LOAN AGREEMENT
[BANK
OF AMERICA]
This
Agreement dated as of September 18, 2007, is among Bank of America, N.A. (the
"Bank"), Air T, Inc.; Csa Air, Inc.; Mountain Air Cargo, Inc.; MAC Aviation
Services LLC; Global Ground Support, LLC and Global Aviation Services, LLC;
are
sometimes referred to collectively as the "Borrowers" and individually as the
“Borrower”).
1. DEFINITIONS
In
addition to the terms which are defined elsewhere in this Agreement, the
following terms have the meanings indicated for the purposes of this
Agreement:
1.1 "Borrowing
Base" means the sum of:
(a) 85%
of the Prime Government Receivables; and
(b) 85%
Commercial Receivables; and
(c)
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50%
of the Unbilled Receivables; and
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(d)
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The
lesser of Two Million Five Hundred Thousand and 00/100 Dollars
($2,500,000.00) or a percentage of the value of Eligible Inventory
calculated by adding together:
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(i)
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50%
of the value of Eligible Inventory consisting of raw materials;
and
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(ii)
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40%
of the value of Eligible Inventory consisting of finished
goods.
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(e)
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less
the amount of the letters of credit outstanding at any one time (including
the drawn and unreimbursed amounts of the letters of
credit).
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In
determining the value of Eligible Inventory to be included in the Borrowing
Base, the Bank will use the lowest of (i) the Borrower's cost, (ii) the
Borrower's estimated market value, or (iii) the Bank's independent determination
of the resale value of such inventory in such quantities and on such terms
as
the Bank deems appropriate.
After
calculating the Borrowing Base as provided above, the Bank may deduct such
reserves as the Bank may establish from time to time in its reasonable credit
judgment, including, without limitation, reserves for rent at leased locations
subject to statutory or contractual landlord’s liens, inventory shrinkage,
dilution, customs charges, warehousemen’s or bailees’ charges, liabilities to
growers of agricultural products which are entitled to lien rights under the
federal Perishable Agricultural Commodities Act or any applicable state law,
and
the amount of estimated maximum exposure, as determined by the Bank from time
to
time, under any interest rate contracts which the Borrower enters into with
the
Bank (including interest rate swaps, caps, floors, options thereon, combinations
thereof, or similar contracts). In addition to the foregoing, the
Bank may deduct from the Borrowing Base two (2) times the monthly rent/lease
payment for the leased property located at 000 Xxxx 00 Xxxxxxx, Xxxxxx, Xxxxxx,
if the principal amount outstanding under the Facility No. 1 commitment exceeds
70% of the Borrowing Base for any ninety (90) day period.
1.2
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"Borrowing
Base Certificate" means a report in the format shown as Exhibit A,
calculated by the Borrower and setting forth the Borrowing Base on
which
the requested extension of credit is to be
based.
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1.3
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"Credit
Limit" means the amount of Seven Million and 00/100 Dollars
($7,000,000.00).
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1.4
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"Eligible
Inventory" means inventory which satisfies the following
requirements:
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(a) The
inventory is owned by the Borrower free of any title defects or any liens or
interests of others except thesecurity interest in favor of the
Bank. This does not prohibit any statutory liens which may exist in
favor of thegrowers of agricultural products which are purchased by the
Borrower.
(b)
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The
inventory is located at locations which the Borrower has disclosed
to the
Bank and which are acceptable to the Bank. If the inventory is
covered by a negotiable document of title (such as a warehouse receipt)
that document must be delivered to the Bank. Inventory which is
in transit is not acceptable unless it is covered by a commercial
letter
of credit issued by the Bank, the seller of the inventory is required
to
present shipping or title documents to the Bank as a condition to
obtaining payment, and the final destination of such inventory is
a
location acceptable to the Bank.
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(c)
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The
inventory is held for sale or use in the ordinary course of the Borrower's
business and is of good and merchantable quality. Display
items, work-in-process, parts, samples, and packing and shipping
materials
are not acceptable. Inventory which is obsolete, unsalable,
damaged, defective, used, discontinued or slow-moving, or which has
been
returned by the buyer, is not
acceptable.
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(d)
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The
inventory is covered by insurance as required in the "Covenants"
section
of this Agreement.
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(e)
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The
inventory has not been manufactured to the specifications of a particular
account debtor.
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(f)
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The
inventory is not subject to any licensing agreements which would
prohibit
or restrict in any way the ability of the Bank to sell the inventory
to
third parties.
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(g)
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The
inventory has been produced in compliance with the requirements of
the
U.S. Fair Labor Standards Act (29 U.S.C. §§201 et
seq.).
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(h)
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The
inventory is not placed on
consignment.
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(i) The
inventory is otherwise acceptable to the Bank.
1.6 "Eligible
Receivables" means an account receivable that satisfies the following
requirements:
(a)
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The
account is based upon an enforceable order or contract, written or
oral,
for inventory shipped or for services performed and the same were
shipped
or performed by the Borrower in accordance with such order or contract
and
in the ordinary course of the Borrower's business and without any
further
obligation on the part of the Borrower to service, repair, or maintain
any
such goods sold and does not relate to any warranty claim or
obligation.
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(b)
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There
are no conditions which must be satisfied before the Borrower is
entitled
to receive payment of the account. Accounts arising from COD
sales, consignments, xxxx and hold sales, sale or return, guaranteed
sales
or on the basis of any other understanding are not
acceptable.
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(c)
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The
debtor upon the account does not claim any present or contingent
(and no
fact exists which is the basis for any future) claim, deduction or
dispute
or defense in law or equity to payment of the
account.
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(d)
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The
account balance does not include the amount of any counterclaims,
offsets,
claims for credits, allowances, or adjustments because of returned,
inferior, or damaged inventory or unsatisfactory services, or for
any
other reason including, without limitation, those arising on account
of a
breach of any express or implied representation or warranty which
have
been or may be asserted against the Borrower by the account debtor
(including offsets for any "contra accounts" owed by the Borrower
to the
account debtor for goods purchased by the Borrower or for services
performed for the Borrower). To the extent any counterclaims,
offsets, or contra accounts exist in favor of the account debtor,
such
amounts shall be deducted from the account
balance.
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(e)
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Except
for Unbilled Receivables, the account is evidenced by an invoice
or other
documentation in form acceptable to the Bank, dated no later than
the date
of shipment or performance and containing only terms normally offered
by
the Borrower.
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(f)
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The
amount shown on the books of the Borrower and on any invoice, certificate,
schedule or statement delivered to the Bank is owing to such Borrower
and
no partial payment has been received unless reflected with that
delivery.
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(g)
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The
account represents a genuine obligation of the account debtor for
goods
sold to and accepted by the account debtor, or for services performed
for
and accepted by the account debtor. To the extent any credit
balances exist in favor of the account debtor, such credit balances
represent customary credits, adjustments and/or discounts given to
an
account debtor by the Borrower in the ordinary course of its business
and
shall be deducted from the account
balance.
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(h)
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The
account balance does not arise from services under or related to
any
warranty obligation of the Borrower or out of any finance charges,
services charges or other fees for the time value of money, payable
by the
account debtor. To the extent any such charges are included,
such amounts shall be deducted from the account
balance.
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(i)
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With
respect to Commercial Receivables only, the Borrower is not prohibited
by
the laws of the state where the account debtor is located from bringing
an
action in the courts of that state to enforce the account debtor's
obligation to pay the account. The Borrower has taken all
appropriate actions to ensure access to the courts of the state where
the
account debtor is located, including, where necessary, the filing
of a
Notice of Business Activities Report or other similar filing with
the
applicable state agency or the qualification by the Borrower as a
foreign
corporation authorized to transact business in such
state.
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(j)
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The
account is owned by the Borrower free of any title defects or any
liens or
interests of others except the security interest in favor of the
Bank. The Borrower has the full and unqualified right and power
to assign and grant a security interest in, and lien on, the account
to
the Bank as security and collateral for the payment of the obligations
under this Agreement, which lien is perfected as to the account by
the
filing of financing statements and which lien upon such filing constitutes
a first priority security interest and
lien.
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(k) The
account debtor upon the account is not any of the following:
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(i)
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An
employee, affiliate, parent or subsidiary of the Borrower, or an
entity
which has common officers or directors with the
Borrower.
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(ii)
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Any
person or entity located, incorporated or primarily conducting business
in
a foreign country.
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(iii)
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The
U.S. government or any agency or department of the U.S. government
unless
the Bank agrees in writing to accept the obligation, the Borrower complies
with the procedures in the Federal Assignment of Claims Act of 1940
(41
U.S.C. § 15) with respect to the obligation, and the underlying contract
expressly provides that neither the U.S. government nor any agency
or
department thereof shall have the right of set-off against the
Borrower.
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(l) The
account is not in default. An account will be considered in default
if any of the following occur:
(m) the
account is not paid within sixty (60) days from its due date;
(ii) the
account debtor obligated upon the account suspends business, makes a general
assignment for the benefit of creditors, fails to pay its debts generally as
they come due, or any petition is filed by or against the account debtor
obligated upon the account under any bankruptcy law or any other law or laws
for
the relief of debtors in the United States, any state or territory thereof,
or
any foreign jurisdiction;
(iii) there
is an appointment of a receiver or trustee for the account debtor or for any
of
the assets of the account debtor, including, without limitation, the appointment
of or taking possession by a “custodian,” as defined in the Federal Bankruptcy
Code;
(iv) the
initiation by or against the account debtor of any other type of any formal
or
informal proceeding for the insolvency, dissolution or liquidation of,
settlement of claims against, or winding up of affairs of, the account
debtor;
(v) the
death or judicial declaration of incompetency of an account debtor who is an
individual;
(vi) the
sale, assignment, or transfer of all or any material part of the assets of
the
account debtor.
(n) The
account is not owing by any account debtor for which the Bank has deemed fifty
percent (50%) or more of such account debtor's other accounts (or any portion
thereof) due to the Borrower, to be non-Eligible Receivables.
(o)
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The
account does not arise from the sale of goods which remain in the
Borrower's possession or under the Borrower's
control.
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(p)
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The
account is not evidenced by a promissory note or chattel paper, is
not
secured by any letter of credit nor is the account debtor obligated
to the
Borrower under any other obligation which is evidenced by a promissory
note.
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(q)
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No
bond or other undertaking by a guarantor or surety has been or is
required
to be obtained, supporting the performance of the Borrower or any
other
Obligor in respect of the Borrower’s agreements with the account
debtor.
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(r)
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The
account is not subject to a restriction that forbids or makes void
or
unenforceable the assignment or grant of a security interest by the
Borrower to the Bank, unless the Borrower has obtained any necessary
consents.
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(s)
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No
part of the account represents a final billing or a
retainage.
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(t)
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The
Bank in the good faith exercise of its sole and absolute discretion
has
not deemed the account ineligible because of uncertainty as to the
creditworthiness of the account debtor or because the Bank otherwise
considers the collateral value of such account to the Bank to be
impaired
or its ability to realize such value to be
insecure.
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(u)
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The
account is otherwise acceptable to the
Bank.
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In
addition to the foregoing limitations, the dollar amount of accounts included
as
Eligible Receivables which are the obligations of a single account debtor
(excluding accounts from any governmental authority) shall not exceed the
concentration limit established for that account debtor. To the
extent the total of such accounts exceeds an account debtor's concentration
limit, the amount of any such excess shall be excluded. The
concentration limit for each account debtor shall be equal to twenty-five
percent (25%) of the total amount of the Borrower's Eligible Receivables at
that
time.
It
is
provided, however, that if the account debtor obligated upon an account is
one
of the account debtors listed below, the concentration limit applicable to
each
such account debtor will be increased to the percentage set forth
below:
Account
Debtor Concentration
Limit
Federal
Express 40%
United
States Air
Force 40%
1.7 "Unbilled
Receivables" means Eligible Receivables, notwithstanding their unbilled
status which have resulted from unbilled costs actually incurred and arising
out
of work actually performed during the last week of the most previous month
by
the Borrower under written contracts with Federal Express which (i) have been
accepted by Federal Express and (ii) are properly billable to Federal Express
in
accordance with the applicable contract.
1.8 "Prime
Government Receivables" means Eligible Receivables which have resulted from
an amount due and owing directly from the U.S. Government or any department
or
agency thereof.
1.9 "Commercial
Receivables" means Eligible Receivables other than Prime Government
Receivables, Sub Contractor or Other Government Receivables, or Unbilled
Receivables which have resulted from an amount due owing from account
debtors.
2. FACILITY
NO. 1: LINE OF CREDIT AMOUNT AND TERMS
2.1 Line
of Credit Amount.
(a)
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During
the availability period described below, the Bank will provide a
line of
credit to the Borrowers. The amount of the line of credit (the
"Facility No. 1 Commitment") is equal to the lesser of (i) the Credit
Limit or (ii) the Borrowing Base.
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(b)
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This
is a revolving line of credit. During the availability period,
the Borrowers may repay principal amounts and reborrow
them.
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(c)
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The
Borrowers agree not to permit the principal balance outstanding to
exceed
the Facility No. 1 Commitment. If the Borrowers exceed this
limit, the Borrowers will immediately pay the excess to the Bank
upon the
Bank's demand.
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2.2 Availability
Period. The line of credit is available between the date of this
Agreement and August 31, 2009, or such earlier date as the availability may
terminate as provided in this Agreement (the "Facility No. 1 Expiration
Date").
The
availability period for this line of credit will be considered renewed if and
only if the Bank has sent to the Borrowers a written notice of renewal effective
as of the Facility No. 1 Expiration Date for the line of credit (the “Renewal
Notice”). If this line of credit is renewed, it will continue to be
subject to all the terms and conditions set forth in this Agreement except
as
modified by the Renewal Notice. The Borrower specifically understands
and agrees that the interest rate applicable to this line of credit may be
increased upon renewal and that the new interest rate will apply to the entire
outstanding principal balance of the line of credit. If this line of
credit is renewed, the term “Expiration Date” shall mean the date set forth in
the Renewal Notice as the Expiration Date and the same process for renewal
will
apply to any subsequent renewal of this line of credit. A renewal fee
may be charged at the Bank’s option. If so, the amount will be
specified in the Renewal Notice.
2.3 Repayment
Terms.
(a)
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The
Borrowers will pay interest on September 30, 2007, and then on the
same
day of each month thereafter until payment in full of any principal
outstanding under this facility.
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(b)
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The
Borrowers will repay in full any principal, interest or other charges
outstanding under this facility no later than the Facility No. 1
Expiration Date.
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2.4 Interest
Rate.
(a)
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The
interest rate is a rate per year equal to the BBA LIBOR Daily Floating
plus 1.37 percentage point(s).
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(b)
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The
BBA LIBOR Daily Floating Rate is a fluctuating rate of interest equal
to
the rate per annum equal to
the British
Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or
other commercially available source providing quotations of BBA LIBOR
as
selected by the Bank from time to time as determined for each
banking day at approximately 11:00 a.m. London time two (2) London
Banking
Days prior to the date in question, for U.S.
Dollar
deposits (for delivery on the first day of such interest period)
with a
one month term, as adjusted from time to time in the Bank’s sole
discretion for reserve requirements, deposit insurance assessment
rates
and other regulatory costs. If such rate is not
available at
such time for any reason, then the rate for that interest period
will be determined by such alternate method as reasonably selected
by the
Bank. A "London Banking Day" is a day on which banks in London
are open for business and dealing in offshore
dollars.
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3. COLLATERAL
3.1 Personal
Property. The personal property listed below now owned or owned
in the future by the parties listed below will secure the Borrowers’ obligations
to the Bank under this Agreement. The collateral is further defined
in security agreement(s) executed by the owners of the collateral. In
addition, all personal property collateral owned by any of the Borrowers
securing this Agreement shall also secure all other present and future
obligations of any of the Borrowers to the Bank (excluding any consumer credit
covered by the federal Truth in Lending law, unless the Borrowers have otherwise
agreed in writing or received written notice thereof). All personal
property collateral securing any other present or future obligations of any
of
the Borrowers to the Bank shall also secure this Agreement.
(a)
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Equipment
owned by the Borrowers.
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(b)
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Inventory
owned by the Borrowers.
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(c)
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Receivables
owned by the Borrowers.
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(d)
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Transport
equipment including aircraft and
vehicles.
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4. FEES
AND EXPENSES
4.1 Fees.
(a)
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Waiver
Fee. If the Bank, at its discretion, agrees to waive or
amend any terms of this Agreement, the Borrowers will, at the Bank's
option, pay the Bank a fee for each waiver or amendment in an amount
advised by the Bank at the time the Borrowers request the waiver
or
amendment. Nothing in this paragraph shall imply that the Bank
is obligated to agree to any waiver or amendment requested by the
Borrowers. The Bank may impose additional requirements as a
condition to any waiver or
amendment.
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(b)
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Late
Fee. To the extent permitted by law, the Borrowers agree to
pay a late fee in an amount not to exceed four percent (4%) of any
payment
that is more than fifteen (15) days late. The imposition and
payment of a late fee shall not constitute a waiver of the Bank’s rights
with respect to the default.
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4.2 Expenses. The
Borrowers agree to immediately repay the Bank for expenses that include, but
are
not limited to, filing, recording and search fees, appraisal fees, title report
fees, and documentation fees.
4.3 Reimbursement
Costs.
(a)
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The
Borrowers agree to reimburse the Bank for any expenses it incurs
in the
preparation of this Agreement and any agreement or instrument required
by
this Agreement. Expenses include, but are not limited to,
reasonable attorneys' fees, including any allocated costs of the
Bank's
in-house counsel to the extent permitted by applicable
law.
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(b)
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The
Borrower agrees to reimburse the Bank for the cost of periodic field
examinations of the Borrower's books, records and collateral, and
appraisals of the collateral, at such intervals as the Bank may reasonably
require. The actions described in this paragraph may be
performed by employees of the Bank or by independent
appraisers.
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5. DISBURSEMENTS,
PAYMENTS AND COSTS
5.1 Disbursements
and Payments.
(a)
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Each
payment by the Borrowers will be made in U.S. Dollars and immediately
available funds by direct debit to a deposit account as specified
below
or, for payments not required to be made by direct debit, by mail
to the
address shown on the Borrowers' statement or at one of the Bank’s banking
centers in the United States.
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(b)
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Each
disbursement by the Bank and each payment by the Borrowers will be
evidenced by records kept by the Bank. In addition, the Bank
may, at its discretion, require the Borrowers to sign one or more
promissory notes.
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5.2 Requests
for Credit; Equal Access by all Borrowers. If there is more than
one Borrower, any Borrower (or a person or persons authorized by any one of
the
Borrowers), acting alone, can borrow up to the full amount of credit provided
under this Agreement. Each Borrower will be liable for all extensions
of credit made under this Agreement to any other Borrower.
5.3 Telephone
and Telefax Authorization.
(a)
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The
Bank may honor telephone or telefax instructions for advances or
repayments given, or purported to be given, by any one of the individuals
authorized to sign loan agreements on behalf of any of the Borrowers,
or
any other individual designated by any one of such authorized
signers.
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(b)
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Advances
will be deposited in and repayments will be withdrawn from account
number
NC-000510028053 owned by the Borrowers or such other of the Borrowers'
accounts with the Bank as designated in writing by the
Borrowers.
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(c)
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The
Borrowers will indemnify and hold the Bank harmless from all liability,
loss, and costs in connection with any act resulting from telephone
or
telefax instructions the Bank reasonably believes are made by any
individual authorized by the Borrowers to give such
instructions. This paragraph will survive this Agreement's
termination, and will benefit the Bank and its officers, employees,
and
agents.
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5.4 Direct
Debit.
(a)
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The
Borrowers agree that interest and principal payments and any fees
will be
deducted automatically on the due date from account number NC-000510028053
owned by the Borrowers or such other of the Borrowers' accounts with
the
Bank as designated in writing by the
Borrowers.
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(b)
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The
Borrowers will maintain sufficient funds in the account on the dates
the
Bank enters debits authorized by this Agreement. If there are
insufficient funds in the account on the date the Bank enters any
debit
authorized by this Agreement, the Bank may reverse the
debit.
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(c)
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The
Borrowers may terminate this direct debit arrangement at any time
by
sending written notice to the Bank at the address specified at the
end of
this Agreement. If the Borrowers terminate this arrangement,
then the principal amount outstanding under this Agreement will at
the
option of the Bank bear interest at a rate per annum which is 0.5
percentage point(s) higher than the rate of interest otherwise provided
under this Agreement.
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5.5 Banking
Days. Unless otherwise provided in this
Agreement, a banking day is a day other than a Saturday, Sunday or other day
on
which commercial banks are authorized to close, or are in fact closed, in the
state where the Bank's lending office is located, and, if such day relates
to
amounts bearing interest at an offshore rate (if any), means any such day on
which dealings in dollar deposits are conducted among banks in the offshore
dollar interbank market. All payments and disbursements which would
be due on a day which is not a banking day will be due on the next banking
day. All payments received on a day which is not a banking day will
be applied to the credit on the next banking day.
5.6 Interest
Calculation. Except as otherwise stated in this Agreement, all
interest and fees, if any, will be computed on the basis of a 360-day year
and
the actual number of days elapsed. This results in more interest or a
higher fee than if a 365-day year is used. Installments of principal
which are not paid when due under this Agreement shall continue to bear interest
until paid.
5.7 Default
Rate. Upon the occurrence of any default or after maturity or
after judgement has been rendered on any obligation under this Agreement, all
amounts outstanding under this Agreement, including any interest, fees, or
costs
which are not paid when due, will at the option of the Bank bear interest at
a
rate which is 6.0 percentage point(s) higher than the rate of interest otherwise
provided under this Agreement. This may result in compounding of
interest. This will not constitute a waiver of any
default.
5.8 Overdrafts. At
the Bank's sole option in each instance, the Bank may do one of the
following:
(a)
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The
Bank may make advances under this Agreement to prevent or cover an
overdraft on any account of any Borrower with the Bank. Each
such advance will accrue interest from the date of the advance or
the date
on which the account is overdrawn, whichever occurs first, at the
interest
rate described in this Agreement. The Bank may make such
advances even if the advances may cause any credit limit under this
Agreement to be exceeded.
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(b)
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The
Bank may reduce the amount of credit otherwise available under this
Agreement by the amount of any overdraft on any account of any Borrower
with the Bank.
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This
paragraph shall not be deemed to authorize the Borrowers to create overdrafts
on
any of the Borrowers' accounts with the Bank.
5.9 Payments
in Kind. If the Bank requires delivery in kind of the proceeds of
collection of the Borrowers' accounts receivable, such proceeds shall be
credited to interest, principal, and other sums owed to the Bank under this
Agreement in the order and proportion determined by the Bank in its sole
discretion. All such credits will be conditioned upon collection and
any returned items may, at the Bank's option, be charged to the
Borrowers.
6. CONDITIONS
Before
the Bank is required to extend any credit to the Borrowers under this Agreement,
it must receive any documents and other items it may reasonably require, in
form
and content acceptable to the Bank, including any items specifically listed
below.
6.1 Authorizations. If
any Borrower or any guarantor is anything other than a natural person, evidence
that the execution, delivery and performance by such Borrower and/or such
guarantor of this Agreement and any instrument or agreement required under
this
Agreement have been duly authorized.
6.2 Governing
Documents. If required by the Bank, a copy of the Borrowers'
organizational documents.
6.3 Security
Agreements. Signed original security agreements covering the
personal property collateral which the Bank requires.
6.4 Perfection
and Evidence of Priority. Evidence that the security interests and liens in
favor of the Bank are valid, enforceable, properly perfected in a manner
acceptable to the Bank and prior to all others' rights and interests, except
those the Bank consents to in writing. All title documents for motor
vehicles which are part of the collateral must show the Bank's
interest.
6.5 Payment
of Fees. Payment of all fees and other amounts due and owing to
the Bank, including without limitation payment of all accrued and unpaid
expenses incurred by the Bank as required by the paragraph entitled
"Reimbursement Costs."
6.6 Good
Standing. Certificates of good standing for each Borrower as
applicable from its state of formation and from any other state in which such
Borrowers is required to qualify to conduct its
business.
6.7 Insurance. Evidence
of insurance coverage, as required in the "Covenants" section of this
Agreement.
7. REPRESENTATIONS
AND WARRANTIES
When
the
Borrowers sign this Agreement, and until the Bank is repaid in full, the
Borrowers make the following representations and warranties. Each
request for an extension of credit constitutes a renewal of these
representations and warranties as of the date of the request:
7.1 Formation. If
any Borrower is anything other than a natural person, it is duly formed and
existing under the laws of the state or other jurisdiction where
organized.
7.2 Authorization. This
Agreement, and any instrument or agreement required hereunder, are within each
Borrower's powers, have been duly authorized, and do not conflict with any
of
its organizational papers.
7.3 Enforceable
Agreement. This Agreement is a legal, valid and binding agreement
of each Borrower, enforceable against each Borrower in accordance with its
terms, and any instrument or agreement required hereunder, when executed and
delivered, will be similarly legal, valid, binding and enforceable.
7.4 Good
Standing. In each state in which each Borrower does business, it
is properly licensed, in good standing, and, where required, in compliance
with
fictitious name statutes.
7.5 No
Conflicts. This Agreement does not conflict with any law,
agreement, or obligation by which any Borrower is bound.
7.6 Financial
Information. All financial and other information that has been or
will be supplied to the Bank is sufficiently complete to give the Bank accurate
knowledge of the Borrowers' (and any guarantor's) financial condition, including
all material contingent liabilities. Since the date of the most
recent financial statement provided to the Bank, there has been no material
adverse change in the business condition (financial or otherwise), operations,
properties or prospects of any Borrower (or any guarantor). If any
Borrower is comprised of the trustees of a trust, the foregoing representations
shall also pertain to the trustor(s) of the trust.
7.7 Lawsuits. There
is no lawsuit, tax claim or other dispute pending or threatened against any
Borrower which, if lost, would impair such Borrower’s financial condition or
ability to repay the loan, except as have been disclosed in writing to the
Bank.
7.8 Collateral. All
collateral required in this Agreement is owned by the grantor of the security
interest free of any title defects or any liens or interests of others, except
those which have been approved by the Bank in writing.
7.9 Permits,
Franchises. Each Borrower possesses all permits, memberships,
franchises, contracts and licenses required and all trademark rights, trade
name
rights, patent rights, copyrights and fictitious name rights necessary to enable
it to conduct the business in which it is now engaged.
7.10 Other
Obligations. No Borrower is in default on any obligation for
borrowed money, any purchase money obligation or any other material lease,
commitment, contract, instrument or obligation, except as have been disclosed
in
writing to the Bank.
7.11 Tax
Matters. No Borrower has any knowledge of any pending assessments
or adjustments of its income tax for any year and all taxes due have been paid,
except as have been disclosed in writing to the Bank.
7.12 No
Event of Default. There is no event which is, or with notice or
lapse of time or both would be, a default under this Agreement.
7.13 Insurance. Each
Borrower has obtained, and maintained in effect, the insurance coverage required
in the "Covenants" section of this Agreement.
7.14 Merchantable
Inventory; Compliance with FLSA. All inventory which is included
in the Borrowing Base is of good and merchantable quality and free from defects,
and has been produced in compliance with the requirements of the U.S. Fair
Labor
Standards Act (29 U.S.C. §§201 et seq.).
7.15 Prime
Government Receivables and Unbilled Receivables. With respect to
all Prime Government Receivables and Unbilled Receivables, to the best of the
Borrower’s knowledge (a) there has been no default or cancellation with respect
thereto, (b) Prime Government Receivables and Unbilled Receivables are not
dependent on any future appropriations, (c) the assignment of all sums due
thereunder does not violate any law, statute, or regulation and is permissible,
(d) the Borrower has the right to assign all monies due thereunder, (e) any
prior assignment with respect thereto have been terminated; and (f) the Borrower
is not subject to any pending or threatened debarment proceedings.
7.16 Assignment
of Claims Act. The Borrower hereby covenants and agrees that the
Borrower will promptly, upon request by the Bank, comply with any and all of
the
requirements of the Assignment of Claims Act (Title 31 Section 3727 and Title
00
Xxxxxxx 00 xx xxx Xxxxxx Xxxxxx Code), where such statutes are applicable to
any
Eligible Receivables, and shall take all such other action as may be necessary
to facilitate the direct assignment to the Bank of the payments due or to become
due under any Eligible Receivables which has at least One Million Dollars and
00/100 Dollars ($1,000,000.00) in payment obligations to the Borrower and which
has a duration of at least twelve (12) months, and such further action as may
be
necessary to facilitate the creation and perfection of the Bank’s security
interest in such payments..
8. COVENANTS
The
Borrowers agree, so long as credit is available under this Agreement and until
the Bank is repaid in full:
8.1 Use
of Proceeds.
(a)
|
To
use the proceeds of Facility No. 1 only for working
capital.
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(b)
|
The
proceeds of the credit extended under this Loan Agreement may not
be used
directly or indirectly to purchase or carry any "margin stock" as
that
term is defined in Regulation U of the Board of Governors of the
Federal
Reserve System, or extend credit to or invest in other parties for
the
purpose of purchasing or carrying any such "margin stock," or to
reduce or
retire any indebtedness incurred for such
purpose.
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8.2 Financial
Information. To provide the following financial information and
statements in form and content acceptable to the Bank, and such additional
information as requested by the Bank from time to time. The Bank
reserves the right, upon written notice to the Borrowers, to require the
Borrowers to deliver financial information and statements to the Bank more
frequently than otherwise provided below, and to use such additional information
and statements to measure any applicable financial covenants in this
Agreement.
(a)
|
Within
one hundred fifty (150) days of the fiscal year end, the annual financial
statements of the Borrowers. These financial statements must be
audited (with an opinion satisfactory to the Bank) by a Certified
Public
Accountant acceptable to the Bank. The statements shall be
prepared on a consolidated basis.
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(b)
|
Within
sixty (60) days of the period's end, quarterly financial statements
of the
Borrowers, certified and dated by an authorized financial
officer. These financial statements may be
company-prepared. The statements shall be prepared on a
consolidated basis.
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(c)
|
Within
150 days of the end of each fiscal
year and within 60 days of the
end of each quarter, a compliance certificate of the Borrower in
the
format as shown in Exhibit B, signed by an authorized financial officer
and setting forth whether there existed as of the date of such financial
statements and whether there exists as of the date of the certificate,
any
default under this Agreement and, if any such default exists, specifying
the nature thereof and the action the Borrower is taking and proposes
to
take with respect thereto.
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(d)
|
Upon
the Bank’s request, a detailed aging of the Borrower’s receivables by
invoice or a summary aging by account debtor as specified by the
Bank.
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(e) Upon
the Bank’s request, a Borrowing Base Certificate as of the last day of each
month. Bank mayalso request copies of the invoices or the record
of invoices from the Borrower's sales journal for EligibleReceivables included
in the Borrowing Base Certificate (including a listing of the names and
addresses of the account debtors obligated there under).
(f)
|
Upon
the Bank’s request, a summary aging by vendor of accounts payable as
specified by the Bank.
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(g)
|
Upon
the Bank’s request, an inventory listing as specified by the
Bank. The listing must include a description of the inventory,
its location and cost, and such other information as the Bank may
require.
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(h)
|
Promptly
upon the Bank's request, such other books, records, statements, lists
of
property and accounts, budgets, forecasts or reports as to the Borrowers
and as to each guarantor of the Borrowers' obligations to the Bank
as the
Bank may request.
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8.3 Debt
to Worth Ratio. To maintain on a consolidated basis a ratio of
Total Liabilities (excluding the non-current portion of Subordinated
Liabilities) to Tangible Net Worth not exceeding 1.5:1.0.
"Total
Liabilities" means the sum of current liabilities plus long term
liabilities.
"Tangible
Net Worth" means the value of total assets (including leaseholds and leasehold
improvements and reserves against assets but excluding goodwill, patents,
trademarks, trade names, organization expense, unamortized debt discount and
expense, capitalized or deferred research and development costs, deferred
marketing expenses, and other like intangibles, and monies due from affiliates,
officers, directors, employees, shareholders, members or managers) less total
liabilities, including but not limited to accrued and deferred income taxes,
but
excluding the non-current portion of Subordinated Liabilities.
"Subordinated
Liabilities" means liabilities subordinated to the Borrowers' obligations to
the
Bank in a manner acceptable to the Bank in its sole discretion.
8.4 Funded
Debt to EBITDA Ratio. To maintain on a consolidated basis a ratio
of Funded Debt to EBITDA not exceeding 3:1.0.
“Funded
Debt” means all outstanding liabilities for borrowed money and other
interest-bearing liabilities, including current long term debt, less the
non-current portion of Subordinated Liabilities.
''EBITDA''
means net income, less income or plus loss from discontinued operations and
extraordinary items, plus income taxes, plus interest expense, plus
depreciation, depletion, and amortization. This ratio will be
calculated at the end of each reporting period for which the Bank requires
financial statements, using the results of the twelve-month period ending with
that reporting period.
This
ratio will be calculated at the end of each reporting period for which the
Bank
requires financial statements, using the results of the twelve-month period
ending with that reporting period.
''Subordinated
Liabilities'' means liabilities subordinated to the Borrower's obligations
to
the Bank in a manner acceptable to the Bank in its sole discretion.
8.5 Bank
as Principal Depository. To maintain the Bank as their principal
depository bank, including for the maintenance of business, cash management,
operating and administrative deposit accounts.
8.6 Other
Debts. Not to have outstanding or incur any direct or contingent
liabilities or lease obligations (other than those to the Bank), or become
liable for the liabilities of others, without the Bank's written consent. This
does not prohibit:
(a) Acquiring
goods, supplies, or merchandise on normal trade credit.
(b) Endorsing
negotiable instruments received in the usual course of business.
(c) Obtaining
surety bonds in the usual course of business.
(d) Liabilities,
lines of credit and leases in existence on the date of this Agreement disclosed
in writing to the Bank.
8.7 Other
Liens. Not to create, assume, or allow any security interest or
lien (including judicial liens) on property any Borrower now or later owns,
except:
(a) Liens
and security interests in favor of the Bank.
(b) Liens
for taxes not yet due.
(c) Liens
outstanding on the date of this Agreement disclosed in writing to the
Bank.
8.8 Maintenance
of Assets.
(a) Not
to sell, assign, lease, transfer or otherwise dispose of any part of any
Borrower's business or any Borrower's assets except in the ordinary course
of
business.
(b) Not
to sell, assign, lease, transfer or otherwise dispose of any assets for less
than fair market value, or enter into any agreement to do so.
(c) Not
to enter into any sale and leaseback agreement covering any of its fixed
assets.
(d) To
maintain and preserve all rights, privileges, and franchises the Borrowers
now
have.
(e) To
make any repairs, renewals, or replacements to keep the Borrowers' properties
in
good working condition.
8.9 Investments. Not
to have any existing, or make any new, investments in any individual or entity,
or make any capital contributions or other transfers of assets to any individual
or entity, except for:
(a)
|
Existing
investments disclosed to the Bank in
writing.
|
(b)
|
Investments
in the Borrowers' current
subsidiaries.
|
(c)
|
Investments
in any of the following:
|
|
(i)
|
certificates
of deposit;
|
|
(ii)
|
U.S.
treasury bills and other obligations of the federal
government;
|
|
(iii)
|
readily
marketable securities (including commercial paper, but excluding
restricted stock and stock subject to the provisions of Rule 144
of the
Securities and Exchange
Commission).
|
8.10 Loans. Not
to make any loans, advances or other extensions of credit to any individual
or
entity, except for:
(a)
|
Existing
extensions of credit disclosed to the Bank in
writing.
|
(b)
|
Extensions
of credit to the Borrowers' current
subsidiaries.
|
(c)
|
Extensions
of credit in the nature of accounts receivable or notes receivable
arising
from the sale or lease of goods or services in the ordinary course
of
business to non-affiliated
entities.
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8.11 Change
of Management. Not to make any substantial change in the present
executive or management personnel of the Borrowers.
8.12 Change
of Ownership. Not to cause, permit, or suffer any change in
capital ownership such that there is a change of more than twenty-five percent
(25%) in the direct or indirect capital ownership of any Borrower.
8.13 Additional
Negative Covenants. Not to, without the Bank's written
consent:
(a) Enter
into any consolidation, merger, or other combination, or become a partner in
a
partnership, a member of a joint venture, or a member of a limited liability
company.
(b) Acquire
or purchase a business or its assets.
(c) Engage
in any business activities substantially different from each Borrower's present
business.
(d) Liquidate
or dissolve any Borrower's business.
8.14 Notices
to Bank. To promptly notify the Bank in writing of:
(a)
|
Any
lawsuit over Two Hundred Fifty Thousand and 00/100 Dollars ($250,000.00)
against any Borrower (or any guarantor or, if any Borrower is comprised
of
the trustees of a trust, any
trustor).
|
(b)
|
Any
substantial dispute between any governmental authority and any Borrower
(or any guarantor or, if any Borrower is comprised of the trustees
of a
trust, any trustor).
|
(c)
|
Any
event of default under this Agreement, or any event which, with notice
or
lapse of time or both, would constitute an event of
default.
|
(d)
|
Any
material adverse change in any Borrower's (or any guarantor’s, or, if any
Borrower is comprised of the trustees of a trust, any trustor’s) business
condition (financial or otherwise), operations, properties or prospects,
or ability to repay the credit.
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(e)
|
Any
change in any Borrower's name, legal structure, place of business,
or
chief executive office if such Borrower has more than one place of
business.
|
(f)
|
Any
actual contingent liabilities of any Borrower (or any guarantor or,
if any
Borrower is comprised of the trustees of a trust, any trustor), and
any
such contingent liabilities which are reasonably
foreseeable.
|
8.15 Insurance.
(a)
|
General
Business Insurance. To maintain insurance satisfactory to
the Bank as to amount, nature and carrier covering property damage
(including loss of use and occupancy) to any of the Borrowers' properties,
business interruption insurance, public liability insurance including
coverage for contractual liability, product liability and workers'
compensation, and any other insurance which is usual for the Borrowers'
business. Each policy shall provide for at least 30 days prior
notice to the Bank of any cancellation
thereof.
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(b)
|
Insurance
Covering Collateral. To maintain all risk property damage
insurance policies (including without limitation windstorm coverage,
and
hurricane coverage as applicable) covering the tangible property
comprising the collateral. Each insurance policy must be for
the full replacement cost of the collateral and include a replacement
cost
endorsement. The insurance must be issued by an insurance company
acceptable to the Bank and must include a lender's loss payable
endorsement in favor of the Bank in a form acceptable to the
Bank
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(c)
|
Evidence
of Insurance. Upon the request of the Bank, to deliver to
the Bank a copy of each insurance policy, or, if permitted by the
Bank, a
certificate of insurance listing all insurance in
force.
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8.16 Compliance
with Laws. To comply with the laws (including any fictitious or
trade name statute), regulations, and orders of any government body with
authority over any Borrower's business. The Bank shall have no
obligation to make any advance to any Borrowers except in compliance with all
applicable laws and regulations and any Borrowers shall fully cooperate with
the
Bank in complying with all such applicable laws and regulations.
8.17 ERISA
Plans. Promptly during each year, to pay and cause any
subsidiaries to pay contributions adequate to meet at least the minimum funding
standards under ERISA with respect to each and every Plan; file each annual
report required to be filed pursuant to ERISA in connection with each Plan
for
each year; and notify the Bank within ten (10) days of the occurrence of any
Reportable Event that might constitute grounds for termination of any capital
Plan by the Pension Benefit Guaranty Corporation or for the appointment by
the
appropriate United States District Court of a trustee to administer any
Plan. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time. Capitalized terms in this
paragraph shall have the meanings defined within ERISA.
8.18 Books
and Records. To maintain adequate books and records.
8.19 Audits. To
allow the Bank and its agents to inspect each Borrower's properties and examine,
audit, and make copies of books and records at any reasonable
time. If any of the Borrowers' properties, books or records are in
the possession of a third party, the Borrowers authorize that third party to
permit the Bank or its agents to have access to perform inspections or audits
and to respond to the Bank's requests for information concerning such
properties, books and records.
8.20 Perfection
of Liens. To help the Bank perfect and protect its security
interests and liens, and reimburse it for related costs it incurs to protect
its
security interests and liens.
8.21 Cooperation. To
take any action reasonably requested by the Bank to carry out the intent of
this
Agreement.
8.22 Assignment
Of Claims Act. To promptly comply, upon request by the Bank, with
any and all of the requirements of Title 31 Section 3727 and Title 00 Xxxxxxx
00
xx xxx Xxxxxx Xxxxxx Code and all rules and regulations relating thereto, as
amended, where such statutes, rules and regulations are, at the option of the
Bank, applicable to particular contracts, and shall at all times take all such
other action as may be necessary to facilitate and/or ensure perfection of
the
Bank’s security interest in and the assignment of the contracts.
9. DEFAULT
AND REMEDIES
If
any of
the following events of default occurs, the Bank may do one or more of the
following: declare the Borrowers in default, stop making any additional credit
available to the Borrowers, and require the Borrowers to repay their entire
debt
immediately and without prior notice. If an event which, with notice
or the passage of time, will constitute an event of default has occurred and
is
continuing, the Bank has no obligation to make advances or extend additional
credit under this Agreement. In addition, if any event of default
occurs, the Bank shall have all rights, powers and remedies available under
any
instruments and agreements required by or executed in connection with this
Agreement, as well as all rights and remedies available at law or in
equity. If an event of default occurs under the paragraph entitled
"Bankruptcy," below, with respect to any Borrower, then the entire debt
outstanding under this Agreement will automatically be due
immediately.
9.1 Failure
to Pay. The Borrowers fail to make a payment under this Agreement
when due.
9.2 Other
Bank Agreements. Any default occurs under any other agreement any
Borrower (or any Obligor) or any of the Borrowers' related entities or
affiliates has with the Bank or any affiliate of the Bank. For
purposes of this Agreement, “Obligor” shall mean any guarantor, any party
pledging collateral to the Bank, or, if any Borrower is comprised of the
trustees of a trust, any trustor.
9.3 Cross-default. Any
default occurs under any agreement in connection with any credit any Borrower
(or any Obligor) or any of the Borrowers’ related entities or affiliates has
obtained from anyone else or which any Borrower (or any Obligor) or any of
the
Borrowers’ related entities or affiliates has guaranteed.
9.4 False
Information. Any Borrower or any Obligor has given the Bank false
or misleading information or representations.
9.5 Bankruptcy. Any
Borrower, any Obligor, or any general partner of any Borrower or of any Obligor
files a bankruptcy petition, a bankruptcy petition is filed against any of
the
foregoing parties, or any Borrower, any Obligor, or any general partner of
any
Borrower or of any Obligor makes a general assignment for the benefit of
creditors.
9.6 Receivers. A
receiver or similar official is appointed for a substantial portion of any
Borrower's or any Obligor's business, or the business is terminated, or, if
any
Obligor is anything other than a natural person, such Obligor is liquidated
or
dissolved.
9.7 Lien
Priority. The Bank fails to have an enforceable first lien
(except for any prior liens to which the Bank has consented in writing) on
or
security interest in any property given as security for this Agreement (or
any
guaranty).
9.8 Judgments. Any
judgments or arbitration awards are entered against any Borrower or any Obligor,
or any Borrower or any Obligor enters into any settlement agreements with
respect to any litigation or arbitration, in an aggregate amount of Two Hundred
Fifty Thousand and 00/100 Dollars ($250,000.00) or more in excess of any
insurance coverage.
9.9 Material
Adverse Change. A material adverse change occurs, or is
reasonably likely to occur, in any Borrower's (or any Obligor's) business
condition (financial or otherwise), operations, properties or prospects, or
ability to repay the credit; or the Bank determines that it is insecure for
any
other reason.
9.10 Government
Action. Any government authority takes action that the Bank
believes materially adversely affects any Borrower's or any Obligor's financial
condition or ability to repay.
9.11 Default
under Related Documents. Any default occurs under any guaranty,
subordination agreement, security agreement, deed of trust, mortgage, or other
document required by or delivered in connection with this Agreement or any
such
document is no longer in effect, or any guarantor purports to revoke or disavow
the guaranty.
9.12 ERISA
Plans. Any one or more of the following events occurs with
respect to a Plan of any Borrower subject to Title IV of ERISA, provided such
event or events could reasonably be expected, in the judgment of the Bank,
to
subject any Borrower to any tax, penalty or liability (or any combination of
the
foregoing) which, in the aggregate, could have a material adverse effect on
the
financial condition of such Borrower:
(a)
|
A
reportable event shall occur under Section 4043(c) of ERISA with
respect
to a Plan.
|
(b)
|
Any
Plan termination (or commencement of proceedings to terminate a Plan)
or
the full or partial withdrawal from a Plan by any Borrower or any
ERISA
Affiliate.
|
9.13 Other
Breach Under Agreement. A default occurs under any other term or
condition of this Agreement not specifically referred to in this
Article. This includes any failure or anticipated failure by any
Borrower (or any other party named in the Covenants section) to comply with
the
financial covenants set forth in this Agreement, whether such failure is
evidenced by financial statements delivered to the Bank or is otherwise known
to
the Borrowers or the Bank.
9.14 Material
Default Under any Eligible Receivables. A material default by the
Borrower occurs under the terms of any Eligible Receivables or any breach in
the
Borrower’s performance obligations occurs under any Eligible
Receivables.
9.15 Termination
of Eligible Receivables. Any Eligible Receivable is
terminated for default.
10. ENFORCING
THIS AGREEMENT; MISCELLANEOUS
10.1 GAAP. Except
as otherwise stated in this Agreement, all financial information provided to
the
Bank and all financial covenants will be made under generally accepted
accounting principles, consistently applied.
10.2 North
Carolina Law. This Agreement shall be governed by and construed
in accordance with the laws of North Carolina. To the extent that the
Bank has greater rights or remedies under federal law, whether as a national
bank or otherwise, this paragraph shall not be deemed to deprive the Bank of
such rights and remedies as may be available under federal law.
10.3 Successors
and Assigns. This Agreement is binding on the Borrowers’ and the
Bank's successors and assignees. The Borrowers agree that they may
not assign this Agreement without the Bank's prior consent. The Bank
may sell participations in or assign this loan, and may exchange information
about the Borrowers (including, without limitation, any information regarding
any hazardous substances) with actual or potential participants or
assignees. If a participation is sold or the loan is assigned, the
purchaser will have the right of set-off against the Borrowers.
10.4 Dispute
Resolution Provision. This paragraph, including the subparagraphs
below, is referred to as the “Dispute Resolution Provision.” This
Dispute Resolution Provision is a material inducement for the parties entering
into this agreement.
(a)
|
This
Dispute Resolution Provision concerns the resolution of any controversies
or claims between the parties, whether arising in contract, tort
or by
statute, including but not limited to controversies or claims that
arise
out of or relate to: (i) this agreement (including any renewals,
extensions or modifications); or (ii) any document related to this
agreement (collectively a "Claim"). For the purposes of this
Dispute Resolution Provision only, the term “parties” shall include any
parent corporation, subsidiary or affiliate of the Bank involved
in the
servicing, management or administration of any obligation described
or
evidenced by this agreement.
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(b)
|
At
the request of any party to this agreement, any Claim shall be resolved
by
binding arbitration in accordance with the Federal Arbitration Act
(Title
9, U.S. Code) (the "Act"). The Act will apply even though this
agreement provides that it is governed by the law of a specified
state.
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(c)
|
Arbitration
proceedings will be determined in accordance with the Act, the
then-current rules and procedures for the arbitration of financial
services disputes of the American Arbitration Association or any
successor
thereof ("AAA"), and the terms of this Dispute Resolution
Provision. In the event of any inconsistency, the terms of this
Dispute Resolution Provision shall control. If AAA is unwilling
or unable to (i) serve as the provider of arbitration or (ii) enforce
any
provision of this arbitration clause, the Bank may designate another
arbitration organization with similar procedures to serve as the
provider
of arbitration.
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(d)
|
The
arbitration shall be administered by AAA and conducted, unless otherwise
required by law, in any U.S. state where real or tangible personal
property collateral for this credit is located or if there is no
such
collateral, in the state specified in the governing law section of
this
agreement. All Claims shall be determined by one arbitrator;
however, if Claims exceed Five Million Dollars ($5,000,000), upon
the
request of any party, the Claims shall be decided by three
arbitrators. All arbitration hearings shall commence within
ninety (90) days of the demand for arbitration and close within ninety
(90) days of commencement and the award of the arbitrator(s) shall
be
issued within thirty (30) days of the close of the
hearing. However, the arbitrator(s), upon a showing of good
cause, may extend the commencement of the hearing for up to an additional
sixty (60) days. The arbitrator(s) shall provide a concise
written statement of reasons for the award. The arbitration
award may be submitted to any court having jurisdiction to be confirmed
and have judgment entered and
enforced.
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(e)
|
The
arbitrator(s) will give effect to statutes of limitation in determining
any Claim and may dismiss the arbitration on the basis that the Claim
is
barred. For purposes of the application of any statutes of limitation,
the
service on AAA under applicable AAA rules of a notice of Claim is
the
equivalent of the filing of a lawsuit. Any dispute concerning
this arbitration provision or whether a Claim is arbitrable shall
be
determined by the arbitrator(s), except as set forth at subparagraph
(h)
of this Dispute Resolution Provision. The arbitrator(s) shall
have the power to award legal fees pursuant to the terms of this
agreement.
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(f)
|
This
paragraph does not limit the right of any party to: (i) exercise
self-help
remedies, such as but not limited to, setoff; (ii) initiate judicial
or
non-judicial foreclosure against any real or personal property collateral;
(iii) exercise any judicial or power of sale rights, or (iv) act
in a
court of law to obtain an interim remedy, such as but not limited
to,
injunctive relief, writ of possession or appointment of a receiver,
or
additional or supplementary
remedies.
|
(g)
|
The
filing of a court action is not intended to constitute a waiver of
the
right of any party, including the suing party, thereafter to require
submittal of the Claim to
arbitration.
|
(h)
|
Any
arbitration or trial by a judge of any Claim will take place on an
individual basis without resort to any form of class or representative
action (the “Class Action Waiver”). Regardless of anything else
in this Dispute Resolution Provision, the validity and effect of
the Class
Action Waiver may be determined only by a court and not by an
arbitrator. The parties to this Agreement acknowledge that the
Class Action Waiver is material and essential to the arbitration
of any
disputes between the parties and is nonseverable from the agreement
to
arbitrate Claims. If the Class Action Waiver is limited, voided or
found
unenforceable, then the parties’ agreement to arbitrate shall be null and
void with respect to such proceeding, subject to the right to appeal
the
limitation or invalidation of the Class Action
Waiver. The Parties acknowledge and agree that under no
circumstances will a class action be
arbitrated.
|
(i)
|
By
agreeing to binding arbitration, the parties irrevocably and voluntarily
waive any right they may have to a trial by jury in respect of any
Claim. Furthermore, without intending in any way to limit this
agreement to arbitrate, to the extent any Claim is not arbitrated,
the
parties irrevocably and voluntarily waive any right they may have
to a
trial by jury in respect of such Claim. This waiver of jury
trial shall remain in effect even if the Class Action Waiver is limited,
voided or found unenforceable. WHETHER THE CLAIM IS
DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGE, THE PARTIES AGREE
AND
UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING
UP
THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY
LAW.
|
10.5 Severability;
Waivers. If any part of this Agreement is not enforceable, the
rest of the Agreement may be enforced. The Bank retains all rights,
even if it makes a loan after default. If the Bank waives a default,
it may enforce a later default. Any consent or waiver under this
Agreement must be in writing.
10.6 Attorneys'
Fees. The Borrowers shall reimburse the Bank for any reasonable
costs and attorneys' fees incurred by the Bank in connection with the
enforcement or preservation of any rights or remedies under this Agreement
and
any other documents executed in connection with this Agreement, and in
connection with any amendment, waiver, "workout" or restructuring under this
Agreement. In the event of a lawsuit or arbitration proceeding, the
prevailing party is entitled to recover costs and reasonable attorneys' fees
incurred in connection with the lawsuit or arbitration proceeding, as determined
by the court or arbitrator. In the event that any case is commenced
by or against the Borrowers under the Bankruptcy Code (Title 11, United States
Code) or any similar or successor statute, the Bank is entitled to recover
costs
and reasonable attorneys' fees incurred by the Bank related to the preservation,
protection, or enforcement of any rights of the Bank in such a
case. As used in this paragraph, "attorneys' fees" includes the
allocated costs of the Bank's in-house counsel.
10.7 Joint
and Several Liability. This paragraph shall apply if two or more
Borrowers sign this agreement:
(a)
|
Each
Borrower agrees that it is jointly and severally liable to the Bank
for
the payment of all obligations arising under this Agreement, and
that such
liability is independent of the obligations of the other Borrower(s).
Each
obligation, promise, covenant, representation and warranty in this
Agreement shall be deemed to have been made by, and be binding upon,
each
Borrower, unless this Agreement expressly provides
otherwise. The Bank may bring an action against any Borrower,
whether an action is brought against the other
Borrower(s).
|
(b)
|
Each
Borrower agrees that any release which may be given by the Bank to
the
other Borrower(s) or any guarantor will not release such Borrower
from its
obligations under this Agreement.
|
(c)
|
Each
Borrower waives any right to assert against the Bank any defense,
setoff,
counterclaim, or claims which such Borrower may have against the
other
Borrower(s) or any other party liable to the Bank for the obligations
of
the Borrowers under this Agreement.
|
(d)
|
Each
Borrower waives any defense by reason of any other Borrower’s or any other
person's defense, disability, or release from liability. The
Bank can exercise its rights against each Borrower even if any other
Borrower or any other person no longer is liable because of a statute
of
limitations or for other reasons.
|
(e)
|
Each
Borrower agrees that it is solely responsible for keeping itself
informed
as to the financial condition of the other Borrower(s) and of all
circumstances which bear upon the risk of nonpayment. Each
Borrower waives any right it may have to require the Bank to disclose
to
such Borrower any information which the Bank may now or hereafter
acquire
concerning the financial condition of the other
Borrower(s).
|
(f)
|
Each
Borrower waives all rights to notices of default or nonperformance
by any
other Borrower under this Agreement. Each Borrower further
waives all rights to notices of the existence or the creation of
new
indebtedness by any other Borrower and all rights to any other notices
to
any party liable on any of the credit extended under this
Agreement.
|
(g)
|
The
Borrowers represent and warrant to the Bank that each will derive
benefit,
directly and indirectly, from the collective administration and
availability of credit under this Agreement. The Borrowers
agree that the Bank will not be required to inquire as to the disposition
by any Borrower of funds disbursed in accordance with the terms of
this
Agreement.
|
(h)
|
Until
all obligations of the Borrowers to the Bank under this Agreement
have
been paid in full and any commitments of the Bank or facilities provided
by the Bank under this Agreement have been terminated, each Borrower
(a)
waives any right of subrogation, reimbursement, indemnification and
contribution (contractual, statutory or otherwise), including without
limitation, any claim or right of subrogation under the Bankruptcy
Code
(Title 11, United States Code) or any successor statute, which such
Borrower may now or hereafter have against any other Borrower with
respect
to the indebtedness incurred under this Agreement; (b) waives any
right to
enforce any remedy which the Bank now has or may hereafter have against
any other Borrower, and waives any benefit of, and any right to
participate in, any security now or hereafter held by the
Bank.
|
(i)
|
Each
Borrower waives any right to require the Bank to proceed against
any other
Borrower or any other person; proceed against or exhaust any security;
or
pursue any other remedy. Further, each Borrower consents to the
taking of, or failure to take, any action which might in any manner
or to
any extent vary the risks of the Borrowers under this Agreement or
which,
but for this provision, might operate as a discharge of the
Borrowers.
|
10.8 One
Agreement. This Agreement and any related security or other
agreements required by this Agreement, collectively:
(a)
|
represent
the sum of the understandings and agreements between the Bank and
the
Borrowers concerning this credit;
|
(b)
|
replace
any prior oral or written agreements between the Bank and the Borrowers
concerning this credit; and
|
(c)
|
are
intended by the Bank and the Borrowers as the final, complete and
exclusive statement of the terms agreed to by
them.
|
In
the
event of any conflict between this Agreement and any other agreements required
by this Agreement, this Agreement will prevail. Any reference in any
related document to a “promissory note” or a “note” executed by the Borrowers
and dated as of the date of this Agreement shall be deemed to refer to this
Agreement, as now in effect or as hereafter amended, renewed, or
restated.
10.9 Disposition
of Schedules and Reports. The Bank will not be obligated to
return any schedules, invoices, statements, budgets, forecasts, reports or
other
papers delivered by the Borrowers. The Bank will destroy or otherwise
dispose of such materials at such time as the Bank, in its discretion, deems
appropriate.
10.10 Returned
Merchandise. Until the Bank exercises its rights to collect the
accounts receivable as provided under any security agreement required under
this
Agreement, the Borrowers may continue their present policies for returned
merchandise and adjustments. Credit adjustments with respect to
returned merchandise shall be made immediately upon receipt of the merchandise
by the Borrowers or upon such other disposition of the merchandise by the debtor
in accordance with the Borrowers' instructions. If a credit
adjustment is made with respect to any Acceptable Receivable, the amount of
such
adjustment shall no longer be included in the amount of such Acceptable
Receivable in computing the Borrowing Base.
10.11 Verification
of Eligible Receivables. The Bank may at any time, either orally
or in writing, request confirmation from any debtor of the current amount and
status of the Eligible Receivables upon which such debtor is
obligated.
10.12 Waiver
of Confidentiality. The Borrowers authorize the Bank to discuss
the Borrowers' financial affairs and business operations with any accountants,
auditors, business consultants, or other professional advisors employed by
the
Borrowers, and authorize such parties to disclose to the Bank such financial
and
business information or reports (including management letters) concerning the
Borrowers as the Bank may request.
10.13 Indemnification. The
Borrower will indemnify and hold the Bank harmless from any loss, liability,
damages, judgments, and costs of any kind relating to or arising directly or
indirectly out of (a) this Agreement or any document required hereunder, (b)
any
credit extended or committed by the Bank to the Borrower hereunder, (c) any
claim, whether well-founded or otherwise, that there has been a failure to
comply with any law regulating the Borrower's sales or leases to or performance
of services for debtors obligated upon the Borrower's Eligible Receivables
and
disclosures in connection therewith, and (d) any litigation or proceeding
related to or arising out of this Agreement, any such document, any such credit,
or any such claim. This indemnity includes but is not limited to
attorneys' fees (including the allocated cost of in-house
counsel). This indemnity extends to the Bank, its parent,
subsidiaries and all of their directors, officers, employees, agents,
successors, attorneys, and assigns. This indemnity will survive
repayment of the Borrower's obligations to the Bank. All sums due to
the Bank hereunder shall be obligations of the Borrower, due and payable
immediately without demand.
10.14 Notices. Unless
otherwise provided in this Agreement or in another agreement between the Bank
and the Borrowers, all notices required under this Agreement shall be personally
delivered or sent by first class mail, postage prepaid, or by overnight courier,
to the addresses on the signature page of this Agreement, or sent by facsimile
to the fax numbers listed on the signature page, or to such other addresses
as
the Bank and the Borrowers may specify from time to time in
writing. Notices and other communications shall be effective (i) if
mailed, upon the earlier of receipt or five (5) days after deposit in the U.S.
mail, first class, postage prepaid, (ii) if telecopied, when transmitted, or
(iii) if hand-delivered, by courier or otherwise (including telegram, lettergram
or mailgram), when delivered.
10.15 Headings. Article
and paragraph headings are for reference only and shall not affect the
interpretation or meaning of any provisions of this Agreement.
10.16 Counterparts. This
Agreement may be executed in as many counterparts as necessary or convenient,
and by the different parties on separate counterparts each of which, when so
executed, shall be deemed an original but all such counterparts shall constitute
but one and the same agreement.
10.17 Borrower
Information; Reporting to Credit Bureaus. The Borrower authorizes
the Bank at any time to verify or check any information given by the Borrower
to
the Bank, check the Borrower’s credit references, verify employment, and obtain
credit reports. The Borrower agrees that the Bank shall have the
right at all times to disclose and report to credit reporting agencies and
credit rating agencies such information pertaining to the Borrower and/or all
guarantors as is consistent with the Bank's policies and practices from time
to
time in effect.
10.18 Prior
Agreement Superseded. This Agreement supersedes the Loan
Agreement entered into as of May 23, 2001, between the Bank and the Borrowers,
and any credit outstanding thereunder shall be deemed to be outstanding under
this Agreement.
10.19 Additional
Remedy for Failure to Assign Payments as Requested. The Borrower
acknowledges that the Bank will be irreparably harmed if the Borrower fails,
after request by the Bank, to promptly assign payments due or to become due
under any Eligible Receivables when required by the Bank, pursuant to this
Agreement, and that the Bank shall have no adequate remedy at
law. Therefore, the Borrower agrees that the Bank shall be entitled
to the following remedies, in addition to all other remedies allowed by law
or
under this Agreement:
(a)
|
an
injunction compelling the Borrower’s compliance with the provisions of
this Agreement requiring the Borrower to assign payments due or to
become
due under any Eligible Receivables;
|
(b)
|
the
appointment of a receiver, with instructions that the receiver shall
comply, in the Borrower’s name and on its behalf, with the provisions of
this Agreement requiring the Borrower to assign payments due or to
become
due under any Eligible Receivables;
and
|
(c)
|
such
other or further equitable relief as may be necessary or desirable
to
secure to the Bank the benefits of the rights of an assignee under
the
Assignment of Claims Act (Title 31 Section 3727 and Title 00 Xxxxxxx
00 xx
xxx Xxxxxx Xxxxxx Code).
|
This
Agreement is executed as of the date stated at the top of the first
page.
Borrower:
|
Bank:
|
||||
Air
T, Inc.
|
Bank
of America, N.A.
|
||||
By:
|
/S/ Xxxx Xxxxx |
(Seal)
|
By:
______________________________________
|
||
Xxxx
Xxxxx, VP Finance
|
Authorized
Signer
|
||||
Borrower:
|
|||||
Csa
Air, Inc.
|
|||||
By:
|
/S/ Xxxx Xxxxx |
(Seal)
|
|||
Xxxx
Xxxxx, VP Finance
|
|||||
Borrower:
|
||
Mountain
Air Cargo, Inc.
|
||
By:
|
/S/ Xxxx Xxxxx |
(Seal)
|
Xxxx
Xxxxx, VP Finance
|
Borrower:
|
||
MAC
Aviation Services LLC
|
||
By:
|
/S/ Xxxx Xxxxx |
(Seal)
|
Xxxx
Xxxxx, Member
|
Borrower:
|
||
MAC
Aviation Services LLC
|
||
By:
|
/S/ Xxxx Xxxxx |
(Seal)
|
Xxxx
Xxxxx, Member
|
Borrower:
Global
Ground Support, LLC
By:
(Seal)
Xxxx
Xxxxx, Member
Borrower:
|
||
Global
Ground Support, LLC
|
||
By:
|
/S/ Xxxx Xxxxx |
(Seal)
|
Xxxx
Xxxxx, Member
|
Borrower:
Global
Aviation Services, LLC
By: ________ /S/
Xxxx Parry________________(Seal)
Authorized
Signer
By: ___________________________________(Seal)
Authorized
Signer
Address
where notices to Borrowers are to be sent:
Address
where notices to Bank are to be sent:
0000
Xxxxxxx Xxxx
Bank
of
America, N.A.
Xxxxxx,
XX 00000
GCIB
Credit Services
0000
Xxxx
Xxxxxx, 0xx
Xxxxx
Telephone: (000)
000-0000
Xxxxxxx,
XX 00000
Facsimile: (000) 000-0000
Affiliate
Sharing Notice. Notice to Individual Borrowers, Guarantors and
Pledgors (“Obligors”): From time to time Bank of America, N.A. (the
“Bank”) may share information about the Obligor’s experience with Bank of
America Corporation (or any successor company) and its subsidiaries and
affiliated companies (the “Affiliates”). The Bank may also share with
the Affiliates credit-related information contained in any applications, from
credit reports and information it may obtain about the Obligor from outside
sources. If the Obligor is an individual, the Obligor may instruct
the Bank not to share this information with the Affiliates. The
Obligor can make this election by (1) calling the Bank at 0.000.000.0000, (2)
visiting the Bank online at xxx.xxxxxxxxxxxxx.xxx, selecting “Privacy
& Security,” and then selecting “Set Your Privacy Preferences," or (3)
contacting the Obligor’s client manager or local banking center. To
help the Bank complete the Obligor’s request, the Obligor should include the
Obligor’s name, address, phone number, account number(s) and social security
number. If the Obligor makes this election, certain products or
services may not be made available to the Obligor. This request will
apply to information from applications, consumer reports and other outside
sources only, and may take six to eight weeks to be fully
effective. Through the normal course of doing business, including
servicing the Obligor’s accounts and better serving the Obligor’s financial
needs, the Bank will continue to share transaction and account experience
information, as well as other general information among the
Affiliates. The Bank may change this policy from time to
time. Visit our website, xxx.xxxxxxxxxxxxx.xxx, for the latest
policy.
USA
Patriot Act Notice. Federal law requires all financial
institutions to obtain, verify and record information that identifies each
person who opens an account or obtains a loan. The Bank will ask for
the Borrower’s legal name, address, tax ID number or social security number and
other identifying information. The Bank may also ask for additional
information or documentation or take other actions reasonably necessary to
verify the identity of the Borrower, guarantors or other related
persons.