINIMUM CURRENT RATIO. The Borrowers shall not permit
the Current Ratio of the Borrowers at any time to be less than 1.5 to 1.0.
(c) MAXIMUM FUNDED DEBT RATIO. The Borrowers shall not permit the
Funded Debt Ratio to exceed (i) 4.15:1 from April 30, 2000 through January 30,
2001; and (ii) 3:1 from and after January 31, 2001. In calculating the Funded
Debt Ratio, EBITDA will be rolled up as follows:
(1) For the April 30, 2000 measurement of the Maximum
Funded Debt Ratio, EBITDA will be the sum of (x) $1,080,000 (which represents
the deemed EBITDA of DCI alone for three (3) fiscal quarters) PLUS (y) EBITDA
for ASI alone for the three (3) fiscal quarters immediately preceding the fiscal
quarter beginning February 1, 2000 PLUS (z) the calculated EBITDA for DCI's and
ASI's combined operations for the fiscal quarter beginning February 1, 2000.
(2) For the July 31, 2000 measurement of the Maximum
Funded Debt Ratio, EBITDA will be the sum of (x) $720,000 (which represents the
deemed EBITDA of DCI alone for two (2) fiscal quarters PLUS (y) EBITDA for ASI
alone for the two (2) fiscal quarters immediately preceding the fiscal quarter
beginning February 1, 2000 PLUS (z) the calculated EBITDA for DCI's and ASI's
combined operations for the two (2) fiscal quarters beginning February 1, 2000.
(3) For the October 31, 2000 measurement of the Maximum
Funded Debt Ratio, EBITDA will be the sum of (x) $360,000 (which represents the
deemed EBITDA of DCI alone for one (1) fiscal quarter PLUS (y) EBITDA for ASI
alone for the fiscal quarter immediately preceding the fiscal quarter beginning
February 1, 2000 PLUS (z) the calculated EBITDA for DCI's and ASI's combined
operations for the three (3) fiscal quarters beginning February 1, 2000.
(4) From and after the January 31, 2001 measurement of
the Maximum Funded Debt Ratio, EBITDA will be the calculated EBITDA for DCI's
and ASI's combined operations.
46
(d) MAXIMUM LIABILITIES RATIO. The Borrowers shall not
permit the Liabilities Ratio of the Borrowers at any time to exceed 1.95 to 1.
(e) MINIMUM DEBT SERVICE COVERAGE RATIO. The Borrowers
shall not permit the Debt Service Coverage Ratio of the Borrowers at any time
to be less than 1.25:1.
9.2 CAPITAL EXPENDITURES. The Borrowers shall not make or incur
any Capital Expenditures, except that the Borrowers may make or incur Capital
Expenditures in any fiscal year in an amount not to exceed, in the aggregate,
$300,000.
ARTICLE X
NEGATIVE COVENANTS
Until payment and performance in full of all of the Borrowers'
Obligations, without the written consent of the Bank, the Borrower will not fail
to comply with any of the following covenants.
10.1 USE OF LOAN PROCEEDS OR LETTERS OF CREDIT. The Borrowers will not use
the Loan proceeds or the Letters of Credit for any purposes other than to
finance ASI's cost of assembling, manufacturing, producing and exporting
ground-based navigational equipment and airport lighting equipment. Without in
any way limiting the foregoing, the Borrowers will not use the Loan proceeds or
the Letters of Credit to finance any of the following:
(a) servicing or repaying any of the Borrowers'
pre-existing or future indebtedness unrelated to the Commitment, unless
approved by EXIMBANK in writing;
(b) acquiring fixed assets or capital goods for use in the
Borrowers' business;
(c) acquiring, equipping or renting commercial space
outside of the United States;
(d) paying the salaries of non-U.S. citizens or non-U.S.
permanent residents who are located in offices outside the United States;
(e) providing a Warranty Bond or supported by a Retainage
Receivable, unless approved in writing by EXIMBANK;
(f) financing any portion of the cost of any item of Inventory,
which represents non-United States labor, materials or services, unless such
portion is less than
47
fifty percent (50%) of the total cost of the item of Inventory and the
non-United States labor, materials or services are incorporated into the item of
Inventory within the United States;
(g) financing articles or services which are (i) directly or
indirectly destined for use by any military organization, (ii) defense articles
or services otherwise designed primarily for military use (regardless of the
native or actual use thereof), or (iii) without EXIMBANK's prior written
consent, financing any items to be used in the construction, alteration,
operation or maintenance of nuclear power, enrichment, reprocessing, research or
heavy water production facilities; OR
(h) financing goods or services destined for shipment to any
country listed on EXIMBANK's Country Limitation Schedule, except as may be
specifically permitted under Section 5.3 hereof.
10.2 BORROWINGS. The Borrowers will not create, incur, assume or suffer to
exist any Indebtedness for Borrowed Money, except for Permitted Indebtedness for
Money Borrowed.
10.3 LIENS ON COLLATERAL; OTHER ASSETS. The Borrowers will not sell,
transfer or otherwise dispose of any portion of the Collateral or create, incur,
assume or suffer to exist any Lien of any kind upon the Collateral, except for
Permitted Liens. Notwithstanding the foregoing, the Borrowers (a) may sell,
transfer or otherwise dispose of worn out or obsolete equipment up to an
aggregate market value of $10,000 during the term of this Agreement upon notice
to the Bank; and (b) may sell the Olathe Property and the Overland Park Property
(as defined in the documents relating to the Domestic Financing) as long as no
Default or Event of Default has occurred and is continuing; provided that, any
proceeds from such sale, transfer or disposition will be applied to the
Borrowers' Obligations or the Borrowers' obligations in respect of the Domestic
Financing in the order determined by the Bank in its sole but reasonable
discretion. Any other such dispositions shall be made only with the prior
written consent of the Bank, which consent shall not be unreasonably withheld,
provided that, the Bank may, in its sole discretion, require the proceeds of
such disposition to be applied to the Borrowers' Obligations or the Borrowers'
obligations in respect of the Domestic Financing in the order determined by the
Bank or to the purchase of replacement Equipment in which the Bank will have the
first perfected security interest.
10.4 MERGER, ACQUISITION, DISSOLUTION OR SALE OF ASSETS. The Borrowers
will NOT (a) enter into any merger or consolidation or dissolution, or (b)
acquire all or substantially all of the assets of any Person, or (c) sell,
lease, or otherwise dispose of any of its non-current assets, as identified in
accordance with GAAP (except assets disposed of in the ordinary course of
business), (d) make any material change in its corporate structure or identity,
or (e) enter into any agreement to do any of the foregoing; it being
48
understood that the Bank may withhold its consent to any of the foregoing in its
sole and absolute discretion.
10.5 CHANGE IN NATURE OF BUSINESS. The Borrowers will not make any
material changes in the basic nature of their businesses as conducted on the
date of this Agreement.
10.6 DOING BUSINESS WITH DEBARRED/SUSPENDED PERSONS. The Borrowers will
not knowingly enter into any transactions with any Person who is debarred,
suspended, declared ineligible or voluntarily excluded from participation in
procurement or nonprocurement transactions with any United States federal
government department or agency pursuant to any of the Debarment Regulations (as
defined in SECTION 6.18 of this Agreement).
10.7 GUARANTIES. The Borrowers will not become or remain liable with
respect to any Guaranty of any obligation of any other Person except for
Guarantees of obligations under the Bond Documents (as defined in the documents
relating to the Domestic Financing).
10.8 INVESTMENTS. The Borrowers will not acquire, after the Effective
Date, any Business Unit or Investment or permit any Investment to be
outstanding, other than Permitted Investments.
10.9 RESTRICTED DISTRIBUTIONS AND PAYMENTS, ETC.. The Borrowers shall not
declare or make any Restricted Distribution or Restricted Payment, except that
so long as no Default or Event of Default shall have occurred and be continuing
or would result therefrom, the Borrowers may make payments on the Subordinated
Indebtedness to the extent permitted by the Subordination Agreements or the
other subordination provisions applicable thereto.
10.10 TRANSACTIONS WITH AFFILIATES. The Borrowers shall not effect any
transaction with any Affiliate on a basis less favorable to the applicable
Borrower than would be the case if such transaction had been effected with a
Person not an Affiliate.
10.11 OPERATING LEASES. The Borrowers shall not enter into any lease other
than a Capitalized Lease which would cause the annual payment obligations of the
Borrowers under all leases (other than leases of real property in effect on the
Effective Date (and renewals and substitutions therefor) and Capitalized Leases)
to exceed $25,000 in the aggregate, with the exception of that certain Aircraft
Lease Agreement dated July 11, 1997, by and between ASI and Scope Leasing,
wherein ASI makes lease payments of approximately $42,000 per year.
49
10.12 BENEFIT PLANS. The Borrowers shall not permit, or take any action
which would result in, the aggregate present value of the Unfunded Vested
Accrued Benefits under all Benefit Plans of the Borrowers to exceed $0.
10.13 SALES AND LEASEBACKS. The Borrowers shall not enter into any
arrangement with any Person providing for the leasing from such Person of real
or personal property which has been or is to be sold or transferred, directly or
indirectly, by the Borrowers to such Person.
10.14 AMENDMENTS OF OTHER AGREEMENTS. The Borrowers shall not amend in any
way the interest rate or principal amount or schedule of payments of principal
and interest with respect to any Indebtedness (other than the Borrowers'
Obligations and the Borrowers' obligations with respect to the Domestic
Financing) other than to reduce the interest rate or extend the schedule of
payments with respect thereto.
ARTICLE XI
EVENTS OF DEFAULT; REMEDIES
11.1 EVENTS OF DEFAULT. Any one or more of the following events
shall constitute an Event of Default under this Agreement:
(a) FAILURE TO PAY BORROWERS' OBLIGATIONS. The Borrower shall
fail to pay the amount of any of the Borrowers' Obligations (including, without
limitation, any mandatory prepayments of the Borrowers' Obligations from the
Proceeds of the Export Receivables and Export Inventory) as and when the same
are due and payable in accordance with the terms of this Agreement and the other
Financing Documents; provided, however, that it shall not be an Event of Default
under this Section 11.1(a) if the Borrowers shall fail to pay an amount of
interest due hereunder unless and until such failure shall have continued for a
period of 10 calendar days.
(b) BREACH OF REPRESENTATION AND WARRANTIES. Any representation
or warranty made herein or in any of the Financing Documents, or in any report,
certificate, opinion (including any opinion of counsel for the Borrowers),
financial statement or other instrument delivered in connection with this
Agreement or any of the other Financing Documents shall prove to be false or
misleading in any material respect when made.
(c) OTHER DEFAULTS. Either (i) default shall be made in the due
observance or performance of any other term, covenant or agreement contained in
this Agreement or in any of the other Financing Documents, and such default
shall have continued unremedied for a period of thirty (30) days after written
notice thereof shall have been given to the Borrowers by the Bank, or (ii) an
event of default shall occur under any of the other Financing Documents.
50
(d) EXIMBANK GUARANTEE. The EXIMBANK Guarantee shall cease to be
in effect for any reason whatsoever without the Bank's prior written consent,
including (without limitation) the Borrowers' failure to pay the EXIMBANK fees,
as required by SECTION 12.13 of this Agreement.
(e) DEFAULT UNDER OTHER INDEBTEDNESS. Default shall be made with
respect to any other evidence of Indebtedness for Borrowed Money of the
Borrowers (i) to the Bank, or (ii) to any other Person in excess of $25,000, if
the effect of such default is to accelerate the maturity of such evidence of
indebtedness or liability or to permit the holder or obligee thereof to cause
any indebtedness to become due prior to its stated maturity, or any such
indebtedness shall not be paid as and when due and payable.
(f) RECEIVER; BANKRUPTCY. Either of the Borrowers shall (i) apply
for or consent to the appointment of a receiver, trustee or liquidator of itself
or any of its property, (ii) admit in writing its inability to pay its debts as
they mature, (iii) make a general assignment for the benefit of creditors, (iv)
be adjudicated as bankrupt or insolvent, or (v) file a voluntary petition in
bankruptcy, or a petition or an answer seeking reorganization or an arrangement
with creditors or to take advantage of any bankruptcy, reorganization,
insolvency, readjustment of debt, dissolution or liquidation law or statute, or
an answer admitting the material allegations of a petition filed against it in
any proceeding under any such law, or if corporate action shall be taken by
either of the Borrowers for the purposes of effecting any of the foregoing, or
(vi) by any act indicate its consent to, approval or acquiescence in any such
proceeding or the appointment of any receiver of or trustee for either of the
Borrowers or any substantial part of their properties, or suffers any such
receivership, trusteeship or proceeding to continue undischarged for a period of
30 days.
(g) INVOLUNTARY RECEIVER; BANKRUPTCY. An order, judgment or
decree shall be entered, without the application, approval or consent of either
of the Borrowers by any court of competent jurisdiction, approving a petition
seeking reorganization of the Borrowers, or of all or a substantial part of
their assets or appointing a receiver, trustee or liquidator of either of the
Borrowers, and such order, judgment or decree shall continue unstayed and in
effect for a period of 30 days.
(h) LITIGATION; JUDGMENTS. Either (i) any litigation is filed
against a Borrower or any Guarantor which has or could reasonably be expected to
have a Material Adverse Effect and such litigation is not withdrawn or dismissed
within thirty (30) calendar days of the filing thereof, or (ii) any attachment
or other levy against the Export Receivables or Export Inventory remains
unstayed on appeal for a period of 30 days, or (iii) any uninsured judgment in
excess of $50,000, or any attachment or other levy against the property of
either Borrower which exceeds $50,000 in value remains unpaid, unstayed on
appeal, undischarged, unbonded, or undismissed for a period of 30 days.
51
(i) EXECUTION; ATTACHMENT. Any execution or attachment shall be
levied against any of the Collateral, and such execution or attachment shall not
be set aside, discharged or stayed within thirty (30) days after the same shall
have been levied.
(j) CHANGE OF CONTROL. ASI shall cease to own, beneficially and
of record, 100% of the outstanding capital stock of DCI or such ownership shall
cease to vest in ASI voting control of DCI.
(k) COLLATERAL VALUE EXCEEDED. Except for Permitted Overadvances,
the outstanding Borrowers' Obligations with respect to the Utilized Portion of
the Commitment shall at any time exceed the Collateral Value, and the Borrowers
shall fail to either reduce such outstanding Borrowers' Obligations or satisfy
the Bank that the Collateral Value should be increased within five (5) Business
Days, after written notice thereof shall have been given to the Borrowers by the
Bank.
(l) LIENS AGAINST COLLATERAL. Any Lien in any of the Collateral
which is granted, or intended by the Financing Documents to be granted, to the
Bank ceases to be a valid, enforceable, perfected, first priority Lien, subject
only to Permitted Liens and a first priority Lien on the Overland Park Property
(as defined in the documents relating to the Domestic Financing) in favor of
Mutual Service Life Insurance Company and a second priority Lien on the Olathe
Property (as defined in the documents relating to the Domestic Financing) in
favor of Johnson County Certified Development Company;
(m) ENFORCEABLE FINANCING DOCUMENTS. Any material
provisions of the Financing Documents ceases to be valid, binding and
enforceable in accordance with its terms; OR
--
(n) EXIMBANK DOCUMENTS. Any Borrower fails to comply with any
provision of the EXIMBANK Borrower Agreement or the Loan Authorization Notice
attached thereto and such failure is not cured within thirty (30) calendar days.
11.2 REMEDIES. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY CONTAINED IN
THIS AGREEMENT, UPON THE OCCURRENCE OF A DEFAULT OR ANY EVENT OF DEFAULT OR UPON
RECEIPT BY THE BANK OF ANY NOTICE WHICH THE BORROWERS ARE REQUIRED TO GIVE UNDER
SECTION 8.9 OF THIS AGREEMENT, THE BANK MAY DISCONTINUE MAKING ADVANCES OF THE
LOAN AND ISSUING LETTERS OF CREDIT HEREUNDER IN ITS SOLE AND ABSOLUTE DISCRETION
AND WILL DISCONTINUE MAKING ADVANCES OF THE LOAN AND ISSUING LETTERS OF CREDIT
HEREUNDER IF AND TO THE EXTENT IT IS DIRECTED TO DO SO BY EXIMBANK.
In addition, upon the occurrence of any Event of Default, and in every
such Event of Default and at any time thereafter, unless such Event of Default
shall be cured to the satisfaction of the Bank and EXIMBANK, the Bank may
exercise any one or more of the following remedies.
52
(a) ACCELERATE TERMINATION DATE. Accelerate the
Termination Date, whereupon the Commitment shall terminate as of the
accelerated Termination Date.
(b) ACCELERATE THE BORROWERS' OBLIGATIONS. Demand immediate
payment in full of all of the Borrowers' Obligations under this Agreement and
the other Financing Documents, including (without limitation) all accrued and
unpaid interest thereon, whether or not (i) the Loan has become due and payable,
or (ii) the Commercial Letters of Credit or Standby Letters of Credit may remain
outstanding following repayment of the Borrowers' Obligations relating thereto,
whereupon all outstanding Borrowers' Obligations shall become immediately due
and payable without presentment, demand, protest, or any other notice of any
kind, all of which are hereby expressly waived, anything contained in this
Agreement or in the other Financing Documents to the contrary notwithstanding.
(c) At any time after a Default or Event of Default, ("Blocked
Account Event"), upon written notice by the Bank to the Borrowers, the Borrowers
will cause all moneys, checks, notes, drafts and other payments relating to or
constituting proceeds of Receivables, or of any other Collateral, to be
forwarded to a Bank of America Blocked Depository Account (the "Blocked
Account"), in accordance with an account agreement relating thereto which the
Borrowers agree to execute, and in particular the Borrowers will (i) advise each
Account Debtor to address all remittances with respect to amounts payable on
account of any Receivables to such specified Blocked Account, and (ii) stamp all
invoices relating to any such amounts with a legend satisfactory to the Bank
indicating that payment is to be made to the Borrowers via the Blocked Account.
From and after the occurrence of a Blocked Account Event, the Bank may, in its
sole discretion, elect to continue the use of the Blocked Account
notwithstanding that the Default or Event of Default giving rise to the Blocked
Account Event was cured or otherwise waived.
From and after such notice is given to the Borrowers that a
Blocked Account is required, the Borrowers and the Bank shall cause all
collected balances in the Blocked Account to be applied daily (i) on account of
the Borrowers' Obligations and the Borrowers' obligations in respect of the
Domestic Financing, consistent with the lien priorities on Export Receivables,
Export Inventory and the other Collateral in Section 5.2, such credits to be
entered on the first (1st) Business Day following receipt and to be conditioned
upon final payment in cash or solvent credits of the items giving rise to them,
and (ii) with respect to any balance remaining after such application, so long
as no Default or Event of Default has occurred and is continuing, for transfer
to the Borrowers' Account or such other account of the Borrowers as the
Borrowers and the Bank may agree.
Any moneys, checks, notes, drafts or other payments referred to
in this Section which are received by or on behalf of the Borrowers will be held
in trust for the
53
Bank and will be delivered to the Bank as promptly as possible in the exact form
received, together with any necessary endorsements.
Unless and until any such notice of a requirement of a Blocked
Account is given by the Bank, all Accounts Receivable may be collected directly
by the Borrowers, provided that such funds are deposited into a Bank of America
commercial account.
(d) LIQUIDATION OF SECURITY INTEREST IN COLLATERAL. Upon the
occurrence of any Event of Default, and at any time during the continuance
thereof, the Bank shall have, in addition to all other rights and remedies, the
remedies of a secured party under the Uniform Commercial Code, or under any
other governing laws, including, without limitation, the right to take
possession of the Collateral (to which the Borrowers hereby specifically
consent), and for that purpose the Bank may, so far as the Borrowers can give
authority therefor, enter upon any premises on which the Collateral may be
situated and remove the same therefrom. Upon request of the Bank, the Borrowers
shall assemble and make the Collateral available to the Bank at a place to be
designated by the Bank. Unless the Collateral is perishable or threatens to
rapidly decline in value, or is of a type customarily sold on a recognized
market, the Bank shall give the Borrowers at least ten (10) calendar days' prior
notice of the time and place of any public sale or the time after which any
private sale or any other intended disposition is to be made. The Bank may at
any time in its discretion transfer any securities (I.E., stock or bonds) or
other property constituting the Collateral into its own name or that of its
nominee and receive the income thereon and hold the same as collateral for
Borrowers' Obligations or apply it to principal, or interest or other costs,
fees or charges due on, or with respect to, the Borrowers' Obligations. The
Borrowers hereby irrevocably constitute and appoint the Bank as the Borrowers'
true and lawful attorney in fact, with full power of substitution, at the sole
cost and expense of the Borrowers, but for the sole benefit of the Bank, to
convert the Collateral to cash, including without limitation, completing the
manufacturing process of work in process, and the sale (either public or
private) of all or any portion of the Collateral, to enforce collection of the
Collateral, either in its own name or in the name of the Borrowers, compromising
or settling with any Account Debtors and prosecuting, defending, compromising or
releasing any action relating to the Collateral; to receive, open and dispose of
all mail addressed to the Borrowers and to take therefrom any remittances on or
proceeds of the Collateral in which Bank has a security interest; to notify
United States Post Office authorities to change the address for delivery of mail
addressed to the Borrowers to such address as the Bank may designate; to indorse
the name of the Borrowers in favor of the Bank upon any and all checks, drafts,
money orders, notes, acceptances or other instruments of the same or different
nature; to sign and indorse the name of the Borrowers on and to receive as
secured party any of the Collateral, any invoices, schedules of collateral,
freight or express receipts and/or other documents of title of the same or
different nature relating to the Collateral; to sign the name of the Borrowers
on any notice to the Account Debtors or on verification of the Collateral; and
to sign and file or record on behalf of the Borrowers
54
any financing or continuation statements or other statements in order to
perfect, keep perfected or protect the Bank's security interest in the
Collateral. The Bank shall not be obliged to do any of the acts or exercise any
of the powers herein above authorized, but if the Bank elects to do any such act
or exercise any such power, it shall not be responsible to the Borrowers except
for the Bank's own willful misconduct or gross negligence. All powers conferred
upon the Bank by this Agreement, being coupled with an interest, shall be
irrevocable as long as any of the Borrowers' Obligations to the Bank shall
remain unpaid.
(e) BORROWERS REMAINS LIABLE FOR DEFICIENCY. The Borrowers
are liable for the entire amount of the Borrowers' Obligations and will
remain responsible for any deficiency in any proceeds realized upon any
liquidation of Collateral.
(f) OTHER RIGHTS AND REMEDIES. In addition to any other rights or
remedies specifically set forth herein, the Bank shall have available to it all
rights and remedies under any of the Financing Documents and any other rights
and remedies afforded to it at law or in equity.
(g) PERFORMANCE BY BANK. If the Borrowers shall fail to pay any
of the Borrowers' Obligations or the Borrowers shall otherwise fail to perform,
observe or comply with any of the conditions, covenants, terms, stipulations or
agreements contained in this Agreement or any of the other Financing Documents
and the same results in an Event of Default hereunder, the Bank, without notice
to or demand upon the Borrowers, and without waiving or releasing any of the
Borrowers' Obligations or any Event of Default, and in addition to any rights or
remedies available to it under any of the other Financing Documents, may (but
shall be under no obligation to) at any time thereafter make such payment or
perform such act for the account and at the expense of the Borrowers, and may,
to the extent permitted by law, enter upon the premises of the Borrowers for
that purpose and take all such action thereon as the Bank may consider necessary
or appropriate for such purpose. All sums so paid or advanced by the Bank and
all costs and expenses (including, without limitation, reasonable attorneys'
fees and expenses) incurred in connection therewith (the "Expense Payments")
together with interest thereon from the date of payment of the advance or the
date on which the expense was incurred until paid in full at the rate of three
percent (3%) per annum in excess of the Prime Rate shall be paid by the
Borrowers to the Bank on demand and shall constitute and become a part of the
Borrowers' Obligations.
(h) NO CONDITIONS PRECEDENT TO EXERCISE OF REMEDIES. The
Borrowers shall not be relieved of any obligation by reason of the failure of
the Bank to comply with any request of the Borrowers or of any other person, to
sell any portion of the Collateral, or otherwise to enforce any provision of the
Financing Documents, or by reason of the release, regardless of consideration,
of all or any part of the Collateral, or other security for the Borrowers'
Obligations, or by reason of any agreement or stipulation between any subsequent
owner of the Collateral or other security for the
55
Borrowers' Obligations, or the Bank extending the time of payment or modifying
the terms of the Financing Documents without first having obtained the consent
of the Borrowers; and in the latter event, the Borrowers shall continue to be
liable to make payments according to the terms of any such extension or
modification agreement, unless expressly released and discharged in writing by
the Bank.
(i) REMEDIES CUMULATIVE AND CONCURRENT. No remedy herein
conferred upon or reserved to the Bank is intended to be exclusive of any other
remedies provided for in the Financing Documents, and each and every such remedy
shall be cumulative, and shall be in addition to every other remedy given
hereunder, or under the Financing Documents, or now or hereafter existing at law
or in equity or by statute. Every right, power and remedy given by the Financing
Documents to the Bank shall be concurrent and may be pursued separately,
successively or together against the Borrower or the Collateral or other
security for the Borrowers' Obligations or any part thereof, and every right,
power and remedy given by the Financing Documents may be exercised from time to
time as often as may be deemed expedient by the Bank.
(j) NO WAIVER. No delay or omission of the Bank to exercise any
right, power or remedy accruing upon the happening of an Event of Default shall
impair any such right, power or remedy or shall be construed to be a waiver of
any such Event of Default or any acquiescence therein. No delay or omission on
the part of the Bank to exercise any remedy hereunder, or acceptance by the Bank
of any partial payment on account of the Borrowers' Obligations shall constitute
a waiver of any such Event of Default and each of the remedies herein provided
shall remain continuously available to the Bank.
ARTICLE XII
MISCELLANEOUS
12.1 NOTICES. All communications between the parties or notices in
connection with this Agreement and any of the other Financing Documents shall be
in writing (unless otherwise specified herein), hand delivered or sent by
registered airmail, postage prepaid, or by telex, telecopy or other electronic
transmission, addressed to the intended recipient at the address therefor set
forth below. All such communications and notices shall be effective upon
delivery. Any party may change its address or other information for notices by
giving notice to the other parties in accordance with the provisions of this
Section.
(a) if to the Borrowers:
Airport Systems International, Inc.
11300 W. 89th Street
Overland Park, Kansas 66214
Attn: Keith S. Cowan, Chief Executive Officer
56
Facsimile Transmission No.: 913-492-0870
with a copy to:
Blackwell Sanders Peper Martin LLP
2300 Main Street, Suite 1000
Kansas City, Missouri 64141
Attn: Merry Evans, Esquire
Facsimile Transmission No.: 816-983-8080
(b) if to the Bank:
Bank of America, N.A.
1200 One Kansas City Place
1200 Main Street
Kansas City, Missouri
Attn: Charles Wooten, Vice President
Facsimile Transmission No.: 816-979-7174
with a copy to:
Bryan Cave LLP
3500 One Kansas City Place
1200 Main Street
Kansas City, Missouri 64105
Attn: Christopher J. Fisher
Facsimile Transmission No.: 816-374-3300
57
and
Miles & Stockbridge P.C.
10 Light Street
Baltimore, Maryland 21202
Attn: Cynthia C. Allner
Facsimile Transmission No.: 410-385-3700
(c) if to EXIMBANK:
Export-Import Bank of the United States
811 Vermont Avenue, N.W.
Washington, D.C. 20571
Attn: Vice President,
United States Division
12.2 SURVIVAL OF AGREEMENT; SUCCESSORS AND ASSIGNS; SUBSIDIARIES.
(a) All covenants, agreements, representations and warranties
made herein and in the certificates delivered pursuant hereto shall survive the
making of the Loan and the issuance of any Letters of Credit, and the execution
and delivery to the Bank of this Agreement and all of the other Financing
Documents and shall continue in full force and effect until all of the
Borrowers' Obligations have been paid and performed in full.
(b) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party; and all covenants, promises and agreements by or on
behalf of the Borrowers or any of their Subsidiaries which are contained in this
Agreement or in the other Financing Documents shall inure to the benefit of the
successors and assigns of the Bank, including (without limitation) EXIMBANK,
which is a third-party beneficiary of this Agreement and each of the other
Financing Documents to which it is not a direct party. The Bank may assign any
interest that it may have under this Agreement or the other Financing Documents
to any participant or to EXIMBANK, in each case without the prior consent of or
notice to the Borrowers or any other Person. The Borrowers may not assign any
interest that they may have under this Agreement or the other Financing
Documents, including (without limitation) the right to receive the benefit of
the Loan to be extended hereunder or the Letters of Credit to be issued
hereunder, without the prior written consent of the Bank and EXIMBANK. Any
assignment made or attempted by the Borrowers or either of them without the
prior written consent of the Bank and EXIMBANK shall be void and of no effect.
No consent by the Bank and EXIMBANK to an assignment by either Borrower shall
release such Borrower as the party primarily obligated and liable under the
terms of this Agreement unless the Borrower shall be released specifically by
the Bank and EXIMBANK in writing. No consent by the Bank
58
and EXIMBANK to an assignment shall be deemed to be a waiver of the requirement
of prior written consent by the Bank and EXIMBANK with respect to each and every
further assignment and as a condition precedent to the effectiveness of such
assignment.
12.3 PAYMENT OF FEES AND EXPENSES.
(a) LEGAL FEES AND EXPENSES. The Borrowers will pay all
out-of-pocket expenses incurred by the Bank in connection with (i) the
preparation and negotiation of this Agreement and the other Financing Documents,
(ii) the making of the Loan and the issuance of the Letters of Credit by the
Bank, (iii) the protection of the Collateral and any other security for the
repayment of the Borrowers' Obligations, and (iv) the enforcement and protection
of the rights of the Bank in connection with this Agreement or any of the other
Financing Documents, including, but not limited to, the fees and disbursements
of Miles & Stockbridge, Baltimore, Maryland, Bryan Cave LLP, Kansas City,
Missouri or other counsel employed by the Bank.
(b) EXIMBANK FACILITY FEE. The Borrower shall be obligated to pay
directly to the Bank the EXIMBANK Facility Fee in the amount of U.S. $90,000 PER
ANNUM, to be prorated for any portion of a 12-month period during which the
Commitment will be outstanding, which is due and payable on the date of this
Agreement and on each anniversary of the date of this Agreement.
(c) UNUSED LINE FEE. In connection with and as consideration for
the Bank's Commitment, the Borrowers shall pay a fee to the Bank, from the
Effective Date until the Termination Date, in an amount equal to one quarter of
one percent (.25%) PER ANNUM of the average daily unused portion of the
Commitment payable quarterly in arrears on the first day of each quarter and on
the date of any permanent reduction in the Commitment.
(d) EARLY TERMINATION FEE. In the event that the Borrowers
terminate this Agreement at any time prior to the Termination Date, the
Borrowers shall pay to the Bank a prepayment fee of (a) two percent (2%) of the
Commitment if such termination occurs on or before the last day of the
eighteenth (18th) month after the Effective Date hereof, or (b) one percent (1%)
of the Commitment if the Termination Date has been extended and such termination
occurs before the new Termination Date but after the eighteenth month after the
Effective Date hereof.
(e) PREPAYMENT FEE. Provided that no Event of Default has
occurred and is continuing or would occur as a result, upon the written request
of the Borrowers, the Bank will permit the Borrowers to permanently reduce the
Commitment ("Permanent Reductions") on the following conditions: (i) all
Permanent Reductions shall be in increments of not less than Two Hundred
Thousand and No/100 Dollars ($200,000); (ii) Permanent Reductions shall not
occur more than once in any thirty (30) day period; (iii) Permanent Reductions
shall not occur more than four (4) times during
59
the effectiveness of the Commitment; (iv) Lender shall be under no obligation to
re-lend any amount permanently reduced pursuant to a Permanent Reduction; (v) a
Permanent Reduction may not be made which would cause an overadvance against the
Borrowing Base after giving effect to such Permanent Reduction; (vi) a permanent
Reduction will be evidenced by an amendment to this Agreement, and will not be
effective until acknowledged by the Bank to the Borrowers in writing; (vii) a
Permanent Reduction would be supported by an equity investment into ASI in an
amount greater than or equal to the Permanent Reduction; (viii) the Borrowers
will pay the Permanent Reduction Prepayment Fee (as hereinafter defined) to the
Bank; and (ix) the Borrowers will pay the actual, reasonable costs of the Bank,
including without limitation legal fees and costs, incurred in connection with a
Permanent Reduction. The "Permanent Reduction Prepayment Fee" is equal to (a)
one and one-third percent (1.33%) of the amount of the Permanent Reduction if
such termination occurs on or before the last day of the eighteenth (18th)
months after the Effective Date hereof; or (b) two-thirds of one percent (.67%)
of the amount of the Permanent Reduction if the Termination Date has been
extended and such termination occurs before the new Termination Date but after
the eighteenth month after the Effective Date hereof.
12.4 APPLICABLE LAW; JURISDICTION, CONSENT TO SERVICE OF PROCESS. This
Agreement and all of the other Financing Documents (except where expressly
indicated therein to the contrary) shall be construed in accordance with and
governed by the laws of the State of Missouri except as specifically provided
herein. The Bank and the Borrowers hereby submit to the non-exclusive
jurisdiction of any Missouri court or federal court sitting in Missouri over any
suit, action or proceeding arising out of or relating to this Agreement. Final
judgment in any such suit, action or proceeding brought in any such court shall
be conclusive and binding upon the Borrowers and may be enforced in any court to
the jurisdiction of which the Borrowers are subject, by a suit upon the
judgment.
12.5 WAIVER OF TRIAL BY JURY. Each of the Borrowers and the Bank hereby
waive trial by jury in any action or proceeding to which the Borrowers (or
either of them) and the Bank may be parties, arising out of or in any way
pertaining to this Agreement or any of the other Financing Documents. It is
agreed and understood that this waiver constitutes a waiver of trial by jury of
all claims against all parties to such actions or proceedings, including claims
against parties who are not parties to this Agreement.
This waiver is knowingly, willingly and voluntarily made by each of the
Borrowers and the Bank, and the Borrowers hereby represent that no
representations of fact or opinion have been made by any individual to induce
this waiver of trial by jury or to in any way modify or nullify its effect. The
Borrowers further represent that they have had the opportunity to be represented
in the signing of this Agreement and in the making of this waiver by independent
legal counsel, selected of their own free will, and that they have had the
opportunity to discuss this waiver with counsel.
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12.6 MODIFICATIONS. No course of dealing between the Borrowers and the
Bank shall be effective to amend, modify or change any provision of this
Agreement or the other Financing Documents. No modification or waiver of any
provision of this Agreement or of any of the other Financing Documents, nor
consent to any departure by the Borrowers therefrom, shall be effective unless
the same shall be in writing, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which it is given. No
notice to or demand on the Borrowers in any case shall entitle the Borrowers to
any other or further notice or demand in the same, similar or other
circumstances.
12.7 NO WAIVER OF RIGHTS BY BANK. Neither any failure nor any delay on the
part of the Bank in exercising any right, power or privilege hereunder or under
this Agreement or any of the other Financing Documents shall operate as a waiver
thereof, nor shall a single or partial exercise thereof preclude any other or
further exercise or the exercise of any other right, power or privilege.
12.8 NO LIABILITY OF BANK. Neither the Bank nor EXIMBANK shall be liable
for any act or omission by it pursuant to the provisions of this Agreement, in
the absence of fraud or gross negligence. The Borrowers hereby agree that
neither the Bank nor EXIMBANK shall be chargeable for any negligence, mistake,
act or omission of any accountant, examiner, agency or attorney employed by it
in making examinations, investigations or collections, or otherwise in
perfecting, maintaining, protecting or realizing upon any lien or security
interest in the Collateral or any other interest in any security for the
Borrowers' Obligations. Neither the Bank nor EXIMBANK shall incur any liability
to the Borrowers or to any other party in connection with the acts or omissions
of the Bank or EXIMBANK in reliance upon any certificate or other paper believed
by the Bank or EXIMBANK to be genuine or with respect to any other thing which
the Bank or EXIMBANK may do or refrain from doing, unless such act or omission
amounts to fraud or gross negligence.
By accepting or approving anything required to be observed, performed or
fulfilled by the Borrowers or to be given to the Bank or EXIMBANK pursuant to
this Agreement, including, without limitation, any certificate, balance sheet,
statement of profit and loss or other financial statement, survey, receipt,
appraisal or insurance policy, neither the Bank nor EXIMBANK shall be deemed to
have warranted or represented the sufficiency, legality, effectiveness or legal
effect of the same, or of any term, provision or condition thereof and any such
acceptance or approval thereof shall not be or constitute any warranty or
representation with respect thereto.
12.9 INDEMNIFICATION. All acts, including any failure to act, relating to
the Collateral and any other security for the Borrowers' Obligations by any
agent, representative or designee of the Bank or EXIMBANK are performed solely
for the benefit of the Bank or EXIMBANK to assure repayment of the Borrowers'
Obligations and are not for the benefit of the Borrowers, or for the benefit of
any other Person,
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including without limitation, purchasers, tenants or other occupants. The
Borrowers agree to indemnify the Bank and EXIMBANK and to hold the Bank and
EXIMBANK harmless against any loss or expense (including reasonable attorneys,
fees) resulting from any and all claims, actions, settlements, or liability for
acts or failure to act in connection with the Collateral and any other security
for the Borrowers' Obligations. In addition to all amounts payable hereunder,
the Borrowers hereby protect, indemnify and hold harmless the Bank and EXIMBANK
from and against, and hereby agrees to defend the Bank and EXIMBANK against, any
and all claims, damages, losses, liabilities, costs or expenses whatsoever which
the Bank and EXIMBANK may, at any time, sustain or incur by reason of or in
consequence of or arising out of the making of the Loan, the issuance of the
Letters of Credit or the issuance of a guaranty of the Borrowers' Obligations,
as the case may be; it being the intention of the parties that this Agreement
shall be construed and applied to protect and indemnify the Bank and EXIMBANK
against any and all risks involved in the transactions contemplated by this
Agreement and the other Financing Documents, all of which risks are hereby
assumed by the Borrowers. The provisions of this Section shall survive the
expiration of this Agreement and the other Financing Documents.
12.10 NO PARTNERSHIP. Nothing contained in this Agreement shall be
construed in a manner to create any relationship among the Borrowers, the Bank
and EXIMBANK other than the relationship of borrowers, lender and credit
enhancement provider, and the Borrowers, the Bank and EXIMBANK shall not be
considered partners or co-venturers for any purpose on account of this
Agreement.
12.11 TIME OF ESSENCE. Time shall be of the essence for each and every
provision of this Agreement of which time is an element.
12.12 ILLEGALITY. If fulfillment of any provision hereof or any
transaction related hereto or to any of the other Financing Documents, at the
time performance of such provision shall be due, shall involve transcending the
limit of validity prescribed by law, then IPSO FACTO, the obligation to be
fulfilled shall be reduced to the limit of such validity; and if any clause or
provisions herein contained other than the provisions hereof pertaining to
repayment of the Borrowers' Obligations operates or would prospectively operate
to invalidate this Agreement in whole or in part, then such clause or provision
only shall be void, as though not herein contained, and the remainder of this
Agreement shall remain operative and in full force and effect; and if such
provision pertains to repayment of the Borrowers' Obligations, then, at the
option of the Bank, all of the Borrowers' Obligations to the Bank shall become
immediately due and payable.
12.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original for all purposes;
provided, however, that all such counterparts shall together constitute one and
the same instrument.
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12.14 ENTIRE AGREEMENT BY THE PARTIES. This Agreement and the other
Financing Documents constitute the full and complete agreement by the parties
concerning the subject matter to which they pertain and shall not be varied by
any oral agreement or course of dealing by the parties.
12.15 CAPTIONS AND HEADINGS. The captions and headings contained in this
Agreement are included herein for convenience of reference only and shall not be
considered a part hereof and are not in any way intended to limit or enlarge the
terms hereof.
12.16 BORROWERS' OBLIGATIONS ABSOLUTE AND UNCONDITIONAL. All of the
Borrower's Obligations shall be absolute and unconditional, irrespective of any
set-off or counterclaim or the genuineness, validity, priority or enforceability
of this Agreement or any of the other Financing Documents or any other
circumstance which might otherwise constitute a legal or equitable discharge.
12.17 CONTROLLING AGREEMENT. In order to satisfy the requirements of
EXIMBANK relating to the EXIMBANK Guaranty, the Borrowers have executed and the
Bank has acknowledged the EXIMBANK Borrower Agreement of even date herewith in
favor of EXIMBANK. As between the Bank and the Borrowers, the terms of this
Agreement shall control the terms upon which the Commitment has been extended
and the conditions under which Loan advances may be made to the Borrowers and
Letters of Credit may be issued for the account of the Borrowers.
12.18 MO. REV. STAT. SECTION 432.045 NOTICE.
The following notice is given to comply with Mo. Rev. Stat.
Section 432.045:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW
SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT THE BORROWERS AND THE BANK FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY THE BORROWERS AND
THE BANK COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE
COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES HERETO,
EXCEPT AS THE PARTIES HERETO MAY LATER AGREE IN WRITING TO MODIFY IT.
12.19 K.S.A. 16-117 AND 16-118 NOTICE.
The following notice is given to comply with K.S.A. 16-117 and
16-118.
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THIS IS THE FINAL EXPRESSION OF THE LETTER OF CREDIT, LOAN AND
SECURITY AGREEMENT BETWEEN BORROWERS AND BANK. THIS LETTER OF CREDIT, LOAN AND
SECURITY AGREEMENT CANNOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR ORAL CREDIT
AGREEMENT OR OF A CONTEMPORANEOUS ORAL CREDIT AGREEMENT BETWEEN BORROWERS AND
BANK. THE FOLLOWING SPACE (WHICH THE PARTIES HERETO AGREE IS SUFFICIENT SPACE)
IS PROVIDED FOR THE PLACEMENT OF NONSTANDARD TERMS, IF ANY (IF THERE ARE NO
NONSTANDARD TERMS TO BE ADDED, STATE "NONE"):
______________NONE________________________
__________________________________________
__________________________________________
[SIGNATURES ON NEXT PAGE]
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BY SIGNING BELOW, BORROWERS AND BANK HEREBY AFFIRM THAT THERE IS
NO UNWRITTEN ORAL CREDIT AGREEMENT BETWEEN THEMSELVES WITH RESPECT TO THE
SUBJECT MATTER OF THIS WRITTEN CREDIT AGREEMENT.
IN WITNESS WHEREOF, the Borrowers and the Bank have caused this Agreement
to be duly executed, sealed and delivered by their duly authorized officers, all
as of the day and year first above written.
ATTEST/WITNESS: AIRPORT SYSTEMS INTERNATIONAL, INC.
___________________________ By: ___________________________(SEAL)
Name: ________________________,
Title: _______________________
DCI, INC.
WITNESS:
___________________________ By: __________________________(SEAL)
Name: ________________________,
Title: _______________________
WITNESS: BANK OF AMERICA, N.A.
___________________________ By: __________________________(SEAL)
Name: ________________________,
Title: _______________________
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