EXHIBIT 10.1
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LOAN NUMBER LOAN NAME ACCT. NUMBER AGREEMENT DATE INITIALS
3041000298-501 Elecsys Corporation 07/18/02 RTO
NOTE AMOUNT INDEX (w/Margin) RATE MATURITY DATE LOAN PURPOSE
$1,000,000.00 Gold Bank Prime 5.75% 07/18/03 Commercial
Creditor Use Only
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COMMERCIAL LOAN AGREEMENT
Accounts Receivable and/or Inventory Financing
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DATE AND PARTIES. The date of this Commercial Loan Agreement (Agreement) is July
18, 2002. The parties and their addresses are as follows:
LENDER:
GOLD BANK
000 X 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
BORROWER:
ELECSYS CORPORATION
a Kansas Corporation
00000 X. 000xx Xxxxxx
Xxxxxx, Xxxxxx 00000
DCI, INC.
a Kansas Corporation
00000 X. 000xx Xxxxxx
Xxxxxx, Xxxxxx 00000
1. DEFINITIONS. For the purpose of this Agreement, the following terms have the
following meanings.
A. Accounting Terms. In this Agreement, any accounting terms that are not
specifically defined will have their customary meanings under generally
accepted accounting principles.
B. Insiders. Insiders include those defined as insiders by the United
States Bankruptcy Code, as amended; or to the extent left undefined,
include without limitation any officer, employee, stockholder or member,
director, partner, or any immediate family member of any of the foregoing,
or any person or entity which, directly or indirectly, controls, is
controlled by or is under common control with me.
C. Loan. The Loan refers to this transaction generally, including
obligations and duties arising from the terms of all documents prepared or
submitted for this transaction.
D. Pronouns. The pronouns "I", "me" and "my" refer to every Borrower
signing this Agreement, individually or together, and their heirs,
successors and assigns. "You" and "your" refers to the Loan's lender, any
participants or syndicators, or any person or company that acquires an
interest in the Loan and their successors and assigns.
E. Property. Property is any property, real, personal or intangible, that
secures my performance of the obligations of this Loan.
F. Asset-Based Financing Definancing Definitions. For the purposes of this
Agreement, the following terms will have the following meanings.
(1) Account Debtors. Account Debtors are persons who are obligated on
the Accounts Receivable.
(2) Account Guarantors. Account Guarantors are persons who have
guarantied certain Accounts Receivable.
(3) Accounts Receivable. Accounts Receivable will include all of the
following,
(a) Accounts and Other Rights to Payment. All rights I have now
or in the future to payments including, but not limited to,
payment for goods and other property sold or leased or for
services rendered, whether or not I have earned such payment by
performance. This includes any rights and interests (including
all guaranties, standby letters of credit, liens and security
interests) which I may have by law or agreement against any
Account Debtor.
(b) Proceeds. All proceeds from the disposition or collection of
Accounts Receivable.
(4) Eligible Accounts Receivable. Eligible Accounts Receivable
include all of my Accounts Receivable that are and continue to be
acceptable to you in all respects. Criteria for eligibility may
be revised by you at any time. Eligible Accounts Receivable
exclude all of the following Accounts Receivable: the entire
balance of any Accounts Receivable that has been due and owing
for more than 90 days from the invoice dates. All Receivables
owed by an Account Debtor owing Receivables for more than 90 days
from the invoice date, if the outstanding dollar amount of such
ineligible Receivables constitutes more than fifty percent (50%)
of the aggregate outstanding dollar amount of all Receivables
owned by such Account Debtor.
(5) Inventory. Inventory includes all inventory which I hold for
ultimate sale or lease, or which has been or will be supplied
under contracts of service, or which are raw materials, work in
process, or materials used or consumed in my business.
(6) Eligible Inventory. Eligible Inventory includes all of my
inventory that is and continues to be acceptable to you in all
respects. Criteria for eligibility may be revised by you at any
time. Eligible Inventory excludes all Inventory that I do not own
or that is subject to a competing claim, lien or encumbrance or
that which you in your sole discretion disqualify as Eligible
Inventory.
(7) Value of Eligible Inventory. The Value of Eligible Inventory
is the lower of the Eligible Inventory's cost or fair market
value as determined by consistently applied generally accepted
accounting principles under the first-in-first-out (FIFO) method
and any additional written valuation guidelines you provide me.
(8) Overadvance. An Overadvance is made when advances exceed the
maximum outstanding Principal balance.
2. ADVANCES. Advances under this Agreement are made according to the following
terms and conditions.
A. Asset Based Financing - Revolving Draw. In accordance with the terms of
this Agreement and other Loan documents, you will provide me with a
revolving draw note and the maximum outstanding principal balance will be
the lesser of $1,000,000.00 (Principal) or the Borrowing Base. The
Borrowing Base is the sum of the following amounts.
(1) 75 percent of Eligible Accounts Receivable.
(2) 35 percent of the Value of Eligible Inventory, not to exceed
$500,000.00.
As long as I owe any amounts to you under the Loan, I will calculate this
Borrowing Base as of the close of my business day at the end of each month,
and within 10 business days, and I will provide you with a Borrowing Base
Certificate containing an assignment of any Accounts Receivable and
Inventory. The Borrowing Base Certificate will be in form and substance
acceptable to you, will contain my Borrowing Base calculation and will be
certified and signed by me or my officer. My calculation of my Borrowing
Base is subject to your confirmation or redetermination. Your calculation
of the Borrowing Base will be the final determination when your calculation
of the Borrowing Base ratio differs from mine.
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B. Requests for Advances. My requests are a warranty that I am in
compliance with all the Loan documents. When required by you for a
particular method of advance, my requests for an advance must specify the
requested amount and the date and be accompanied with any agreements,
documents, and instruments that you require for the Loan. Any payment by
you of any check, share draft or other charge may, at your option,
constitute an advance on the Loan to me. All advances will be made in
United States dollars. I will indemnify you and hold you harmless for your
reliance on any request for advances that you reasonably believe to be
genuine. To the extent permitted by law, I will indemnify you and hold you
harmless when the person making any request represents that I authorized
this person to request an advance even when this person is unauthorized or
this person's signature is not genuine.
I or anyone I authorize to act on my behalf may request advances by the
following methods.
(1) I make a request in person.
(2) I make a request by mail.
(3) I write a check or share draft.
(4) I make a request by electronic mail.
C. Advance Limitations. In addition to any other Loan conditions, requests for,
and access to, advances are subject to the following limitations.
(1) Obligatory Advances. You will make all Loan advances subject to
this Agreement's terms and conditions.
(2) Advance Amount. Subject to the terms and conditions contained in
this Agreement, advances will be made in exactly the amount I request.
(3) Cut-Off Time. Requests for an advance received before 3:00 PM will
be made on any day that you are open for business, on the day for
which the advance is requested.
(4) Disbursement of Advances. On my fulfillment of this Agreement's
terms and conditions, you will disburse the advance in any manner as
you and I agree.
(5) Credit Limit. I understand that you will not ordinarily grant a
request for an advance that would cause the unpaid principal of my
Loan to be greater than the Principal limit. You may, at your option,
grant such a request without obligating yourselves to do so in the
future.
(6) Records. Your records will be conclusive evidence as to the amount
of advances, the Loan's unpaid principal balances and the accrued
interest.
(7) Repayment of Overadvances. I will pay any Overadvances in addition
to my regularly scheduled payments. I will repay any Overadvance by
repaying you in full within one day after the Overadvance occurs,
except I may repay an Overadvance of $0.00 or less within one days if
the outstanding Principal balance, including the excess, does not
exceed the liquidation value of Accounts Receivable and Inventory and
the Overadvance resulted from you declaring ineligible previously
Eligible Accounts Receivable and Inventory. Otherwise, I will repay
any Overadvance by making periodic payments to you as you request.
D. Conditions. I will satisfy all of the following conditions before you
either issue any promissory notes or make any advances under this
Agreement.
(1) No Default. There has not been a default under this Agreement
or other Loan documents nor would a default result from making
the Loan or any advance.
(2) Information. You have received all documents, information,
certifications and warranties as you may require, all properly
executed, if appropriate, on forms acceptable to you. This
includes, but is not limited to, the documents and other items
listed in the Loan Checklist Report which is hereby incorporated
by reference into this Agreement.
(3) Inspections. You have made all inspections that you consider
necessary and are satisfied with the inspection.
(4) Conditions and Covenants. I will have performed and complied
with all conditions required for an advance and all covenants in
this Agreement and any other Loan documents.
(5) Warranties and Representations. The warranties and
representations contained in this Agreement are true and correct
at the time of making the requested advance.
(6) Financial Statements. My most recent financial statements,
Inventory or Accounts Receivable schedules and other financial
reports, delivered to you, are current, complete, true and
accurate in all material respects and fairly represent my
financial condition.
(7) Bankruptcy Proceedings. No proceeding under the United States
Bankruptcy Code has been commenced by or against me or any of my
affiliates.
3. MATURITY DATE. I agree to fully repay the Loan by July 18, 2003.
4. WARRANTIES AND REPRESENTATIONS. I make to you the following warranties and
representations which will continue as long as this Loan is in effect, except
when this Agreement provides otherwise.
A. Power. I am duly organized, and validly existing and in good standing in
all jurisdictions in which I operate. I have the power and authority to
enter into this transaction and to carry on my business or activity as it
is now being conducted and, as applicable, am qualified to do so in each
jurisdiction in which I operate.
B. Authority. The execution, delivery and performance of this Loan and the
obligation evidenced by the Note are within my powers, have been duly
authorized, have received all necessary governmental approval, will not
violate any provision of law, or order of court or governmental agency, and
will not violate any agreement to which I am a party or to which I am or
any of my property is subject.
C. Name and Place of Business. Other than previously disclosed in writing
to you I have not changed my name or principal place of business within the
last 10 years and have not used any other trade or fictitious name. Without
your prior written consent, I do not and will not use any other name and
will preserve my existing name, trade names and franchises.
D. Loan Purpose. This Loan is for Commercial purposes.
E. No Other Loans. I own or lease all property that I need to conduct my
business and activities. I have good and marketable title to all property
that I own or lease. All of my Property is free and clear of all liens,
security interests, encumbrances and other adverse claims and interests,
except those to you or those you consent to in writing.
F. Compliance With Laws. I am not violating any laws, regulations, rules,
orders, judgments or decrees applicable to me or my property, except for
those which I am challenging in good faith through proper proceedings after
providing adequate reserves to fully pay the claim and its challenge should
I lose.
G. Legal Dispute. There are no pending or threatened lawsuits, arbitrations
or other proceedings against me or my property that singly or together may
materially and adversely affect my property, operations, financial
condition, or business.
H. Adverse Agreements. I am not a party to, nor am I bound by, any
agreement that is now or is likely to become materially adverse to my
business, Property or operations.
I. Other Claims. There are no outstanding claims or rights that would
conflict with the execution, delivery or performance by me of the terms and
conditions of this Agreement or the other Loan documents. No outstanding
claims or rights exist that may result in a lien on the Property, the
Property's proceeds and the proceeds of proceeds, except liens that were
disclosed to and agreed to by you in writing.
J. Solvency. I am able to pay my debts as they mature, my assets exceed my
liabilities and I have sufficient capital for my current and planned
business and other activities. I will not become insolvent by the execution
or performance of this Loan.
5. FINANCIAL STATEMENTS. I will prepare and maintain my financial records using
consistently applied generally accepted accounting principles then in effect. I
will provide you with financial information in a form that you accept and under
the following terms.
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A. Certification. I represent and warrant that any financial statements
that I provide you fairly represents my financial condition for the stated
periods, is current, complete, true and accurate in all material respects,
includes all of my direct or contingent liabilities and there has been no
material adverse change in my financial condition, operations or business
since the date the financial information was prepared.
B. Frequency. Annually, I will provide to you my financial statements, tax
returns, annual internal audit reports or those prepared by independent
accountants as soon as available or at least within 90 days after the close
of each of my fiscal years. Any annual financial statements that I provide
you will be audited statements.
(1) Interim Financial Reports. Each month, I will provide to you my
financial statements, internal audit reports or those prepared by
independent accountants, tax reports, statements of cash flow, budgets
and forecasts, certificates and schedules of Property as soon as
available or at least within 10 days after the close of this business
period. Any interim financial statements that I provide you will be
prepared statements.
(2) Inventory Schedule. Each fiscal year (reporting period), I will
provide you with an Inventory schedule within 90 days after the end of
this reporting period or with the frequency and promptness you
otherwise request. The Inventory schedule will list the cost and
wholesale value of all Inventory and all Eligible Inventory. The
Inventory schedule will also identify whether a bailee has possession
of the Inventory and whether the Inventory is represented by a
warehouse receipt, xxxx of lading or similar documents or instruments.
The Inventory schedule will identify the Accountants Receivable,
contracts, collections and property relating to the Inventory.
(3) Accounts Receivable Schedule. Each month (reporting period), I
will provide you with an Accounts Receivable schedule within 10 days
after the end of this reporting period or with the frequency and
promptness you otherwise request. The Accounts Receivable schedule
will assign the Accounts Receivable to you and will list the Account
Debtor's name, address, phone number and amounts and dates due,
documents and instrument evidencing and creating the account and aged
reports of the Accounts Receivable. At your request, I will also
include copies of customers' invoices, evidence of shipment or
delivery and any other information that your request.
C. SEC Reports. I will provide you with true and correct copies of all
reports, notices or statements that I provide to the Securities and
Exchange Commission, any securities exchange or my stockholders, owners, or
the holders of any material indebtedness as soon as available or at least
within 30 days after issuance.
D. Requested Information. I will provide you with any other information
about my operations, financial affairs and condition within 30 days after
your request.
E. Additional Financial Statements Term. I WILL PROVIDE YOU THE FOLLOWING
FINANCIAL INFORMATION: 1.) Monthly Compliance Certificates within 10 days
of month end as long as I owe any amounts to you under the loan.
6. COVENANTS. Until the Loan and all related debts, liabilities and obligations
are paid and discharged, I will comply with the following terms, unless you
waive compliance in writing.
A. Participation. I consent to you participating or syndicating the Loan
and sharing any information that you decide is necessary about me and the
Loan with the other participants or syndicators.
B. Inspection. Upon reasonable notice, I will permit you or your agents to
enter any of my premises and any location where my Property is located
during regular business hours to do the following.
(1) You may inspect, audit, check, review and obtain copies from my
books, records, journals, orders, receipts, and any correspondence and
other business related data.
(2) You may discuss my affairs, finances and business with any one who
claims to be my creditor.
(3) You may inspect my Property, audit for the use and disposition of
the Property's proceeds and proceeds of proceeds; or do whatever you
decide is necessary to preserve and protect the Property and your
interest in the Property.
After prior notice to me, you may discuss my financial condition and
business operations with my independent accountants, if any, or my chief
financial officer and I may be present during these discussions. As long as
the Loan is outstanding, I will direct all of my accountants and auditors
to permit you to examine my records in their possession and to make copies
of these records. You will use your best efforts to maintain the
confidentiality of the information you or your agents obtain, except you
may provide your regulator, if any, with required information about my
financial condition, operation and business or that of my parent,
subsidiaries or affiliates.
C. Business Requirements. I will preserve and maintain my present existence
and good standing in the jurisdiction where I am organized and all of my
rights, privileges and franchises. I will do all that is needed or required
to continue my business or activities as presently conducted, by obtaining
licenses, permits and bonds everywhere I engage in business or activities
or own, lease or locate my property. I will obtain your prior written
consent before I cease my business or before I engage in any new line of
business that is materially different from my present business.
D. Compliance with Laws. I will not violate any laws, regulations, rules,
orders, judgments or decrees applicable to me or my Property, except for
those which I challenge in good faith through proper proceedings after
providing adequate reserves to fully pay the claim and its appeal should I
lose. Laws include without limitation the Federal Fair Labor Standards Act
requirements for producing goods, the federal Employee Retirement Income
Security Act of 1974's requirements for the establishment, funding and
management of qualified deferred compensation plans for employees, health
and safety laws, environmental laws, tax laws, licensing and permit laws.
On your request, I will provide you with written evidence that I have fully
and timely paid my taxes, assessments and other governmental charges levied
or imposed on me, my income or profits and my property. Taxes include
without limitation sales taxes, use taxes, personal property taxes,
documentary stamp taxes, recordation taxes, franchise taxes, income taxes,
withholding taxes, FICA taxes and unemployment taxes. I will adequately
provide for the payment of these taxes, assessments and other charges that
have accrued but are not yet due and payable.
E. New Organizations. I will obtain your written consent and any necessary
changes to the Loan documents before I organize or participate in the
organization of any entity, merge into or consolidate with any one, permit
any one else to merge into me, acquire all or substantially all of the
assets of any one else or otherwise materially change my legal structure,
management, ownership or financial condition.
F. Dealings with Insiders. I will not purchase, acquire or lease any
property or services from, or sell, provide or lease any property or
services to, or permit any outstanding loans or credit extensions to, or
otherwise deal with, any insiders except as required under contracts
existing at the time I applied for the Loan and approved by you or as this
Agreement otherwise permits. I will not change or breach these contracts
existing at Loan application so as to cause an acceleration of or any
increase in any payments due.
G. Other Debts. I will pay when due any and all other debts owned or
guaranteed by me and will faithfully perform, or comply with all the
conditions and obligations imposed on me concerning the debt or guaranty.
H. Other Liabilities. I will not incur, assume or permit any debt evidenced
by notes, bonds or similar obligations, except: debt in existence on the
date of this Agreement and fully disclosed to you; debt subordinated in
payment to you on conditions and terms acceptable to you; accounts payable
incurred in the ordinary course of my business and paid under customary
trade terms or contested in good faith with reserves satisfactory to you.
I. Notice to You. I will promptly notify you of any material change in my
financial condition, of the occurrence of a default under the terms of this
Agreement, or a default by me under any agreement between me and any third
party which materially and adversely affects my property, operations,
financial condition or business.
J. Certification of No Default. On your request, my chief financial officer
or my independent accountant will provide you with a written certification
that to the best of their knowledge no event of default exists under the
terms of this Agreement or the other Loan documents, and that there exists
no other action, condition or event which with the giving of notice or
lapse of time or both would constitute a default. As requested, my chief
financial officer or my independent accountant will also provide you with
computations demonstrating compliance with any financial covenants and
ratios contained in this Agreement. If an action, condition or event of
default does exist, the certificate must accurately and fully disclose the
extent and nature of this action, condition or event and state what must be
done to correct it.
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Elecsys Corporation
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Elecsys Corporation
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K. Use of Loan Proceeds. I will not permit the loan proceeds to be used to
purchase, carry, reduce, or retire any loan incurred to purchase or carry
any margin stock.
L. Dispose of No Assets. Without your prior written consent or as the Loan
documents permit, I will not sell, lease, assign, transfer, dispose of or
otherwise distribute all or substantially all of my assets to any person
other than in the ordinary course of business for the assets' depreciated
book value or more.
M. No Other Liens. I will not create, permit or suffer any lien or
encumbrance upon any of my properties for or by anyone, other than you,
except for: nonconsensual liens imposed by law arising out of the ordinary
course of business on obligations that are not overdue or which I am
contesting in good faith after making appropriate reserves; valid purchase
money security interests on personal property; or any other liens
specifically agreed to by you in writing.
N. Guaranties. I will not guaranty or become liable in any way as surety,
endorser (other than as endorser of negotiable instruments in the ordinary
course of business) or accommodation endorser or otherwise for the debt or
obligations of any other person or entity, except to you or as you
otherwise specifically agree in writing.
O. No Default Under Other Agreements. I will not allow to occur, or to
continue unremedied, any act, event or condition which constitutes a
default, or which, with the passage of time or giving of notice, or both,
would constitute a default under any agreement, document, instrument or
undertaking to which I am a party or by which I may be bound.
P. Legal Disputes. I will promptly notify you in writing of any threatened
or pending lawsuit, arbitration or other proceeding against me or any of my
property, not identified in my financial statements, or that singly or
together with other proceedings may materially and adversely affect my
property, operations, financial condition or business. I will use my best
efforts to bring about a favorable and speedy result of any of these
lawsuits, arbitrations or other proceedings.
Q. Other Notices. I will immediately provide you with any information that
may materially and adversely affect my ability to perform this Agreement
and of its anticipated effect.
R. No Change in Capital. I will not release, redeem, retire, purchase or
otherwise acquire, directly or indirectly, any of my capital stock or other
equity security or partnership interest, or make any change in my capital
structure, except to the extent required by any agreements signed prior to
this Agreement and disclosed to you or with your prior written consent.
S. Loan Obligations. I will make full and timely payment of all principal
and interest obligations, and comply with the other terms and agreements
contained in this Agreement and in the other Loan documents.
T. Insurance. I will obtain and maintain insurance with insurers, in
amounts and coverages that are acceptable to you and customary with
industry practice. This may include without limitation insurance policies
for public liability, fire, hazard and extended risk, workers compensation,
and, at your request, business interruption and/or rent loss insurance. At
your request, I will deliver to you certified copies of all of these
insurance policies, binders or certificates. I will obtain and maintain a
mortgagee or loss payee endorsement for you when these endorsements are
available. I will immediately notify you of cancellation or termination of
insurance. I will require all insurance policies to provide you with at
least 10 days prior written notice to you of cancellation or modification.
I consent to you using or disclosing information relative to any contract
of insurance required by the Loan for the purpose of replacing this
insurance. I also authorize my insurer and you to exchange all relevant
information related to any contract of insurance required by any document
executed as part of this Loan.
U. Property Maintenance. I will keep all tangible and intangible property
that I consider necessary or useful in my business in good working
condition by making all needed repairs, replacements and improvements and
by making all rental, lease or other payments due on this property.
V. Property Loss. I will immediately notify you, and the insurance company
when appropriate, of any material casualty, loss or depreciation to the
Property or to my other property that affects my business.
W. Accounts Receivable Collection. I will collect and otherwise enforce all
of my unpaid Accounts Receivable at my cost and expense, until you end my
authority to do so, which you may do at any time to protect your best
interests. I will not sell, assign or otherwise dispose of any Accounts
Receivable without your written consent. I will not commingle the Accounts
Receivable proceeds with any of my other property.
X. Loan Balance. I will pay down this revolving draw Loan's outstanding
Principal to $0.00 for a period of thirty days during the term of the loan.
Y. Additional Covenants. 1.) MINIMUM TANGIBLE NET WORTH: DCI, Inc. will
maintain a Total Debt to Tangible Net Worth ratio, determined under
consistently applied generally accepted accounting principles, of 3:1 or
less calculated at my fiscal year end. Total debt will also include
inter-company note. For determining tangible net worth, total assets will
exclude all intangible assets including without limitation goodwill,
patents, trademarks, trade names, copyrights, and franchises, and will also
include the addition of any Subordinated debt. DCI, Inc. will also maintain
a tangible net worth, determined under consistently applied generally
accepted accounting principles, of $2,000,000.00 or more calculated at my
fiscal year end. 2.) Elecsys Corporation will inform and submit for
approval any incurrence of additional indebtedness in excess of $100,000.00
per transaction.
7. DEFAULT. I will be in default if any of the following occur.
A. Payments. I fail to make a payment in full when due.
B. Insolvency or Bankruptcy. I make an assignment for the benefit of
creditors or become insolvent, either because my liabilities exceed my
assets or I am unable to pay my debts as they become due; or I petition for
protection under federal, state or local bankruptcy, insolvency or debtor
relief laws, or am the subject of a petition or action under such laws and
fail to have the petition or action dismissed within a reasonable period of
time not to exceed 60 days.
C. Business Termination. I merger, dissolve, reorganize, end my business or
existence, or a partner or majority owner dies or is declared legally
incompetent.
D. Failure to Perform. I fail to perform any condition or to keep any
promise or covenant of this Agreement.
E. Other Documents. A default occurs under the terms of any other
transaction document.
F. Other Agreements. I am in default on any other debt or agreement I have
with you.
G. Misrepresentation. I make any verbal or written statement or provide any
financial information that is untrue, inaccurate, or conceals a material
fact at the time it is made or provided.
H. Judgment. I fail to satisfy or appeal any judgment against me.
I. Forfeiture. The Property is used in a manner or for a purpose that
threatens confiscation by a legal authority.
J. Name Change. I change my name or assume an additional name without
notifying you before making such a change.
K. Property Transfer. I transfer all or a substantial part of my money or
property.
L. Property Value. The value of the Property declines or is impaired.
M. Material Change. Without first notifying you, there is a material change
in my business, including ownership, management, and financial conditions.
N. Insecurity. You reasonably believe that you are insecure.
8. REMEDIES. After I default, and after you give any legally required notice and
opportunity to cure the default, you may at your option do any one or more of
the following.
A. Acceleration. You may make all or any part of the amount owing by the
terms of the Loan immediately due.
B. Sources. You may use any and all remedies you have under state or
federal law or in any instrument securing the Loan.
C. Insurance Benefits. You may make a claim for any and all insurance
benefits or refunds that may be available on my default.
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D. Payments Made On My Behalf. Amounts advanced on my behalf will be
immediately due and may be added to the balance owing under the terms of
the Loan, and accrue interest at the highest post-maturity interest rate.
E. Termination. You may terminate my right to obtain advances and may
refuse to make any further extensions of credit.
F. Set-Off. You may use the right of set-off. This means you may set-off
any amount due and payable under the terms of the Loan against any right I
have to receive money from you.
My right to receive money from you includes any deposit or share account
balance I have with you; any money owed to me on an item presented to you
or in your possession for collection of exchange; and any repurchase
agreement or other non-deposit obligation. "Any amount due and payable
under the terms of the Loan" means the total amount to which you are
entitled to demand payment under the terms of the Loan at the time you
set-off.
Subject to any other written contract, if my right to receive money from
you is also owned by someone who has not agreed to pay the Loan, your right
of set-off will apply to my interest in the obligation and to any other
amounts I could withdraw on my sole request or endorsement.
Your right of set-off does not apply to an account or other obligation
where my rights arise only in a representative capacity. It also does not
apply to any Individual Retirement Account or other tax-deferred retirement
account.
You will not be liable for the dishonor of any check when the dishonor
occurs because you set-off against any of my accounts. I agree to hold you
harmless from any such claims arising as a result of your exercise of your
right of set-off.
G. Waiver. Except as otherwise required by law, by choosing any one or more
of these remedies you do not give up your right to use any other remedy.
You do not waive a default if you choose not to use a remedy. By electing
not to use any remedy, you do not waive your right to later consider the
event a default and to use any remedies if the default continues or occurs
again.
9. COLLECTION EXPENSES AND ATTORNEYS' FEES. On or after Default, to the extent
permitted by law, I agree to pay all expenses of collection, enforcement or
protection of your rights and remedies under this Agreement. Expenses include,
but are not limited to, attorneys' fees, court costs and other legal expenses,
as allowed by law. These expenses are due and payable immediately. If not paid
immediately, these expenses will bear interest from the date of payment until
paid in full at the highest interest rate in effect as provided for in the terms
of this Loan. All fees and expenses will be secured by the Property I have
granted to you, if any. To the extent permitted by the United States Bankruptcy
Code, I agree to pay the reasonable attorneys' fees you incur to collect this
debt as awarded by any court exercising jurisdiction under the Bankruptcy Code.
10. APPLICABLE LAW. This Agreement is governed by the laws of Missouri, the
United States of America and to the extent required, by the laws of the
jurisdiction where the Property is located. In the event of a dispute, the
exclusive forum, venue and place of jurisdiction will be in Missouri, unless
otherwise required by law.
11. JOINT AND INDIVIDUAL LIABILITY AND SUCCESSORS. My obligation to pay this
Loan is independent of the obligation of any other person who has also agreed to
pay it. You may xxx me alone, or anyone else who is obligated on this Loan, or
any number of us together, to collect this Loan. Extending this Loan or new
obligations under this Loan, will not affect my duty under this Loan and I will
still be obligated to pay this Loan. The duties and benefits of this Loan will
bind and benefit the successors and assigns of you and me.
12. AMENDMENT, INTEGRATION AND SEVERABILITY. This Agreement may not be amended
or modified by oral agreement. No amendment or modification of this Agreement is
effective unless made in writing and executed by you and me. This Agreement is
the complete and final expression of the understanding between you and me. If
any provision of this Agreement is unenforceable, then the unenforceable
provision will be severed and the remaining provisions will still be
enforceable.
13. INTERPRETATION. Whenever used, the singular includes the plural and the
plural includes the singular. The section headings are for convenience only and
are not to be used to interpret or define the terms of this Agreement.
14. NOTICE, FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Unless otherwise
required by law, any notice will be given by delivering it or mailing it by
first class mail to the appropriate party's address listed in the DATE AND
PARTIES section, or to any other address designated in writing. Notice to one
party will be deemed to be notice to all parties. I will inform you in writing
of any change in my name, address, or other application information. I will
provide you any financial statement or information you request. All financial
statements and information I give you will be correct and complete. I agree to
sign, deliver, and file any additional documents or certifications that you may
consider necessary to perfect, continue, and preserve my obligations under this
Loan and to confirm your lien status on any Property. Time is of the essence.
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ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER) AND US (LENDER) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.
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15. SIGNATURES. By signing, I agree to the terms contained in this Agreement. I
also acknowledge receipt of a copy of this Agreement.
BORROWER:
Elecsys Corporation
/s/ Xxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxx X. Xxxxx, Chairman
DCI, Inc.
/s/ Xxxx X. Xxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxx, President
Page 5 of 5
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Commerical Loan Agreement
Elecsys Corporation
KSehovski
Page 5 of 5
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