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EXHIBIT 10.17
AMENDED AND RESTATED LOAN AGREEMENT
This Agreement is made and entered into as of this 18th day of May, 1994,
by and between TRANSCRYPT INTERNATIONAL, LTD), a Nebraska limited partnership,
which has its principal place of business in Lincoln, Nebraska ("Borrower"),
and NORWEST BANK NEBRASKA, NATIONAL ASSOCIATION, a national banking
association, organized and existing under the laws of the United States of
America and which has its principal place of business in Omaha, Nebraska
("Bank").
WITNESSETH:
WHEREAS, Borrower and Bank have previously entered into a Loan
Agreement dated February 5, 1993 (the "Prior Loan Agreement") which describes
the terms and conditions of certain loans made by Bank to Borrower;
WHEREAS, subsequent to execution of the Prior Loan Agreement, Bank has
renewed a matured conditional revolving line of credit from Bank in a principal
amount not to exceed $1,100,000.00 to be used by Borrower to finance inventory
and accounts receivable in connection with Borrower's normal operations at its
plant in Lincoln, Nebraska;
WHEREAS, Borrower also desires to obtain a new term loan from Bank in
the principal amount of $700,000.00;
WHEREAS, Bank is willing to provide to Borrower the $700,000.00 term
loan, subject to certain conditions, including that Borrower execute and
deliver this Amended and Restated Loan Agreement; and
WHEREAS, the parties have mutually agreed to certain amendments to the
prior Loan Agreement and now desire to enter into this Agreement to amend,
restate and supersede the Prior Loan Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements,
terms and conditions hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
ARTICLE 1
GENERAL PRINCIPLES AND DEFINITIONS
1.1 For purposes of this Agreement, except as otherwise expressly
provided, or unless the context otherwise requires:
(a) The terms defined in this Article shall have the meanings
defined in this Article and include the plural as well as the
singular; and
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(b) All accounting terms not otherwise defined herein
have the meaning assigned to them in accordance with
generally accepted accounting principles.
1.2 Definitions. The following defined terms shall be used in
this Agreement:
(a) "Advance" means an advance by Bank to Borrower pursuant to the
provisions of the Operating Loan as more fully described in
Section 2.1 of this Agreement and any short-term letters of
credit as more fully described in Section 2.6 of this
Agreement.
(b) "Agreement" means this Amended and Restated Loan Agreement.
(c) "Base Rate" means the floating interest rate announced from
time to time by the Bank as its National Money Market Rate
upon which borrowing rates for interest charged to customers
is based.
(d) "Bond Documents" shall mean all documents relating to the
issuance of $850,000 Nebraska Investment Finance Authority
Industrial Development Revenue bonds, Series 1994 (Transcrypt
International, Ltd.) dated January 15, 1994, including but
limited to the Trust Indenture, Loan Agreement, Promissory
Note, and Deed of Trust and Construction Security Agreement.
(e) "Borrower" means Transcrypt International, Ltd., a Nebraska
limited partnership.
(f) "Business Day" means any day (other than Saturday, Sunday, or
a legal holiday) on which the Bank's main office is open for
business.
(g) "Collateral" means all assets granted to Bank as security for
the payment and performance of the obligations of Borrower to
Bank.
(h) "Collateral Agreements" means the Security Agreements, the
Deed of Trust, the Guarantees, and all other security
agreements, deeds of trust, mortgages, guaranties,
assignments, and other security instruments executed and
delivered at any time by Borrower to secure the payment and
performance of Borrower's obligations to Bank.
(i) "Current Assets", "Current Liabilities", and "Total
Liabilities" shall be as disclosed on the financial
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statements of Borrower in accordance with generally accepted
accounting principles.
(j) "Events of Default" shall mean the events of default set forth
in Article 8 of this Agreement.
(k) "Financing Statements" means all Financing Statements
previously or to be executed and delivered by Borrower to
perfect the security interests granted to Bank by Borrower,
including, without limitation, any financing statements given
pursuant to Section 3.4 of this Agreement.
(l) "First Term Note" means the promissory note heretofore made by
Borrower to Bank in the original principal amount of
$900,000.00 dated February 5, 1993, Note No. 072897.
(m) "Fixed Charge Coverage" means the sum of net income plus
depreciation and amortization plus non-cash charges divided by
the sum of principal payments plus dividends.
(n) "General Partner" means Transcrypt International, Inc., a
Nebraska corporation, which is the general partner of Borrower.
(o) "Guarantors" collectively means the General Partner, Xxxx X.
Xxxxxx, Xxxxxx X. Xxxxxx, University of Nebraska Foundation,
Farm Bureau Life Insurance Co., First Commerce Bancshares,
Xxxx Xxxxxxx, Xxxxxx Xxxxxxx, Xxxxxx X. Xxxxx and The Security
Mutual Life Insurance Co. of Lincoln, Nebraska.
(p) "Intangible Assets" means any covenants not to compete,
patents, copyrights, trademarks, trade names, trade secrets,
proprietary technologies, goodwill, franchises, deferred
charges, licenses, organization expenses, and similar assets,
in accordance with generally accepted accounting principles.
(q) "Limited Partners" collectively means the following
individuals and entities which are the limited partners of
Borrower: Xxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, husband and
wife; Xxxx Xxxxxxxxxxxx and Xxxxxx Xxxxxxxxxxxx, husband and
wife; University of Nebraska Foundation; Q E Dot, Inc.; Farm
Bureau Life Insurance Co.; First Commerce Bancshares; Xxxxxx
X. Xxxxxx.; United Security Bancorporation; Xxxx Xxxxxxx and
Xxxxxx Xxxxxxx, husband and wife;
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Xxxxxx X. Xxxxx; Xxxxxx X. Xxxxx Trust; and Xxxxxx X. Xxxxx
III Trust; and The Security Mutual Life Insurance Company of
Lincoln, Nebraska.
(r) "Loan Documents" means this Agreement, the Operating Note, the
First Term Note, the Second Term Note, the Security Agreement,
the Trust Deed, the Guaranties, and any and all other
documents, agreements, and writings of every kind relating to
or arising out of the foregoing.
(s) "Notes" collectively means the Operating Note, the First Term
Note, and the Second Term Note.
(t) "Operating Note" means the promissory note hereafter made by
Bank to Borrower in the maximum principal amount of
$1,100,000.00 and dated February 5, 1994, and which matures on
April 1, 1995.
(u) "Partners" collectively means the General Partner and the
Limited Partners.
(v) "Qualified Accounts" means an account which:
(1) Is due and payable and has not been past due more
than ninety (90) days.
(2) Arose from a bona fide, outright sale of goods by
Borrower or from the performance of services by
Borrower and Borrower has possession of and will
deliver to Bank, if requested, shipping and delivery
receipts evidencing shipment of the goods and, if
representing services, the services halve been fully
performed for the respective account debtor.
(3) Is not subject to any assignment, claim, lien, or
security interest of any character, nature, or
description whatsoever except the security interest
of Bank, and Borrower will not make any other
Assignment thereof or create any further security
interest or lien thereon or therein nor permit
Borrower's right therein to be reached by attachment
levy, garnishment, or other judicial process.
(4) Is not subject to any claim for credit, set-off,
counterclaim, allowance, or adjustment by the account
debtor or any other type of counterclaim or set-off,
and the
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account debtor has not returned any of the goods from
the date of which the account arose, nor has any
partial payment been made thereon.
(5) Arose in the ordinary and due course of Borrower's
business and no notice of bankruptcy, whether
voluntary or involuntary, insolvency or material
adverse change in the financial condition of the
account debtor has been received or knowledge had
thereof.
(6) Bank has not notified Borrower that the account or
account debtor is unsatisfactory to Bank in its
reasonable judgment.
(7) Is not evidenced by a judgment, an instrument,
chattel paper, or encumbrance.
(8) Is not an account due from any one or more of the
Partners or any person or entity related to or
affiliated with any Partners.
(w) "Qualified Inventory" shall mean inventory which
meets the following requirements:
(1) It is in saleable or usable condition.
(2) In the case goods held for sale or lease, it
is new and unused unless Bank otherwise
agrees.
(3) It is raw materials or finished goods.
(4) It is owned by Borrower totally and is not
subject to any lien or security interest in
favor of any other party except for the
security interest to the Bank.
Any inventory which is at any time Qualified Inventory, but shall
subsequently fail to meet any of the foregoing requirements, shall
thereupon cease to be termed as Qualified Inventory.
(x) "Second Term Note" means the promissory note in the principal
amount of $700,000.00 described in Article 2 of this
Agreement.
(y) "Security Agreement" means the Security Agreement dated
February 5, 1993, granting Bank a security interest to and in
favor of Bank in all now owned and hereafter acquired
inventory, accounts,
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equipment, fixtures, and general intangibles, together with
all products and proceeds.
(z) "Tangible Net Worth" means the total of all assets of Borrower
after deducting: (i) allocation (reserves) for depreciation,
amortization, and bad debts; (ii) Total Liabilities; (iii)
total Intangible Assets; and (iv) total loans to officers.
(aa) "Trust Deed" shall mean the Trust Deed to be granted by
Borrower in favor of Bank to secure the Notes against the real
property described in Exhibit "A" attached to this Agreement.
ARTICLE 2
AMOUNTS AND TERMS OF LOANS
2.1 Operating Loan. Bank agrees, on the terms and subject to the
conditions set forth in this Agreement and the Loan Documents, and subject to
Bank's continued satisfaction with the financial affairs of Borrower, to make
one or more Advances to Borrower from time to time, not to exceed in the
aggregate amount outstanding at any time the principal sum of $1,100,000.00.
This operating loan shall be a revolving facility, and it is contemplated that
Borrower will request advances, make prepayments, and request additional
advances hereunder.
2.2 Operating Note. The Advances by Bank are evidenced by a
promissory note of Borrower dated February 5, 1994 (the "Operating Note"). The
Operating Note shall be due on April 1, 1995, or upon an Event of Default,
whichever occurs first. Notwithstanding the provisions of the following
paragraph, all Advances by Bank shall be made at the reasonable discretion of
Bank.
2.3 Restrictions on Advances. All Advances are subject to a
borrowing base defined as the lesser of:
(1) $1,100,000.00, or
(2) Eighty-five percent (85%) of Qualified accounts
arising from or associated with operations at
Borrower's plant in Lincoln, Nebraska plus fifty
percent (50%) of Qualified Inventory located at
Borrower's plant in Lincoln, Nebraska, provided,
however, that the total contribution of Qualified
Inventory to the borrowing base shall not exceed
$350,000.00 in the aggregate.
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Each request for an Advance shall be deemed to be a representation by
Borrower that the statements set forth in Section 4.2 hereof are correct. The
names of the persons authorized to request Advances on behalf of Borrower shall
be provided to Bank from time to time in writing and certified by the Secretary
or Assistant Secretary of General Partner in such form as may be required by
Bank.
2.4 Interest Rate on Operating Note. Interest shall be payable on
the Operating Note at a variable rate equal to the Base Rate. Interest rate
adjustments for the Operating Note shall be effective simultaneously with any
change int he Base Rate. Interest shall be computed on the basis of actual
number of days elapsed in 360-day year. Upon and after demand, maturity, or
any Event of Default, the interest rate on the Operating Note shall be at a
rate equal to the Base Rate plus two percent (2%).
2.5 Payment of Principal and Interest on Operating Note. Interest
as accrued shall be payable on the total of Advances made under the Operating
Note on the fifteenth day of each calendar month during the term of the
Operating Note, commencing on March 15, 1994. The entire unpaid principal
balance of the Operating Note shall be paid upon any Event of Default, and if
no Event of Default occurs, shall be paid at maturity on April 1, 1995.
2.6 Short-Term Letters of Credit. Bank may, in its sole
discretion, issue short-term letters of credit to facilitate sales to
Borrower's customers. Any such letters of credit shall constitute an Advance
under the Operating Note.
2.7 First Term Loan. Bank has previously loaned the principal sum
of $900,000.00 evidenced by the First Term Note, pursuant to the terms and
conditions of the Prior Loan Agreement. Borrower affirms the First Term Note
and agrees to pay all principal and interest when due under the First Term
Note.
2.8 Second Term Note. Bank agrees, on the terms and subject to
the conditions set forth in this Agreement and the Loan Documents, to make a
term loan advance to Borrower in the principal sum of $700,000.00 (the
"Second Term Note").
2.9 Interest Rate on Second Term Note. Interest shall be payable
on the Second Term Note at the rate of eight percent (8%.) per annum, fixed for
the first twenty-four (24) months of the term of the Second Term Note, based on
the actual number of days elapsed in a 360-day year, and for the remaining
thirty-six (36) months of the term of the Second Term Note, shall be at a
variable rate equal to the Base Rate plus one percent (I%), based on the actual
number of days elapsed in a 360-day year, with interest rate adjustments
effective simultaneously with any change in the Base Rate.
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2.10 Payment of Principal and Interest on Term Note. Principal and
interest on the Second Term Note shall be payable monthly for a period of sixty
(60) months, as more particularly set forth in the Second Term Note, with the
entire unpaid balance of principal and interest payable at maturity or upon an
Event of Default, whichever occurs first.
2.11 Place and Time of Payments. All payments of principal and
interest on the Notes shall be paid to Bank at its place of business set forth
in Article 9 of this Agreement. All such payments shall be made in immediately
available funds and must be received by Bank prior to 11:00 a.m. to be credited
on the same Business Day. Any payments received after 11:00 a.m. will be
credited the next Business Day.
2.12 Interest Rate Upon Default. Upon the occurrence of an Event
of Default or maturity, the interest rate on the First Term Note and the Second
Term Note shall be the Base Rate plus two percent (2%).
2.13 Application of Payments. Any prepayments under the Notes and
after an Event of Default, all payments by Borrower to Bank under the Notes may
be applied by Bank against interest and/or principal on any one or more of the
Notes in whatever manner and order Bank may determine in its absolute
discretion, regardless of any instructions from Borrower or Guarantors to the
contrary.
2.14 Payment on Non-Business Days. Whenever any payment to be made
hereunder or under the Notes shall be stated to be due on a date other than a
Business Day, such payment may be made on the next succeeding Business Day and
such extension of time shall in such case be included in the computation of the
interest due on the Note.
2.15 Prepayment. The Notes may be prepaid by Borrower without
Borrower incurring any payment penalty. All prepayments shall first be applied
to accrued but unpaid interest with the remainder applied to reduce principal.
2.16 Security for Notes. All payments and other obligations to
Bank under the Notes and the other Loan Documents shall be secured, as provided
in Article 3 of this Agreement.
2.17 Guaranties of Obligations. All payments and other obligations
of Borrower to Bank shall be guaranteed as provided in Article 7 of this
Agreement.
2.18 Payment Application. All payments and other obligations to
Bank under the Notes and the other Loan Documents may be applied against any
of the Notes in the Bank's sole discretion, including but not limited to
Borrower's debt obligations to Bank which are not guaranteed.
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2.19 Conditions Precedent. The obligations of Bank under this
Article 2 are subject to the conditions precedent of execution and delivery of
the Loan Documents in form and substance satisfactory to Bank, and also subject
to the satisfaction of any and all conditions precedent contained in this
Agreement and in any of the other Loan Documents.
ARTICLE 3
SECURITY
In order to secure the Notes and the performance by Borrower of all
the terms and conditions of this Agreement, Borrower has or will execute the
Loan Documents.
3.1 Security Agreements. Borrower hereby affirms and agrees that
the Security Agreement shall continue in full force and effect and that all
Collateral pledged to Bank by Borrower under the Security Agreement secures
each of the Notes made by Borrower notwithstanding the fact that certain
Collateral was acquired and security interests granted therein by Borrower to
Bank in connection with specified loans by Bank to Borrower. Borrower further
agrees to execute amendments to the Security Agreement or to execute new
security agreements to cover the new assets to be acquired with the proceeds
from the sale of the Nebraska Investment Finance Authority, Industrial Revenue
Bonds (Transcrypt International Ltd. Project), Series 1994, dated January 15,
1994, to be used to acquire, construct, and equip a manufacturing facility
located in Lincoln, Nebraska for Borrower included as part of the Collateral
but which are not specifically identified on any existing Security Agreement.
Upon request by Bank, Borrower further agrees to execute new agreements and
instruments in substantially the same form as the Security Agreement
specifically identifying any or all of the Collateral. In the event Bank
requests Borrower to execute any such new agreements and instruments, neither
the request by Bank nor the execution and delivery of such new agreements and
instruments by Borrow shall be construed in any way to limit or avoid the
validity, enforceability, and scope of the Security Agreement.
3.2 Deed of Trust. Borrower hereby agrees to grant a Trust Deed
to and in favor of Bank in and to the real property described in Exhibit "A"
attached to this Agreement and incorporated herein by this reference, together
with all buildings and improvements situated in said real property. Borrower
shall execute and deliver to and in favor of Bank a Trust Deed and related
documentation in such form as may be required by Bank.
3.3 Guaranties by Guarantors. General Partner shall guarantee the
payment and performance of all obligations of Borrower under the Notes, this
Agreement, the other Loan Documents, and all other present and future
obligations of Borrower to Bank
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(whether direct or indirect, primary or secondary, absolute or contingent).
The Guaranty of the General Partner shall be unconditional and unlimited. The
obligation of General Partner under said Guaranty shall not be in limitation of
any obligations and liabilities of General Partner imposed by law by reason of
being the general partner of Borrower. Guarantors shall each guarantee the
payment and performance of all obligations of Borrower under the First Term
Note. The Guaranties of the Guarantors shall be unconditional but shall be
limited to the principal sum of $450,000.00 in the aggregate, with each
individual Limited Partner's Guaranty being limited to the following principal
sums: Xxxx X. Xxxxxx--$64,668.00; Xxxxxx X. Xxxxxx--$58,382.00; University of
Nebraska Foundation--$83,529.00; Farm Bureau Life Insurance Co .--
-$100,028.00; First Commerce Bancshares, Inc.--$53,890.00; Xxxx and Xxxxxx
Xxxxxxx--$5,685.00, jointly and severally; Xxxxxx X. Xxxxx--$56,863.00, and
The Security Mutual Life Insurance Co. of Lincoln, Nebraska--$26,955.00.
3.4 Financing Statements. Borrower acknowledges and agrees that
one or more Financing Statements were executed, delivered and filed to perfect
the security interests granted under the Security Agreement at or about the
time the Security Agreement was entered into, and that such Financing
Statements remain in full force and effect and shall continue to perfect the
security interest granted under the Security Agreement and any new security
agreement. Borrower agrees to execute any additional Financing Statements as
may be required by Bank from time to time. Borrower further agrees to furnish
Continuation Statements or Amendments to the Financing Statements as may be
required by Bank from time to time.
ARTICLE 4
CONDITIONS OF LENDING
4.1 Conditions Precedent to Advances. The obligation of Bank to
make Advances under this Agreement shall be subject to the condition precedent
that Bank shall have received on or before the day of any said Advance all of
the following, each dated (unless otherwise indicated) such day, in form and
substance satisfactory to Bank:
(a) Certified copies of documentation from Borrower
evidencing approval of this Agreement and all other
matters contemplated hereby;
(b) All Loan Documents have been properly executed by
Borrower and Grantors have properly executed the
Guaranties;
(c) Lien searches, security interest release/
terminations, title insurance commitments or
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abstracts of title showing, to the satisfaction of
Bank, that Bank has a first lien in all Collateral
pledged to secure the Notes except for the real
property described on Exhibit "A" on which the Bank
shall have a second lien;
(d) A certificate executed by the Secretary of General
Partner certifying the names of the individuals
authorized to sign this Agreement on behalf of
General Partner and on behalf of Borrower and any
other documentation required to be executed by said
party hereunder. Bank may conclusively rely on such
certificate until it receives a further certificate
cancelling or amending the prior certificate and
submitting the signature of officers named in such
further certificate.
4.2 Further Conditions Precedent to Advances. The obligation of
Bank to make Advances shall be subject to the further conditions precedent that
on the date of such Advances:
(a) The representations and warranties contained in
Article 5 are correct on and as of the date of such
Advance as though made on and as of such date, except
to the extent that such representations and warranties
relates solely to an earlier date; and
(b) No event has occurred or is continuing or would result
from said Advance, which constitute an Event of
Default (as defined below) or would constitute an
Event of Default but for the requirement that notice
be given or time elapsed or both.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
Borrower hereby makes the following representations and warranties to
Bank:
5.1 Legal Existence of Borrower. Borrower is legally organized
and formed, validly existing, and in good standing under the laws of the State
of Nebraska and is duly licensed and qualified to transact business in all
jurisdictions where the character of the property owned or leased or the nature
of the business transacted by Borrower makes such licensing or qualification
necessary or advisable. Borrower has all requisite power and authority to
conduct its business, to own its properties, and to execute and to perform all
of the obligations under the Loan Documents.
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5.2 Legal Existence of Guarantors. Each of the Guarantors which
is not an individual is legally organized and formed, validly existing, and in
good standing under the laws of the state in which it was organized and formed,
and is duly licensed and qualified to transact business in all jurisdictions
where the character of the property owned or leased or the nature of the
business transacted makes such licensing or qualification necessary or
advisable. Each of the Guarantors which is not an individual has all requisite
power and authority to conduct its businesses, to own its properties, and to
execute and perform all its obligations under this Agreement and the other Loan
Documents, including its Guaranty.
5.3 Legal Capacity of Guarantors. Each of the Guarantors who is
an individual is of the legal age of majority and has all requisite legal
capacity to execute and perform all his or her obligations under this Agreement
and the Loan Documents, including his or her Guaranty.
5.4 Ownership of Borrower. There are no general partners of
Borrower other than the General Partner, and there are no limited partners of
Borrower other than the Limited Partners. The percentage ownership interests
of the Limited Partners are as set forth in Exhibit "B" attached to this
Agreement and incorporated herein by this reference.
5.5 Partnership Agreement of Borrower. The partnership agreement
among the General Partner and the Limited Partners is the Transcrypt
Acquisition, Ltd. Agreement of Limited Partnership dated as of December 3,
1991, a copy of which has been provided by Borrower to Bank. Borrower has also
provided to Bank a copy of a Certificate of Limited Partnership of Transcrypt
Acquisition, Ltd. dated as of October 1, 1991, and filed with the Nebraska
Secretary of State on November 19, 1991, and a copy of a Certificate of
Amendment to Certificate of Limited Partnership dated as of December 5, 1991,
and filed with the Nebraska Secretary of State on December 5, 1991, changing
the name of the limited partnership from Transcrypt Acquisition, Ltd. to
Transcrypt International, Ltd. There are no other partnership agreements or
certificates except as described in this paragraph 5.5.
5.6 Legal Agreements. This Agreement and the other Loan
Documents, when executed and delivered by Borrower and Partners, constitute
legal, valid, and binding obligations of Borrower and Partners and are
enforceable against each of them in accordance with their respective terms.
Each individual signing this Agreement and the other Loan Documents has full
authority to sign same and to bind Borrower and Partners to the terms thereof.
5.7 No Conflict as to Law or Agreements. Neither the execution,
delivery, and performance of this Agreement and the other Loan Documents, nor
the consummation of the transactions
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contemplated hereby and thereby, will result in any violation of the
organizational documents of Borrower or Partners or result in the breach of any
of the terms, conditions, or provisions of, or constitute a default under, or
result in the creation or imposition of any lien or encumbrance upon any
property or assets of Borrower or Partners pursuant to any other contract or
agreement to which Borrower or Partners are a partner or by which Borrower or
Partners may be bound.
5.8 Hazardous Waste. Borrower represents, warrants, and covenants
to Bank:
(a) To Borrower's best knowledge, its operations
currently comply and in the future will comply with
all applicable federal, state, and local
environmental, health, and safety statutes and
regulations ("Requirements of Law");
(b) To Borrower's best knowledge, Borrower has obtained
and in the future will obtain all environmental
health and safety permits necessary for its
operation, all such permits are in good standing, and
the operations of Borrower comply with the terms and
conditions of such permits;
(c) Except as otherwise disclosed to Bank in writing, to
the best of its knowledge, no part of any real
property in which Borrower now or hereafter acquires
beneficial interest in including the ground water
located thereon, is presently contaminated by any
hazardous substances or hazardous waste. For
purposes of this instrument, the terms "hazardous
substances" and "hazardous waste" shall mean and
include any hazardous, toxic, or dangerous waste,
substance, or material within the meaning of the
Federal Comprehensive Environmental Response,
Compensation and Liability Act, or any other federal,
state or local statute, law, ordinance, code, rule,
regulation, order, or decree regulating, relating to,
or imposing liability or standards of conduct
concerning any hazardous, toxic, or dangerous waste,
substance or materials, as now or at anytime
hereafter may be in effect;
(d) Until the Notes are paid in full, all hazardous
substances or hazardous waste (as defined above)
which may be used by any Person for any purpose upon
Borrower's property shall be used or stored thereon
only in a safe, approved manner, in accordance with
all industrial standards and all laws, regulations,
and requirements for such storage
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promulgated by any governmental authority, and no
property of Borrower will be used for the principal
purpose of storing any such substances or waste and
no such storage or use will otherwise be allowed on
its properties which will cause, or which will
increase the waste on, in, or under said properties.
(e) Borrower shall promptly notify Bank as soon as it
knows or suspects that hazardous substances or
hazardous waste have been released on its property.
In such event, Bank may require that all violations
of law with respect thereto be corrected and that all
necessary governmental permits be obtained, all at
Borrower's sole expense;
(f) Borrower agrees to indemnify, defend, and hold Bank
and its directors, officers, employees, agents and
any successor or successors to Bank's interest in
property of any Borrower harmless from and against
any and all losses, claims, damages, penalties,
liabilities, response costs and expenses (including
all out-of-pocket litigation costs and the reasonable
fees and expenses of counsel) (i) arising out of the
inaccuracy, breach, or incompleteness of any
representation, warranty, or covenant made by
Borrower in this Section 5.8 or in any document, in
writing, delivered concurrently herewith, or (ii)
arising out of any claim or lawsuit brought or
threatened, settlement reached, or governmental
order, relating to the presence, disposal, release,
or threatened release of any hazardous substance or
hazardous waste upon the property of Borrower or
(iii) arising out of any violation of any applicable
statute or regulation for the protection of the
environment which occurs upon the property of
Borrower, provided that, to the extent Bank is
strictly liable under any statute or regulation,
Borrower's obligations hereunder shall likewise be
without regard to fault on the part of Borrower with
respect to the violation of law which results in
liability to Bank. The indemnification obligation
described in this subsection (f) shall continue and
survive the satisfaction of the Notes and any
termination or expiration of this Agreement.
5.9 Financial Condition. Borrower has heretofore furnished Bank
copies of most recent Financial Statements, including in each case the related
balance sheets and statements of income and loss. Such Financial Statements
fairly present the financial condition of Borrower on the date thereof and the
results of its
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operations for the periods then ended in accordance with generally accepted
accounting principles consistently applied.
5.10 Adverse Change. To Borrower's best knowledge, there has been
no material adverse change in its business, properties, or conditions
(financial or otherwise) since the date of the latest Financial Statements
referred to in Section 5.9 hereof.
5.11 Litigation. There are no actions, lawsuits, or proceedings
pending, or to the knowledge of Borrower, threatened against or affecting
Borrower or the properties of Borrower before any court or governmental
department, commission, board, bureau, agency, or instrumentality, domestic or
foreign, which if determined adversely to Borrower, would have a material
adverse effect on the financial condition, properties, or operation of
Borrower.
5.12 Taxes. Borrower and General Partner have filed all federal,
state, and local tax returns which are required to be filed, and Borrower and
General Partner have paid or caused to be paid such sums to the respective
taxing authorities as are shown on said returns, or on any assessment received
by any of them, to the extent such taxes have become due. Borrower and General
Partner have no knowledge of any potential adverse tax rulings or assessments
against either of them or any of their properties.
5.13 Title and Liens. Borrower has good title to each of the
properties and assets reflected in its latest balance sheet free and clear of
all mortgages, security interests, liens and encumbrances, except as permitted
or contemplated by the Loan Documents, except a deed of trust against the real
estate described in Exhibit "A" attached to this Agreement in favor of Norwest
Bank Nebraska, N.A., for the benefit of Norwest Bank Nebraska, N.A., as
Trustee, in connection with $850,000 NIFA Industrial Development Bonds, Series
1994, dated January 15, 1994.
5.14 Representations and Warranties in Other Loan Documents..
Borrower hereby incorporates by reference all terms, conditions, and provisions
of the other Loan Documents, including but not limited to all representations,
warranties, and covenants contained therein, all of which shall remain
effective at all times, regardless of whether an Event of Default has occurred.
5.15 Equipment of Borrower. Borrower is the owner and has
possession of the equipment listed in the Fair Market Valuation Report prepared
by Deloitte & Touche Valuation Group dated December 3, 1991, with additions and
deletions as set forth in the letter from Xxxx X. Xxxxxx to Xxxxx Xxxxxx of
Bank dated January 12, 1993, and also is in possession of the equipment
currently leased from Norwest Equipment Finance.
-15-
16
5.16 Representations as a Whole. This Agreement and all other
instruments, documents, certificates, and statements furnished to Bank by
Borrower, taken as a whole, do not contain any untrue statements of a material
fact or omit to state any material fact respecting the business of Borrower.
ARTICLE 6
AFFIRMATIVE COVENANTS
Borrower hereby makes the following affirmative covenants to Bank:
6.1 Preservation of Partnership Existence. Borrower will preserve
and maintain its legal existence and all of its rights, privileges, and
franchises. Borrower will also obtain and maintain such licensing and
qualification requirements in all jurisdictions where the character of the
property owned or leased or the nature of its business makes such licensing or
qualification necessary. Borrower will also retain all requisite power and
authority to conduct its business, to own its properties, and to perform all of
its obligations under this Agreement and the other Loan Documents.
6.2 Inspection Rights. Borrower will keep accurate books of
record and accounts for its business in which true and complete entries will be
made in accordance with generally accepted accounting principals consistently
applied and, upon request of Bank, will give any representative of Bank access
during normal business hours to, and permit such representative to examine,
copy, and make extracts from, any and all books, records, and documents in the
possession of Borrower, to inspect any of the properties of Borrower, and to
discuss its business affairs, finances, and accounts with any of the management
personnel, at such times and as often as may be determined by Bank.
6.3 Maintenance of Properties and Insurance. Borrower will
maintain its properties in good repair and working order. Borrower will obtain
and maintain insurance in such amounts and against such risks as is usually
carried by companies engaged in similar businesses and owning similar
properties, including hazard insurance on all property of Borrower, in such
form and in such amounts agreeable to Bank, who shall be named as loss payee
thereunder to the extent of its interest. Certificates of Insurance shall be
provided by Borrower to Bank evidencing the existence of insurance and the loss
payee status of Bank.
6.4 Compliance With Laws. Borrower will comply with the
requirements of all applicable laws, rules, regulations, and orders of any and
all governmental and regulatory authorities.
-16-
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6.5 Financial Information. Borrower shall provide and/or cause to
be provided the following information to Bank within the time periods stated:
(a) Within ninety (90) days of the fiscal year-end of
Borrower, annual audited financial statements and
reports of Borrower relating to the operation of the
business of Borrower, which annual reports shall
include the balance sheets of Borrower for the
operation to the end of such fiscal year, and the
related statements of income, retained earnings, and
cash flows of Borrower for the fiscal year then
ended, all in reasonable detail and prepared by the
certified public accountants for Borrower in
accordance with generally accepted accounting
principles applied on a consistent basis;
(b) Within thirty (30) days of the end of each calendar
month, internally prepared monthly financial
statements and reports and monthly accounts
receivable agings of Borrower, in such form and
detail as may be required by Bank, certified by the
chief financial officer of Borrower;
(c) Upon request from Bank, monthly reports of accounts
payable of Borrower, in such form as may be required
by Bank, all certified by the chief financial officer
of Borrower;
(d) Within thirty (30) days of the end of each calendar
quarter, and at such other times as Bank may
reasonably request, quarterly covenant compliance
certificates from Borrower in such form as may be
required by Bank;
(e) Monthly borrowing base certification from Borrower
supported by detailed agings and semi-annual
collateral audits; and
(f) Annual unaudited financial statements from each
Guarantor within ninety (90) days of their respective
fiscal year ends, except Xxxx and Xxxxxx Xxxxxxx.
6.6 Notification of Material Adverse Change. Borrower will notify
Bank of any material adverse change in the financial condition of Borrower and
of any material adverse change in the business operations of Borrower.
6.7 Financial Ratios. Borrower shall at all times maintain the
following financial ratios:
-17-
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(a) A minimum ratio of Current Assets to Current
Liabilities of 2.0 to 1.0;
(b) A minimum quick ratio (current assets less inventory
divided by current liabilities) of 1.3 to 1. 0; and
(c) A maximum debt to stockholder equity of 1.25 to 1.0
from and after the date of this Agreement to July 31,
1994, and a maximum debt to stockholder equity of 1.0
to 1.0 from and after August 1, 1994.
6.8 Minimum Tangible Net Worth. Borrower shall maintain minimum
Tangible Net Worth of $950,000.00 from December 31, 1993, to December 31, 1994;
$1,950,000.00 from December 31, 1994, to December 31, 1995; and $2,950,000.00
from and after December 31, 1995.
6.9 Capital Expenditures. Annual Capital expenditures of Borrower
and leases of personal property by Borrower as lessee shall not exceed
$1,300,000.00 for fiscal year of Borrower ending December 31, 1994, and
$500,000.00 for each fiscal year thereafter.
6.10 Minimum Fixed Charge Coverage. Borrower shall maintain a
minimum Fixed Charge Coverage of 1.0 times from and after the date of this
Agreement which shall be measured quarterly.
ARTICLE 7
NEGATIVE COVENANTS OF BORROWER
Borrower hereby makes the following negative covenants to Bank:
7.1 Liens and Encumbrances. Borrower will not, except as
permitted or contemplated by this Agreement and the Loan Documents, create,
incur, assume or suffer to exit any mortgage, deed of trust, pledge, lien,
security interest, or other charge or encumbrance of any nature on any of the
assets pledged as security to Bank, or assign or otherwise convey any rights to
receive income (or give its consent to the subordination of any right) or claim
of Borrower and right or claim of any other person. Excluded, however, from
the operation of the foregoing are liens for taxes or other assessments or
other governmental charges to the extent not required to be paid by this
Agreement, liens arising in the ordinary course of business for sums not due or
sums being contested in good faith by appropriate proceedings, and current
taxes which are not delinquent or taxes which are being contested in good faith
by appropriate proceedings.
7.2 Indebtedness. Borrower will not incur, create, or assume any
indebtedness or liability on account of deposits or advances or
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any indebtedness for borrowed money, or any other indebtedness or liability
evidenced by notes, bonds, debentures, or similar obligations, except
indebtedness evidenced by the Notes, except indebtedness arising out of the
Loan Documents, except trade accounts payable which are incurred in the
ordinary course of Borrower's business, except upon prior written approval of
Bank, which such approval will be unreasonably withheld.
7.3 Guarantees and Contingent Liabilities. Borrower will not
assume, guarantee, endorse, or otherwise become directly or contingently liable
in connection with any obligations of any other person or entity, except the
endorsement of negotiable instruments by Borrower for deposit or collection or
similar transactions in the ordinary course of business, and except upon prior
written approval of Bank.
7.4 Leases. Borrower will not enter into or otherwise become
obligated under any leases with respect to real property as lessor or Lessee,
or with respect to personal property as lessor, without prior written approval
of Bank.
7.5 Investments. Except for Borrower's investment interest in
Transcrypt Europe not to exceed $200,000, Borrower will not purchase or hold
beneficially any stock or other securities or evidences of indebtedness of, make
or permit to exist any Loans or advances to, or make any investment or acquire
any interest whatsoever in, any person or entity without the prior written
approval of Bank.
7.6 Distribution to Partners. Borrower shall notify Bank of any
partnership or other distributions to any of the Partners.
7.7 Sale of Assets. Borrower will not sell, lease, assign,
transfer, or otherwise dispose of any of its assets without the prior written
consent of Bank, except sales and leases in the ordinary course of business of
Borrower, or Borrower's surplus, obsolete, or worn-out properties.
7.8 Consolidation and Merger. Borrower will not consolidate with
or merge into any entity, or permit any entity to merge into or acquire (in a
transaction analogous in purpose or effect to a consolidation or merger) all or
substantially all of the assets of Borrower without the prior written consent
of Bank.
7.9 Loans and Advances to Partners and Others. Borrower will not
make any loans or advances to or for the benefit of its General Partner, any of
its Limited Partners, or any officer, director, or shareholder of its General
Partner or any of its Limited Partners, except upon the prior written approval
of the Bank.
7.10 Ownership and Management. Xxxx X. Xxxxxx shall remain active
in the business operations of Borrower. Borrower shall
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notify Bank of any changes in the senior or executive management of Borrower.
7.11 Restriction on Nature of Business. Borrower will not engage
in any line of business materially different from that currently engage in by
Borrower without the prior written approval of Bank.
ARTICLE 8
DEFAULT, RIGHTS AND REMEDIES
8.1 Events of Default. Each of the following shall constitute an
Event of Default under this Agreement:
(a) Default in the payment of any principal or interest
on the Operating Note when due or upon demand upon
ten (10) days' written notice to Borrower;
(b) Default in the payment of any principal or interest
on the First Term Note when due upon ten (10) days'
written notice to Borrower;
(c) Default in the payment of any principal or interest
on the Second Term Note when due upon ten (10) days'
written notice to Borrower;
(d) Any default in the payment or performance of any
obligation under any of the Loan Documents which is
not cured within thirty (30) days after written
notice by Bank specifying the default(s) asserted by
Bank;
(e) Any default under the terms of the Bond Documents;
(f) In the event any representation, warranty, or
covenant made by Borrower and/or Guarantors in this
Agreement or in any of the other Loan Documents shall
prove to have been incorrect in any material respect
which is not cured within thirty (30) days after
written notice by Bank specifying the default(s)
asserted by Bank;
(g) In the event of any breach of any of the
representations, affirmative covenants, or negative
covenants made by Borrower and/or Guarantors under
this Agreement or under any of the other Loan
Documents which is not cured by Borrower within
thirty (30) days after written notice by Bank
specifying the default(s) asserted by Bank;
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(h) In the event Borrower or any Guarantor shall be
adjudicated a bankruptcy or insolvent, or admit in
writing their inability to pay debts as they mature,
or make an assignment for the benefit of creditors;
or in the event Borrower or any Guarantor shall apply
for or consent to the appointment of any receiver,
trustee, or similar officer for all or any
substantial part of their property; or in the event
such receiver, trustee, or similar officer shall be
appointed without the application or consent of such
Borrower or Guarantor and such appointment shall
continue undischarged for a period of sixty (60)
days; or in the event Borrower or Guarantor shall
institute (by petition, application, answer, consent,
or otherwise) any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt,
dissolution, liquidation, or similar proceeding
relating to any of them under the United States
Bankruptcy Code or the laws of any jurisdiction or in
the event any such proceeding shall be instituted
against Borrower or any Guarantor and shall remain
undismissed for a period of sixty (60) days (or in
the event any judgment, writ, warrant of attachment
or execution, or similar process shall be entered,
issued, or levied against a substantial part of the
property of Borrower or any Guarantor, and such
judgment, writ, or similar process shall not be
satisfied, released, stayed, vacated, or fully bonded
within thirty (30) days after its issue or levy;
(i) In the event any of the Guarantors should revoke or
attempt to revoke its, his, or her Guaranty in
writing, or fail to perform any obligation under such
Guaranty, or commence any action challenging the
validity or enforceability of such Guaranty;
(j) In the event of any voluntary or involuntary
corporate dissolution of any Guarantor which is a
corporation;
(k) In the event of any final and unappealed suspension
or revocation of any license or other authority
necessary for Borrower to transact business in
substantially the same manner as such business is
currently being transacted;
(l) In the event of any default under the Trust Deed in
favor of Bank relating to the real property described
in Exhibit "A" attached to this Agreement;
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(m) In the event any extraordinary situation or event
shall occur which, in the reasonable determination of
Bank has or will have a significant financial impact
on Borrower and which gives Bank reasonable ground to
believe that Borrower will not be able to perform in
the normal course its obligations under the Loan
Documents and such situation or event is not cured or
corrected within ten (10) days after notice by Bank
specifying the situation or event asserted by Bank;
(n) In the event any Guarantor assigns, pledges, or
grants a security interest to any third party in
their partnership interest in Borrower or in the
event any third party executes or levies against any
Guarantor's Partnership interest in Borrower;
(o) In the event any third party executes or levies
against the real property described in Exhibit "A"
attached to this Agreement or in the event any real
estate taxes or assessments relating to said real
property are not paid before same becomes delinquent;
and
(p) In the event the sale of Borrower's existing business
facility in Lincoln, Nebraska, is not closed by
July 31, 1994.
8.2 Rights and Remedies Upon Event of Default. Upon the
occurrence of any Event of Default, or at any time thereafter, Bank shall have
and may exercise any or all of the following rights and remedies, which such
rights and remedies shall be cumulative:
(a) Bank may, without notice to Borrower, declare any
obligation to make Advances under the Operating Note
to be immediately terminated, whereupon such
obligations shall immediately terminate;
(b) Bank may, without notice to Borrower, declare the
entire unpaid principal balance of the Notes then
outstanding, and all interest accrued and unpaid
thereon, and all other amounts payable under this
Agreement and the other Loan Documents to be
immediately due and payable, whereupon all such debts
and obligations shall become immediately due and
payable without presentment, demand, protest, or
further notice of any kind, all of which are hereby
expressly waived by Borrower and Guarantors;
(c) Bank may, without notice to Borrower, and without
further action, charge or set off as to any account
of Borrower now or hereafter maintained at Bank any
-22-
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and all debts and obligations owing by Borrower to
Bank. Borrower hereby specifically authorizes said
charges or set-offs;
(d) Bank may exercise and enforce any of its rights and
remedies under the Loan Documents;
(e) Bank may exercise any and all of its rights and
remedies against. one or more of the Guarantors under
the Guaranties without first proceeding against
Borrower or any of its properties, and without being
required to proceed against all of the Guarantors;
and
(f) Bank may exercise any and all other rights and
remedies allowed by law.
ARTICLE 9
MISCELLANEOUS
9.1 No Waiver; Cumulative Remedies. No failure or delay on the
part of Bank exercising any right, power, or remedy under this Agreement or the
Loan Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right, power, or remedy preclude any other or
further exercise thereof or the exercise of any other right, power, or remedy.
All rights and remedies of Bank are cumulative and not exclusive of any
remedies provided by law.
9.2 Amendments, Et Cetera. No amendment, modification,
termination, or waiver of any provision of this Agreement or the other Loan
Documents, nor consent to any departure by Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed by Bank and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. This Agreement and the other
Loan Documents may not be amended, or any provision thereof modified or waived,
by reason of any course of dealing or by any statements or representations by
any officer or employee of Bank. No notice to or demand on Borrower or any
Guarantor in any case shall entitle Borrower or any Guarantor to any other or
further notice or demand in similar or other circumstances.
9.3 Addresses for Notices, Et Cetera. Except as otherwise
expressly provided herein, all notices, requests, demands, and other
communications provided for under this Agreement and under the other Loan
Documents shall be in writing and mailed or delivered to the applicable party
at the addresses indicated below:
If to Borrower or any Guarantor, at the addresses set forth in
Exhibit "B" attached to this Agreement.
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If to Bank:
Norwest Bank Nebraska, N.A.
0000 Xxxxxxx Xxxxxx
P. 0. Xxx 0000
Xxxxx, XX 00000
Attention: J. Xxxxx Xxxxxx, Vice President
or, as to each party, at such other address as shall be designated by such
party in a written notice to each other party complying as to delivery with the
terms of this section. All such notices, requests, demands, other
communications to Borrower or Guarantors shall, when mailed, be effective when
deposited in the mails, addressed as aforesaid and, as to Bank, when received.
9.4 Costs and Expenses. Borrower agrees to pay on demand all
filing and recording fees, search fees, title insurance premiums, and other
closing costs and expenses of Bank in connection with the negotiation and
closing of the Loan Documents and agrees to pay the reasonable fees of counsel
for Bank incurred in connection with same. Borrower further agrees to pay all
costs and expenses, including attorney fees, incurred by Bank in connection
with the enforcement of this Agreement or the other Loan Documents.
9.5 Effectiveness of Agreement. The obligations of Bank and
Borrower under this Agreement shall be effective upon execution of this
Agreement by Bark and Borrower.
9.6 Binding Effect and Assignment. This Agreement shall be
binding upon and inure to the benefit of Borrower and Bank, and their
respective successors and assigns, including any subsequent holder or holders
of the Notes, except that Borrower may not assign or transfer their rights or
obligations under any of the Loan Documents without the prior written consent
of Bank.
9.7 Entire Agreement. This Agreement and the other Loan Documents
constitute the entire agreement between Borrower, Guarantors and Bank with
respect to the matters contained herein and therein.
9.8 Governing Law. This Agreement and the other loan Documents
shall be deemed to be contracts under the laws of the State of Nebraska and for
all purposes shall be construed in accordance with the laws of the State of
Nebraska.
9.9 Headings. Article and section headings used in this Agreement
are for convenience only and shall not affect the construction of this
Agreement.
9.10 Severability. The invalidity of any one or more phrases,
covenants, clauses, paragraphs, or sentences of this Agreement
-24-
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shall be construed as if such invalid phrases, covenants, clauses, paragraphs,
or sentences had not been inserted in this Agreement.
9.11 Conflict of Documents. To the extent the provisions of this
Agreement conflict with any of the provisions of any of the other Loan
Documents, the terms and provisions of this Agreement shall control, except to
the extent that the terms and provisions of any of the other loan documents
provide broader rights to the Bank.
Dated as of the day and year first above written.
NORWEST BANK NEBRASKA, TRANSCRYPT INTERNATIONAL, INC.,
NATIONAL ASSOCIATION
By: J. XXXXX XXXXXX By: XXXX X. XXXXXX
------------------------------ ------------------------------
Its: Vice President Its: Chairman
------------------------------ ------------------------------
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26
EXHIBIT A
Xxx 0, Xxxxxxxxx Xxxxxxxxx 0xx Xxxxxxxx, Xxxxxxx, Xxxxxxxxx Xxxxxx, Nebraska
27
EXHIBIT B
TRANSCRYPT INTERNATIONAL, LTD.
UNIT OWNERSHIP
The following table sets forth the Ownership of the outstanding Units
of the Company upon the closing of the January 1, 1994 transaction.
General Partner / Address Capital Contribution Units Owned Partnership Interest
------------------------- -------------------- ----------- --------------------
Transcrypt International, Inc. $50,000 50,000 1.00%
c/o Xxxx X. Xxxxxx
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Limited Partner / Address Capital Contribution Units Owned Partnership Interest
------------------------- -------------------- ----------- --------------------
CONNOR GROUP
Xxxx X. Xxxxxx $544,461 544,425 10.94226%
Transcrypt International, Inc.
0000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxxx 528,488 519,741 10.44614%
Transcrypt International, Inc.
0000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxx X. Xxxxxx III Trust 33,026 33,050 .66427%
0000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxxxx Xxx Xxxxxx Trust 33,026 33,050 .66427%
0000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
-------- --------- ----------
Connor Group Unit Sub-Total 1,130,266 22.71694%
FARM BUREAU GROUP
Farm Bureau Life Insurance 956,110 918,794 18.46661%
0000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
KUIJVENHOVEN GROUP
Xxxx Xxxxxxxxxxxx 247,416 247,417 4.97728%
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxxxxxxxx 247,416 247,416 4.97728%
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Q E Dot, Inc. 198,000 198,000 3.9795%
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
28
UNIT OWNERSHIP Page Two
KUIJVENHOVEN GROUP (continued)
Xxx Xxxxx Xxxxxxxxxxxx 33,056 33,056 .66438%
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxxx Xxxxxxxxxxxx 33,056 33,056 .66438%
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxxxxx Xxxxxxxx 33,056 33,056 .66438%
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 _________________________________________________
Kuijvenhoven Group Unit Sub-Total 792,000 15.9272%
UNIVERSITY GROUP
University of Nebraska Foundation 767,250 767,250 15.42077%
0000 Xxxxxxx Xxxx, Xxxxx 000
Post Office Box 82555
Lincoln, Nebraska 68501-2555
XXXXX GROUP
Xxxxxx X. Xxxxx 287,309 284,156 5.71118%
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxxx 51,379 58,491 1.17560%
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Xxxxx X. Xxxxx 76,046 75,216 1.51175%
000 Xxxxx Xxxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxx III Trust 52,799 52,223 1.04962%
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxx Trust 52,799 52,223 1.04962%
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000 _________________________________________________
Xxxxx Group Unit Sub-Total 522,309 10.49777%
FIRST COMMERCE GROUP
First Commerce Bancshares, Inc. 495,000 495,000 9.94888%
NBC Center, 0xx Xxxxx
00xx & X Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
29
UNIT OWNERSHIP Page Three
SECURITY GROUP
Security Mutual Life Insurance 300,000 247,592 4.97629%
c/o Mr. Xxxxxx Xxxxxxx
President and COO
000 Xxxxxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
XXXXXXX GROUP
Xxxx and Xxxxxx Xxxxxxx 52,799 52,223 1.04962%
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
-----------------------------------------------------
TOTALS $5,080,250 4,975,434 100.00000%
=============================================================================================
30
Commercial Note
[LOGO - NORWEST BANKS]
Name Date
Transcrypt International, Ltd. June 1, 1995
Choose one of the following
[ ] On demand, or
[ X ] On May 1, 1996; or
[ ] _______________ After date:
for value received, the undersigned (if more than one, Norwest Bank Nebraska, National Association
jointly and severally) promise(s) to pay to the order of 0000 Xxxxxxx Xxxxxx
(the "Bank") at Xxxxx, Xxxxxxxx 00000
or at any other place designated at any time by the holder hereof, in lawful
money of the United States of America, the principal sum of ----------- One
Million One Hundred Thousand and No/100ths ------------------- Dollars
($1,100,000.00), or so much thereof as is disbursed and remains outstanding
hereunder on the due date hereof, as shown by the Bank's liability record or on
the reverse side hereof, as the case may be, together with interest (calculated
on the basis of actual days elapsed in a 360 day year) on the unpaid balance
hereof from the date hereof until this Note is fully paid, at the following
rate:
[ ] an annual rate of _____ % (herein the "Note Rate").
[ X ] an annual rate equal to 0.0% above the Base Rate from time to
time in effect, each change in the interest rate hereon to
become effective on the day the corresponding change in the
Base Rate becomes effective (the resulting rate is herein
referred to as the "Note Rate").
[ ] an annual rate which, for any particular month, shall be ____ %
above the Base Rate in effect on the ____ day of the
immediately preceding month (the resulting rate is herein
referred to as the "Note Rate").
[ ] an annual rate________________________________________________
______________________________________________________________
(herein the "Note Rate").
The unpaid balance and interest due on this Note at maturity (whether this Note
matures by demand, acceleration, or the lapse of time) shall bear interest
until paid at the rate of ____ % in excess of the Note Rate.
As used herein, "Base Rate" means the rate of interest established by:
[ ] ______________________ from time to time as its "base" or "prime" rate;
[ XX ] the "Bank" as its National Money Market Rate
If this [ ] is checked, and this Note has a variable rate of interest, the
Note Rate shall never be less than _____%
[ ] Interest shall be payable at maturity.
[ X ] Interest shall be payable Monthly commencing June 15, 1995 and
also on demand.
If interest hereon is not paid when due, or if any other indebtedness
of the undersigned to the Bank is not paid when due, or if a garnishment
summons or a writ of attachment is issued against or served upon the Bank for
the attachment of any property of the undersigned in the Bank's possession or
any indebtedness owing to the undersigned, or if the holder hereof shall at any
time in good faith believe that the prospect of due and punctual payment of
this Note is impaired, then, in any such event, the holder hereof may, at its
option, declare this Note to be immediately due and payable and thereupon this
Note shall be immediately due and payable, together with all unpaid interest
accrued hereon, without notice or demand; provided, however, that if this Note
is payable on demand, nothing herein contained shall preclude or limit the
holder hereof from demanding payment of this Note at any time and for any
reason, without notice. If this Note is not paid when due (whether at maturity
or upon acceleration or demand), the Bank shall also have the right to set off
the indebtedness evidenced by this Note against any indebtedness of Bank to the
undersigned. This Note shall also become automatically due and payable
(including unpaid interest accrued thereon) without notice or demand should the
undersigned die (an individual) or should a petition be filed by or against the
undersigned under the United States Bankruptcy Code.
Unless prohibited by law, the undersigned agree(s) to pay all costs of
collection, including reasonable attorneys' fees and legal expenses, incurred
by the holder hereof in the event this Note is not duly paid. The holder
hereof may at any time renew this Note or extend its maturity date for any
period and release any security for, or any party to, this Note, all without
notice to or consent of and without releasing any accommodation maker, endorser
or guarantor from liability on this Note. Presentment or other demand for
payment, notice of dishonor and protest are hereby waived by the undersigned
and each endorser and guarantor. The undersigned agree(s) that each provision
whose box is checked is part of this Note. This Note shall be governed by the
substantive laws of the State named as part of the Bank's address above.
[ X ] This note is secured. [ X ] This Note evidences
[ ] This note is unsecured. indebtedness under a
revolving credit facility.
Purpose of loan
General Business Purposes TRANSCRYPT INTERNATIONAL, LTD.: Debtor
By: Transcrypt International, Inc.,
General Partner
Address Signature
0000 XX 0xx Xxxxxx X XXXX X. XXXXXX
Xxxx X. Xxxxxx, Chairman
City State and Zip Signature
Xxxxxxx, XX 00000
31
AMENDMENT TO OPERATING NOTE
Effective Date: April 9, 1996 Note Number: 78452
The "Operating Note" dated June 1, 1995 in the face amount of One
Million One Hundred Thousand and no/100 Dollars ($1,100,000.00) by and between
TRANSCRYPT INTERNATIONAL, LTD., ("Borrower"), and NORWEST BANK NEBRASKA,
NATIONAL ASSOCIATION ("Bank"), is hereby modified as follows as agreed by the
Borrower:
1. By an increase in the principal amount from One Million One
Hundred Thousand and no/100 Dollars ($1,100,000.00) to Two
Million Dollars ($2,000,000.00).
Except as modified above, the "Operating Note" is in all respects
ratified and confirmed by the Borrower. The Borrower also agrees that the
"Operating Note has no principal outstanding as of April 9, 1996.
TRANSCRYPT INTERNATIONAL, LTD.
By: Transcrypt International, Inc.
Its: General Partner
By: Xxxx X. Xxxxxx
------------------------------------
Xxxx X. xxxxxx
Its: Chairman and CEO
-----------------------------------
NORWEST BANK NEBRASKA, NATIONAL
ASSOCIATION
By: Xxxx Xxxxx
-----------------------------------
Xxxx Xxxxx
Its: Vice President
-----------------------------------
