EXHIBIT 10.41
FOURTH MODIFICATION AGREEMENT
DATE: January 13, 2003
PARTIES: Borrower: WHITE ELECTRONIC DESIGNS CORPORATION,
an Indiana corporation
Lender: BANK ONE, NA, a national banking association
with its main office in Chicago, Illinois,
successor by merger to Bank One, Texas, N.A.
RECITALS:
A. Lender has extended to Borrower credit ("Loan") in the
principal amount of $12,000,000 pursuant to the Loan and Security Agreement,
dated January 7, 2000 ("Loan Agreement"), and evidenced by the Promissory Note,
dated June 30, 2000 ("Note"). The unpaid principal of the Loan as of the date
hereof is $ 0.00. Capitalized terms used herein and not otherwise defined shall
have the meanings given them in the Loan Agreement.
B. The Loan is secured by, among other things, the Mortgage,
Security Agreement, Assignment of Rents and Fixture Filing, dated January 7,
2000 ("Deed of Trust"), by Borrower, as trustor, for the benefit of Lender, as
beneficiary, recorded on January 11, 2000, at Document No. 200002196, records of
Xxxxx County, Indiana. The agreements, documents, and instruments securing the
Loan and the Note are referred to individually and collectively as the "Security
Documents."
C. Lender and Borrower have executed and delivered previously the
following agreements ("Modifications") modifying the terms of the Loan, the
Note, the Loan Agreement, and/or the Security Documents: First Amendment to Loan
and Security Agreement dated as of June 30, 2000, Second Amendment to Loan and
Security Agreement dated as of June 29, 2001, and Third Modification Agreement
dated as of March 28, 2002. The Note, the Loan Agreement, the Security
Documents, any arbitration resolution, any environmental certification and
indemnity agreement, and all other agreements, documents, and instruments
evidencing, securing, or otherwise relating to the Loan, as modified in the
Modifications, are sometimes referred to individually and collectively as the
"Loan Documents." Hereinafter, "Note," "Loan Agreement," "Deed of Trust" and
"Security Documents" shall mean such documents as modified in the Modifications.
D. Unlimited Guaranties guaranteeing repayment of the Loan (the
"Guarantee Agreements") were executed and delivered to Lender by Electronic
Designs, Inc., a Delaware corporation ("EDI"), and Panelview, Incorporated, an
Oregon corporation ("Panelview") (hereinafter EDI and Panelview together called
"Guarantors").
E. Administration of the Loan has been transferred by Lender from
Dallas, Texas to Phoenix, Arizona in the state where Borrower has its chief
executive office.
F. Borrower has requested that Lender modify the Loan and the
Loan Documents as provided herein. Lender is willing to so modify the Loan and
the Loan Documents, subject to the terms and conditions herein.
AGREEMENT:
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Borrower and Lender agree as follows:
SECTION 1. ACCURACY OF RECITALS; ACKNOWLEDGEMENT.
1.1 Borrower acknowledges the accuracy of the Recitals.
SECTION 2. MODIFICATION OF LOAN DOCUMENTS; OTHER AGREEMENTS.
2.1 The Note is hereby amended as follows:
(a) The definition of Adjusted LIBOR Rate in Section 1 of
the Note is hereby amended to read as follows:
"Adjusted LIBOR Rate" shall mean with respect to each
Interest Period, on any day thereof an amount equal to the sum
of (i) one and one-half percent (1.50%), plus, (ii) the
quotient (rounded upward to the nearest 1/100 of one percent)
of (a) the LIBOR Rate with respect to such Interest Period,
divided by (b) the remainder of 1.0 less the Reserve
Requirement in effect on such day. Each determination by Bank
of the Adjusted LIBOR Rate shall, in the absence of manifest
error, be conclusive and binding.
2.2 Each of the Loan Documents is modified to provide that it
shall be a default or an event of default thereunder if Borrower shall fail to
comply with any of the covenants of Borrower herein or if any representation or
warranty by Borrower herein or by any guarantor in any related Consent and
Agreement of Guarantors is materially incomplete, incorrect, or misleading as of
the date hereof.
2.3 Each reference in the Loan Documents to any of the Loan
Documents is hereby amended to be a reference to such document as modified
herein.
SECTION 3. RATIFICATION OF LOAN DOCUMENTS AND COLLATERAL.
The Loan Documents are ratified and affirmed by Borrower and shall
remain in full force and effect as modified herein. Any property or rights to or
interests in property granted as security in the Loan Documents shall remain as
security for the Loan and the obligations of Borrower in the Loan Documents.
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SECTION 4. BORROWER REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to Lender:
4.1 No default or event of default under any of the Loan Documents
as modified herein, nor any event, that, with the giving of notice or the
passage of time or both, would be a default or an event of default under the
Loan Documents as modified herein has occurred and is continuing.
4.2 There has been no material adverse change in the financial
condition of Borrower or any other person whose financial statement has been
delivered to Lender in connection with the Loan from the most recent financial
statement received by Lender.
4.3 Each and all representations and warranties of Borrower in the
Loan Documents are accurate on the date hereof.
4.4 Borrower has no claims, counterclaims, defenses, or set-offs
with respect to the Loan or the Loan Documents as modified herein.
4.5 The Loan Documents as modified herein are the legal, valid,
and binding obligation of Borrower, enforceable against Borrower in accordance
with their terms.
4.6 Borrower is validly existing under the laws of the State of
its formation or organization and has the requisite power and authority to
execute and deliver this Agreement and to perform the Loan Documents as modified
herein. The execution and delivery of this Agreement and the performance of the
Loan Documents as modified herein have been duly authorized by all requisite
action by or on behalf of Borrower. This Agreement has been duly executed and
delivered on behalf of Borrower.
SECTION 5. BORROWER COVENANTS.
Borrower covenants with Lender:
5.1 Borrower shall execute, deliver, and provide to Lender such
additional agreements, documents, and instruments as reasonably required by
Lender to effectuate the intent of this Agreement.
5.2 Borrower fully, finally, and absolutely and forever releases
and discharges Lender and its present and former directors, shareholders,
officers, employees, agents, representatives, successors and assigns, and their
separate and respective heirs, personal representatives, successors and assigns,
from any and all actions, causes of action, claims, debts, damages, demands,
liabilities, obligations, and suits, of whatever kind or nature, in law or
equity of Borrower, whether now known or unknown to Borrower, and whether
contingent or matured, (i) in respect of the Loan, the Loan Documents, or the
actions or omissions of Lender in respect of the Loan or the Loan Documents and
(ii) arising from events occurring prior to the date of this Agreement.
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SECTION 6. CONDITIONS PRECEDENT.
The agreements of Lender and the modifications contained herein shall
not be binding upon Lender until Lender has executed and delivered this
Agreement and Lender has received, at Borrower's expense, all of the following,
all of which shall be in form and content satisfactory to Lender and shall be
subject to approval by Lender:
6.1 An original of this Agreement fully executed by the Borrower
and all Guarantors;
6.2 If Borrower or any Guarantor is a corporation, limited
liability company, partnership or trust, such resolutions or authorizations and
such other documents as Lender may require relating to the existence and good
standing of that corporation, partnership or trust, and the authority of any
person executing this Agreement or other documents on behalf of that
corporation, limited liability company, partnership or trust; and
6.3 Payment of all the internal and external costs and expenses
incurred by Lender in connection with this Agreement (including, without
limitation, inside and outside attorneys, appraisal, appraisal review,
processing, title, filing, and recording costs, expenses, and fees).
SECTION 7. INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION,
OR WAIVER.
The Loan Documents as modified herein contain the complete
understanding and agreement of Borrower and Lender in respect of the Loan and
supersede all prior representations, warranties, agreements, arrangements,
understandings, and negotiations. No provision of the Loan Documents as modified
herein may be changed, discharged, supplemented, terminated, or waived except in
a writing signed by the parties thereto.
SECTION 8. BINDING EFFECT.
The Loan Documents as modified herein shall be binding upon and shall
inure to the benefit of Borrower and Lender and their successors and assigns and
the executors, legal administrators, personal representatives, heirs, devisees,
and beneficiaries of Borrower, provided, however, Borrower may not assign any of
its right or delegate any of its obligation under the Loan Documents and any
purported assignment or delegation shall be void.
SECTION 9. CHOICE OF LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Arizona, without giving effect to conflicts of law
principles.
SECTION 10. COUNTERPART EXECUTION.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one
and the same document. Signature pages may be detached from the counterparts and
attached to a single copy of this Agreement to physically form one document.
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DATED as of the date first above stated.
WHITE ELECTRONIC DESIGNS
CORPORATION, an Indiana corporation
By:_______________________________
Name:_____________________________
Title:____________________________
BORROWER
BANK ONE, NA, a national banking
association with its main office in
Chicago, Illinois, successor by
merger to Bank One, Texas, N.A.
By:________________________________
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
LENDER
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CONSENT AND AGREEMENT OF GUARANTORS
With respect to the Fourth Modification Agreement, dated January 13,
2003 ("Agreement"), between WHITE ELECTRONIC DESIGNS CORPORATION, an Indiana
corporation ("Borrower"), and BANK ONE, NA, a national banking association with
its main office in Chicago, Illinois, successor by merger to Bank One, Texas,
N.A. ("Lender"), the undersigned (individually and, if more than one,
collectively "Guarantor") agrees for the benefit of Lender as follows:
1. Guarantor acknowledges (i) receiving a copy of and reading the
Agreement, (ii) the accuracy of the Recitals in the Agreement, and (iii) the
effectiveness of (A) the Guarantee Agreements as modified herein, and (B) any
other agreements, documents, or instruments securing or otherwise relating to
the Guarantee Agreements (including, without limitation, any arbitration
resolution and any environmental certification and indemnity agreement
previously executed and delivered by the undersigned) and the Security Documents
delivered by Guarantor (the "Security Agreements"), as modified herein. The
Guarantee Agreements, the Security Agreements and such other agreements,
documents, and instruments, as modified herein, are referred to individually and
collectively as the "Guarantor Documents."
2. Guarantor consents to the modification of the Loan Documents
and all other matters in the Agreement.
3. Guarantor fully, finally, and forever releases and discharges
Lender and its successors, assigns, directors, officers, employees, agents, and
representatives from any and all actions, causes of action, claims, debts,
demands, liabilities, obligations, and suits of whatever kind or nature, in law
or equity, that Guarantor has or in the future may have, whether known or
unknown, (i) in respect of the Loan, the Loan Documents, the Guarantor
Documents, or the actions or omissions of Lender in respect of the Loan, the
Loan Documents, or the Guarantor Documents and (ii) arising from events
occurring prior to the date hereof.
4. Guarantor agrees that all references, if any, to the Note, the
Loan Agreement, the Deed of Trust, the Security Documents, and the Loan
Documents in the Guarantor Documents shall be deemed to refer to such
agreements, documents, and instruments as modified by the Agreement.
5. Guarantor reaffirms the Guarantor Documents and agrees that
the Guarantor Documents continue in full force and effect and remain unchanged,
except as specifically modified by this Consent and Agreement of Guarantors. Any
property or rights to or interests in property granted as security in the
Guarantor Documents shall remain as security for the Guarantee Agreements and
the obligations of Guarantor in the Guarantee Agreements.
6. Guarantor agrees that the Loan Documents, as modified by the
Agreement, and the Guarantor Documents, as modified by this Consent and
Agreement of Guarantors, are the legal, valid, and binding obligations of
Borrower and the undersigned, respectively, enforceable in accordance with their
terms against Borrower and the undersigned, respectively.
7. Guarantor agrees that Guarantor has no claims, counterclaims,
defenses, or offsets with respect to the enforcement against Guarantor of the
Guarantor Documents.
8. Guarantor represents and warrants that there has been no
material adverse change in the financial condition of any Guarantor from the
most recent financial statement received by Lender.
9. Guarantor waives and agrees not to assert with respect to the
Guarantor Documents: (a) any right to require Lender to proceed against Borrower
or any other guarantor, to proceed against or exhaust any security for the
indebtedness, to pursue any other remedy available to Lender, or to pursue any
remedy in any particular order or manner; (b) demand, diligence, presentment for
payment, protest and demand, and notice of extension, dishonor, protest, demand,
nonpayment and acceptance of the Guarantee Agreements; (c) notice of the
existence, creation or incurring of new or additional indebtedness of Borrower
to Lender; (d) the benefits of any statutory provision limiting the liability of
a surety, including without limitation the provisions of A.R.S. Sections
12-1641, et seq.; (e) any defense arising by reason of any disability or other
defense of Borrower or by reason of the cessation from any cause whatsoever
(other than payment in full) of the liability of Borrower for the indebtedness;
and (f) the benefits of any statutory provision limiting the right of Lender to
recover a deficiency judgment, or to otherwise proceed against any person or
entity obligated for payment of the indebtedness, after any foreclosure or
trustee's sale of any security for the indebtedness.
10. Guarantor agrees that the Guarantor Documents are hereby
modified to provide that they shall be governed by and construed in accordance
with the laws of the State of Arizona, without giving effect to conflicts of law
principles.
11. Guarantor agrees that this Consent and Agreement of Guarantors
may be executed in one or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same document.
Signature and acknowledgement pages may be detached from the counterparts and
attached to a single copy of this Consent and Agreement of Guarantors to
physically form one document.
DATED as of the date of the Agreement.
ELECTRONIC DESIGNS, INC., a Delaware
corporation
By:_________________________________
Name:_______________________________
Title:______________________________
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PANELVIEW, INCORPORATED, an Oregon
corporation
By:_______________________________
Name:_____________________________
Title:____________________________
GUARANTOR
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