EXHIBIT 10.1
THIRD AMENDMENT
TO LOAN AGREEMENT
THIS THIRD AMENDMENT to LOAN AGREEMENT is entered into as of the 21/st/ day
of September, 2001, by and between ADVANCED ELECTRONIC SUPPORT PRODUCTS, INC., a
Florida corporation (the "Borrower") and COMMERCEBANK, N.A., (the "Bank").
RECITALS:
A. Borrower and Bank entered into that certain loan agreement (the "Loan
Agreement") dated September 23, 1999 under the terms of which Bank agreed
to lend Borrower $3,500,000.
B. Borrower and Bank executed and delivered that certain First Amendment to
Loan Agreement (the "First Amendment") dated September 2, 2000 between
them. In connection with the First Amendment, Borrower executed and
delivered to Bank that certain Renewal Promissory Note dated September 2,
2000 (the "Renewal Note") in the original principal amount of $3,500,000.
C. Borrower and Bank executed and delivered that certain Second Amendment to
Loan Agreement (the "Second Amendment") dated March 16, 2001 between them.
In connection with the Second Amendment, Borrower executed and delivered to
Bank that certain Renewal Promissory Note dated March 16, 2001 (the
"Second Renewal Note") in the original principal amount of $4,000,000.
D. Borrower and Bank desire to amend certain terms of the Loan Agreement, as
amended, pursuant to the terms hereof to among other things increase the
commitment.
NOW, THEREFORE, in consideration of the agreements set forth herein and
other good and valuable consideration, the parties hereto hereby agree as
follows:
Section 1. Definitions. All capitalized terms used herein shall have the
same meanings as used in Section 1 of the Loan Agreement, unless otherwise
defined in this Third Amendment.
Section 2. Amendments to Loan Agreement. The Loan Agreement is hereby
amended in the following respects:
(a) Financial Information. The second sentence of Section 4.1
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of the Loan Agreement shall be amended and restated as follows:
"Additionally, the Borrower shall deliver to the Lender, within sixty (60)
days after the end of each calendar quarter its quarterly 10-Qs."
(b) Other Conforming Changes: Article 1 of the Loan Agreement
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is amended as follows:
(i) Definition of Commitment Letter. The definition of
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Commitment Letter shall be amended to read as follows:
"Commitment Letter" shall mean collectively, that
certain letter agreement dated July 16, 1999 among the
Lender, the Borrower and the Guarantors, that certain
letter agreement dated September 6, 2000 among the
Lender, the Borrower and the Guarantors, that certain
letter agreement dated January 22, 2001 among the
Lender, the Borrower and the Guarantors, and that
certain letter agreement dated September 10, 2001
among the Lender, the Borrower, the Guarantors.
(ii) Definition of Line of Credit Note. The definition of
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Line of Credit Note shall be amended and restated to read as follows:
"Line of Credit Note" shall mean that certain second
renewal promissory note, dated September 21, 2001, of
Borrower to Lender in the aggregate principal amount of
Four Million Dollars ($4,000,000) which second renewal
promissory note amended, renewed and updated that
certain renewal promissory note, dated as of March 16,
2001, of Borrower to Lender in the aggregate principal
amount of Four Million Dollars ($4,000,000) which
renewal promissory note amended, renewed and replaced
that certain renewal promissory note, dated as of
September 2, 2000, of Borrower to Lender in the
aggregate principal amount of Three Million Five
Hundred Thousand Dollars ($3,500,000), and that certain
promissory note, dated September 23, 1999, of Borrower
to Lender in the aggregate principal amount of Three
Million Five Hundred Thousand Dollars ($3,500,000).
(iii) Definition of Line of Credit Maturity Date. The
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definition of Line of Credit Maturity Date shall be amended and
restated to lead as follows:
"Line of Credit Maturity Date" shall mean September 23,
2002 or such earlier date as payment of the Line of
Credit shall be due and payable in full, whether by
mandatory prepayment, acceleration or otherwise.
(iv) Definition of Loan Documents. The definition of the
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term "Loan Documents" in the Loan Agreement shall include this Third
Amendment, the Second Amendment, the First Amendment, the Line of
Credit Note, the Security Agreement, the Commitment Letter and all
other documents executed and delivered by the parties which evidence,
secure or otherwise relate to the transaction contemplated by this
First Amendment.
Section 3. No Event of Default. Borrower hereby certifies to Bank that
(a) it has kept, observed, performed and fulfilled each and every covenant,
provision and condition of the Loan Agreement and the other Loan Documents on
its part to be performed, (b) that all representations and warranties of the
Borrower made in the Loan Agreement are true and correct as of the date hereof
except for those representations and warranties which are made as of a
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particular date, which such representations and warranties are true and correct
as of such date, and (c) that no Event of Default or event which, with the
passage of time or the giving of notice or both, would constitute an Event of
Default has occurred and is continuing under the Loan Agreement, both before and
after giving effect to the amendment contemplated hereby.
Section 4. Loan Agreement Confirmed. The Loan Agreement, as amended
hereby, is reaffirmed and restated herein by Borrower and Bank, and said Loan
Agreement is hereby incorporated herein by reference as fully as if set forth in
its entirety in this Third Amendment.
Section 5. Conditions Precedent to Bank's Obligations. Banks obligations
under this Third Amendment shall be subject to the satisfaction of each of the
following conditions precedent:
(a) Borrower shall have executed and deliver this Third
Amendment, the Second Renewal Note and all other documents requested by Bank and
all Loan Documents shall be in full force and effect.
(b) Bank shall have received (i) a certificate of the secretary
of Borrower certifying that attached thereto are true and correct copies of (A)
the bylaws of Borrower, as amended through the date of such certification and
(B) resolutions duly adopted by Borrower's board of directors authorizing the
execution, delivery and performance of the Loan Documents to which Borrower is a
party, which resolutions have not been altered or amended in any respect and
remain in full force and effect, (ii) the names of each of the officers of
Borrower authorized to execute and deliver the Loan Documents; (iii) a
certificate of the applicable State authority, dated as of a recent date, as to
the good standing of Borrower; and (iv) a certificate of the Florida Department
of State, dated as of a recent date, certifying that attached are true and
correct copies of the articles of incorporation of the Borrower filed with such
agency.
(c) Borrower shall cause to be delivered to Bank such other
documents, certificates or affidavits as may be reasonably requested by Bank in
connection with consummating the transaction evidenced by this Third Amendment.
(d) An opinion of counsel from counsel to Borrower in a form
reasonably satisfactory to Lender.
Section 6. Miscellaneous.
(a) Invalidity. In the event that any one or more of the
provisions contained in this Third Amendment shall, for any reason, be held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Third Amendment.
(b) Counterparts. This Third Amendment may be executed in
several counterparts, and it shall not be necessary that the signatures of all
parties hereto be contained on any one counterpart hereof; each counterpart
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(c) Reference. From and after the effective date hereof, all
references to the Loan Agreement shall be deemed to be references to the Loan
Agreement as amended by this Third Amendment.
(d) GOVERNING LAW. THIS THIRD AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF FLORIDA
WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAW PRINCIPLES.
(e) Governing Document. In the event of a conflict between the
terms and conditions of this Third Amendment and the Commitment Letter, the
terms and conditions of this Third Amendment shall control in all respects.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
Loan Agreement to be duly executed and delivered by their respective
representatives thereunto duly authorized as of the date first above written.
Borrower:
ADVANCED ELECTRONIC SUPPORT PRODUCTS, INC.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Its: President
Bank:
COMMERCEBANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Its: Senior Vice President
