Bank of America, N.A.
LOAN AGREEMENT
This Loan Agreement (the "Agreement") dated as of August 31,
1999, by and between Bank of America, N.A. a national banking
association ("Bank") and the Borrower described below.
[This Agreement contains some provisions preceded by boxes. A
box which is not marked means that the provision beside it is not
applicable to this transaction.]
In consideration of the Loan or Loans described below and the
mutual covenants and agreements contained herein, and intending to be
legally bound hereby, Bank and Borrower agree as follows:
1. DEFINITIONS AND REFERENCE TERMS. In addition to any other
terms defined herein, the following terms shall have the meaning set
forth with respect thereto:
A. Borrower: Air T, Inc.
CSA Air, Inc
Mountain Air Cargo, Inc.
Mountain Aircraft Services, LLC
Global Ground Support, LLC
B. Borrower's Address:
0000 Xxxxxxx Xxxx, Xxxxxx, Xxxxx Xxxxxxxx 00000
C. Current Assets. Current Assets means the aggregate
amount of all of Borrower's assets which would, in accordance with
GAAP, properly be defined as
current assets.
D. Current Liabilities. Current Liabilities means the
aggregate amount of all current liabilities as determined in
accordance with GAAP, but in any event shall include all
liabilities except those having a maturity date which is more than
one year from the date as of which such computation is being made.
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E. Hazardous Materials. Hazardous Materials include all
materials defined as hazardous materials or substances under any
local, state or federal environmental laws, rules or regulations,
and petroleum, petroleum products, oil and asbestos.
F. Loan. Any loan described in Section 2 hereof and any
subsequent loan which states that it is subject to this Loan
Agreement.
G. Loan Documents. Loan Documents means this Loan
Agreement and any and all promissory notes executed by Borrower in
favor of Bank and all other documents, instruments, guarantees,
certificates and agreements executed and/or delivered by Borrower,
any guarantor or third party in connection with any Loan.
H. Tangible Net Worth. Tangible Net Worth means the
amount by which total assets exceed total liabilities in accordance
with GAAP.
I. Accounting Terms. All accounting terms not
specifically defined or specified herein shall have the meanings
generally attributed to such terms under generally accepted
accounting principles ("GAAP"), as in effect from time to time,
consistently applied, with respect to the financial statements
referenced in Section 3.H. hereof.
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2. LOANS.
A. Loan. Bank hereby agrees to make (or has made) one
or more loans to Borrower in the aggregate principal face amount of
$7,000,000.00. The obligation to repay the loans is evidenced by a
promissory note or notes dated August 31, 1999, (the promissory note
or notes together with any and all renewals, extensions or
rearrangements thereof being hereafter collectively referred to as
the "Note") having a maturity date, repayment terms and interest rate
as set forth in the Note.
i . [X] Revolving Credit Feature. The Loan provides
for a revolving line of credit (the "Line") under which Borrower may
from time to time, borrow, repay and re-borrow funds.
ii. [] Clean-Up Period. Borrower shall maintain a
zero balance on the Line for a period of at least ____ consecutive
days during [] each fiscal year [] any consecutive twelve month
period.
iii. [] Borrowing Base. The Line is subject to the
Borrowing Base Agreement attached hereto as Exhibit "A" and by
reference made a part hereof.
iv. [] Usage Fee. Borrower will pay hereafter on
________________, 19_____ and on the ______ day of each
_________________ for the period from and including the date the
Line was established to and including the maturity date of the Line,
a usage fee at a rate per annum of _______% of the [] average daily
unused portion of the Line during such period [] average daily used
portion of the Line during such period [] committed amount of the
Line. The Borrower may at any time upon written notice to the Bank
permanently reduce the amount of the Line at which time the
obligation of the Borrower to pay a usage fee shall thereupon
correspondingly be reduced.
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v. [X] Letter of Credit Subfeature. As a
subfeature under the Line, Bank may from time to time up to and
including August 31, 2000, issue letters of credit for the account of
Borrower (each, a "Letter of Credit" and collectively, "Letters of
Credit"); provided, however, that the form and substance of each
Letter of Credit shall be subject to approval by Bank in its sole
discretion; and provided further that the aggregate undrawn amount of
all outstanding Letters of Credit shall not at any time exceed
$4,000,000. Each Letter of Credit shall be issued for a term
designated by Borrower, provided, however, that no Letter of Credit
shall have an expiration date subsequent to August 31, 2000. The
undrawn amount of all Letters of Credit plus any and all amounts paid
by Bank in connection with drawings under any Letter of Credit for
which the Bank has not been reimbursed shall be reserved under the
Line and shall not be available for advances thereunder. Each draft
paid by Bank under a Letter of Credit shall be deemed an advance
under the Line and shall be repaid in accordance with the terms of
the Line; provided however, that if the Line is not available for any
reason whatsoever, at the time any draft is paid by Bank, or if
advances are not available under the Line in such amount due to any
limitation of borrowing set forth herein, then the full amount of
such drafts shall be immediately due and payable, together with
interest thereon, from the date such amount is paid by Bank to the
date such amount is fully repaid by Borrower, at that rate of
interest applicable to advances under the Line. In such event,
Borrower agrees that Bank, at Bank's sole discretion may debit
Borrower's deposit account with Bank for the amount of such draft.
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents
and warrants to Bank as follows:
A. Good Standing. Borrower is a corporation duly
organized, validly existing and in good standing under the laws of
Deleware and has the power and authority to own its property and to
carry on its business in each jurisdiction in which Borrower does
business.
B. Authority and Compliance. Borrower has full power and
authority to execute and deliver the Loan Documents and to incur and
perform the obligations provided for therein, all of which have been
duly authorized by all proper and necessary action of the appropriate
governing body of Borrower. No consent or approval of any public
authority or other third party is required as a condition to the
validity of any Loan Document, and Borrower is in compliance with all
laws and regulatory requirements to which it is subject.
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C. Binding Agreement. This Agreement and the other Loan
Documents executed by Borrower constitute valid and legally binding
obligations of Borrower, enforceable in accordance with their terms.
D. Litigation. There is no proceeding involving Borrower
pending or, to the knowledge of Borrower, threatened before any court
or governmental authority, agency or arbitration authority, except as
disclosed to Bank in writing and acknowledged by Bank prior to the
date of this Agreement.
E. No Conflicting Agreements. There is no charter,
bylaw, stock provision, partnership agreement or other document
pertaining to the organization, power or authority of Borrower and no
provision of any existing agreement, mortgage, indenture or contract
binding on Borrower or affecting its property, which would conflict
with or in any way prevent the execution, delivery or carrying out of
the terms of this Agreement and the other Loan Documents.
F. Ownership of Assets. Borrower has good title to its
assets, and its assets are free and clear of liens, except those
granted to Bank and as disclosed to Bank in writing prior to the date
of this Agreement.
G. Taxes. All taxes and assessments due and payable by
Borrower have been paid or are being contested in good faith by
appropriate proceedings and the Borrower has filed all tax returns
which it is required to file.
H. Financial Statements. The financial statements of
Borrower heretofore delivered to Bank have been prepared in
accordance with GAAP applied on a consistent basis throughout the
period involved and fairly present Borrower's financial condition as
of the date or dates thereof, and there has been no material adverse
change in Borrower's financial condition or operations since June 30,
1997. All factual information furnished by Borrower to Bank in
connection with this Agreement and the other Loan Documents is and
will be accurate and complete on the date as of which such
information is delivered to Bank and is not and will not be
incomplete by the omission of any material fact necessary to make
such information not misleading.
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I. Place of Business. Borrower's chief executive office
is located at
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
J. Environmental. The conduct of Borrower's business
operations and the condition of Borrower's property does not and will
not violate any federal laws, rules or ordinances for environmental
protection, regulations of the Environmental Protection Agency, any
applicable local or state law, rule, regulation or rule of common law
or any judicial interpretation thereof relating primarily to the
environment or Hazardous Materials.
K. Continuation of Representations and Warranties. All
representations and warranties made under this Agreement shall be
deemed to be made at and as of the date hereof and at and as of the
date of any advance under any Loan.
4. AFFIRMATIVE COVENANTS. Until full payment and performance
of all obligations of Borrower under the Loan Documents, Borrower
will, unless Bank consents otherwise in writing (and without limiting
any requirement of any other Loan Document):
A. Financial Condition. Maintain Borrower's
financial condition as follows, determined in accordance with
GAAP applied on a consistent basis throughout the period
involved except to the extent modified by the following
definitions:
I. Maintain at all times a ratio of debt to tangible
net worth of not greater than 1.0 to 1.0.
II. Maintain on a rolling 4 quarter basis a ratio of Funded Debt to
EBITDA of not greater than:
Quarter Ending Ratio
9/30/99 4.25 to 1.0
12/31/99 3.5 to 1.0
3/31/00 and thereafter 3.0 to 1.0
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B. Financial Statements and Other Information. Maintain
a system of accounting satisfactory to Bank and in accordance with
GAAP applied on a consistent basis throughout the period involved,
permit Bank's officers or authorized representatives to visit and
inspect Borrower's books of account and other records at such
reasonable times and as often as Bank may desire, and pay the
reasonable fees and disbursements of any accountants or other agents
of Bank selected by Bank for the foregoing purposes. Unless written
notice of another location is given to Bank, Borrower's books and
records will be located at Borrower's chief executive office set
forth above. All financial statements called for below shall be
prepared in form and content acceptable to Bank and by independent
certified public accountants acceptable to Bank.
In addition, Borrower will:
i. Furnish to Bank annual audited financial statements and 10K
filings of Borrower for each fiscal year of Borrower, within
150 days after the close of each such fiscal year.
ii. Furnish to Bank certified copies of 10Q filings and related
financial statements including a balance sheet and income
statement for each quarter of each fiscal year within 60 days
after the close of each such period.
iii. Furnish to Bank a compliance certificate for (and executed
by an authorized representative of) Borrower concurrently with
and dated as of the date of delivery of each of the financial
statements as required in paragraphs i and ii above, containing
(a) a certification that the financial statements of even date
are true and correct and that the Borrower is not in default
under the terms of this Agreement, and (b) computations and
conclusions, in such detail as Bank may request, with respect to
compliance with this Agreement, and the other Loan Documents,
including computations of all quantitative covenants.
vii. Furnish to Bank promptly such additional information,
reports and statements respecting the business operations and
financial condition of Borrower from time to time, as Bank may
reasonably request.
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C. Insurance. Maintain insurance with responsible
insurance companies on such of its properties, in such amounts and
against such risks as is customarily maintained by similar businesses
operating in the same vicinity, specifically to include fire and
extended coverage insurance covering all assets, business
interruption insurance, workers compensation insurance and liability
insurance, all to be with such companies and in such amounts as are
satisfactory to Bank and providing for at least 30 days prior notice
to Bank of any cancellation thereof. Satisfactory evidence of such
insurance will be supplied to Bank prior to funding under the Loan(s)
and 30 days prior to each policy renewal.
D. Existence and Compliance. Maintain its existence,
good standing and qualification to do business, where required and
comply with all laws, regulations and governmental requirements
including, without limitation, environmental laws applicable to it or
to any of its property, business operations and transactions.
E. Adverse Conditions or Events. Promptly advise Bank in
writing of (i) any condition, event or act which comes to its
attention that would or might materially adversely affect Borrower's
financial condition or operations or Bank's rights under the Loan
Documents, (ii) any litigation filed by or against Borrower, (iii)
any event that has occurred that would constitute an event of default
under any Loan Documents and (iv) any uninsured or partially
uninsured loss through fire, theft, liability or property damage in
excess of an aggregate of $500,000.
F. Taxes and Other Obligations. Pay all of its taxes,
assessments and other obligations, including, but not limited to
taxes, costs or other expenses arising out of this transaction, as
the same become due and payable, except to the extent the same are
being contested in good faith by appropriate proceedings in a
diligent manner.
G. Maintenance. Maintain all of its tangible property in
good condition and repair and make all necessary replacements
thereof, and preserve and maintain all licenses, trademarks,
privileges, permits, franchises, certificates and the like necessary
for the operation of its business.
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H. Environmental. Immediately advise Bank in writing
of (i) any and all enforcement, cleanup, remedial, removal, or other
governmental or regulatory actions instituted, completed or
threatened pursuant to any applicable federal, state, or local laws,
ordinances or regulations relating to any Hazardous Materials
affecting Borrower's business operations; and (ii) all claims made or
threatened by any third party against Borrower relating to damages,
contribution, cost recovery, compensation, loss or injury resulting
from any Hazardous Materials. Borrower shall immediately notify Bank
of any remedial action taken by Borrower with respect to Borrower's
business operations. Borrower will not use or permit any other party
to use any Hazardous Materials at any of Borrower's places of
business or at any other property owned by Borrower except such
materials as are incidental to Borrower's normal course of business,
maintenance and repairs and which are handled in compliance with all
applicable environmental laws. Borrower agrees to permit Bank, its
agents, contractors and employees to enter and inspect any of
Borrower's places of business or any other property of Borrower at
any reasonable times upon three (3) days prior notice for the
purposes of conducting an environmental investigation and audit
(including taking physical samples) to insure that Borrower is
complying with this covenant and Borrower shall reimburse Bank on
demand for the costs of any such environmental investigation and
audit. Borrower shall provide Bank, its agents, contractors,
employees and representatives with access to and copies of any and
all data and documents relating to or dealing with any Hazardous
Materials used, generated, manufactured, stored or disposed of by
Borrower's business operations within five (5) days of the request
therefore.
5. NEGATIVE COVENANTS. Until full payment and performance of
all obligations of Borrower under the Loan Documents, Borrower will
not, without the prior written consent of Bank (and without limiting
any requirement of any other Loan Documents):
[] A. Capital Expenditures. Make capital expenditures
during each fiscal year (including capitalized leases) exceeding in
the aggregate the lesser of $__________.
[] B. Lease Expenditures. Incur new obligations for the
lease or hire of real or personal property requiring payments in any
fiscal year in excess of an aggregate of $__________.
[] C. Compensation. Pay by way of salary, bonus,
distribution, dividend, lease payment or otherwise, aggregate annual
compensation to ______________________, and
__________________________ in excess of:
$________________ during fiscal year 19_____
$________________ during fiscal year 19_____
$________________ during fiscal year 19_____
$________________ during fiscal year 19_____
D. Transfer of Assets or Control. Sell, lease, assign or
otherwise dispose of or transfer any assets, except in the normal
course of its business, or enter into any merger or consolidation, or
transfer control or ownership of the Borrower or form or acquire any
subsidiary.
E. Liens. Grant, suffer or permit any contractual or
noncontractual lien on or security interest in its assets, except in
favor of Bank, or fail to promptly pay when due all lawful claims,
whether for labor, materials or otherwise.
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F. Extensions of Credit. Make or permit any subsidiary
to make, any loan or advance to any person or entity, or purchase or
otherwise acquire, or permit any subsidiary to purchase or otherwise
acquire, any capital stock, assets, obligations, or other securities
of, make any capital contribution to, or otherwise invest in or
acquire any interest in any entity, or participate as a partner or
joint venturer with any person or entity, except for the purchase of
direct obligations of the United States or any agency thereof with
maturities of less than one year.
G. Borrowings. Create, incur, assume or become liable in
any manner for any indebtedness (for borrowed money, deferred payment
for the purchase of assets, lease payments, as surety or guarantor
for the debt for another, or otherwise) other than to Bank, except
for normal trade debts incurred in the ordinary course of Borrower's
business, and except for existing indebtedness disclosed to Bank in
writing and acknowledged by Bank prior to the date of this Agreement.
[] H. Dividends and Distributions. Make any distribution
(other than dividends payable in capital stock of Borrower) on any
shares of any class of its capital stock or, if Borrower is a
partnership, make any distribution to any partner, or apply any of
its property or assets to the purchase, redemption or other
retirement of any shares of any class of capital stock of or any
partnership interest in Borrower exceeding in the aggregate []
$_______________ per fiscal year, [] _____% of net profit per fiscal
year, or in any way amend its capital structure.
I. Character of Business. Change the general character
of business as conducted at the date hereof, or engage in any type of
business not reasonably related to its business as presently
conducted.
[] J. Management Change. Make any substantial change in its
present executive or management personnel.
6. DEFAULT. Borrower shall be in default under this Agreement
and under each of the other Loan Documents if it shall default in the
payment of any amounts due and owing under the Loan or should it fail
to timely and properly observe, keep or perform any term, covenant,
agreement or condition in any Loan Document or in any other loan
agreement, promissory note, security agreement, deed of trust, deed
to secure debt, mortgage, assignment or other contract securing or
evidencing payment of any indebtedness of Borrower to Bank or any
affiliate or subsidiary of Bank of America Corporation.
7. REMEDIES UPON DEFAULT. If an event of default shall occur,
Bank shall have all rights, powers and remedies available under each
of the Loan Documents as well as all rights and remedies available at
law or in equity.
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8. NOTICES. All notices, requests or demands which any party
is required or may desire to give to any other party under any
provision of this Agreement must be in writing delivered to the other
party at the following address:
Borrower:
Air T, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Bank:
Bank of America, NA
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
or to such other address as any party may designate by written notice
to the other party. Each such notice, request and demand shall be
deemed given or made as follows:
A. If sent by mail, upon the earlier of the date of
receipt or five (5) days after deposit in the U.S. Mail, first class
postage prepaid;
B. If sent by any other means , upon delivery.
9. COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay to
Bank immediately upon demand the full amount of all costs and
expenses, including reasonable attorneys' fees (to include outside
counsel fees and all allocated costs of Bank's in-house counsel if
permitted by applicable law), incurred by Bank in connection with (a)
negotiation and preparation of this Agreement and each of the Loan
Documents, and (b) all other costs and attorneys' fees incurred by
Bank for which Borrower is obligated to reimburse Bank in accordance
with the Terms of the Loan Documents.
10. MISCELLANEOUS. Borrower and Bank further covenant and
agree as follows, without limiting any requirement of any other Loan
Document:
A. Cumulative Rights and No Waiver. Each and every right
granted to Bank under any Loan Document, or allowed it by law or
equity shall be cumulative of each other and may be exercised in
addition to any and all other rights of Bank, and no delay in
exercising any right shall operate as a waiver thereof, nor shall any
single or partial exercise by Bank of any right preclude any other or
future exercise thereof or the exercise of any other right. Borrower
expressly waives any presentment, demand, protest or other notice of
any kind, including but not limited to notice of intent to accelerate
and notice of acceleration. No notice to or demand on Borrower in
any case shall, of itself, entitle Borrower to any other or future
notice or demand in similar or other circumstances.
B. Applicable Law. This Loan Agreement and the rights
and obligations of the parties hereunder shall be governed by and
interpreted in accordance with the laws of D.C. and applicable United
States federal law.
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C. Amendment. No modification, consent, amendment or
waiver of any provision of this Loan Agreement, nor consent to any
departure by Borrower therefrom, shall be effective unless the same
shall be in writing and signed by an officer of Bank, and then shall
be effective only in the specified instance and for the purpose for
which given. This Loan Agreement is binding upon Borrower, its
successors and assigns, and inures to the benefit of Bank, its
successors and assigns; however, no assignment or other transfer of
Borrower's rights or obligations hereunder shall be made or be
effective without Bank's prior written consent, nor shall it relieve
Borrower of any obligations hereunder. There is no third party
beneficiary of this Loan Agreement.
D. Documents. All documents, certificates and other
items required under this Loan Agreement to be executed and/or
delivered to Bank shall be in form and content satisfactory to Bank
and its counsel.
E. Partial Invalidity. The unenforceability or
invalidity of any provision of this Loan Agreement shall not affect
the enforceability or validity of any other provision herein and the
invalidity or unenforceability of any provision of any Loan Document
to any person or circumstance shall not affect the enforceability or
validity of such provision as it may apply to other persons or
circumstances.
F. Indemnification. Notwithstanding anything to the
contrary contained in Section 10(G), Borrower shall indemnify, defend
and hold Bank and its successors and assigns harmless from and
against any and all claims, demands, suits, losses, damages,
assessments, fines, penalties, costs or other expenses (including
reasonable attorneys' fees and court costs) arising from or in any
way related to any of the transactions contemplated hereby, including
but not limited to actual or threatened damage to the environment,
agency costs of investigation, personal injury or death, or property
damage, due to a release or alleged release of Hazardous Materials,
arising from Borrower's business operations, any other property owned
by Borrower or in the surface or ground water arising from Borrower's
business operations, or gaseous emissions arising from Borrower's
business operations or any other condition existing or arising from
Borrower's business operations resulting from the use or existence of
Hazardous Materials, whether such claim proves to be true or false.
Borrower further agrees that its indemnity obligations shall include,
but are not limited to, liability for damages resulting from the
personal injury or death of an employee of the Borrower, regardless
of whether the Borrower has paid the employee under the workmen' s
compensation laws of any state or other similar federal or state
legislation for the protection of employees. The term "property
damage" as used in this paragraph includes, but is not limited to,
damage to any real or personal property of the Borrower, the Bank,
and of any third parties. The Borrower's obligations under this
paragraph shall survive the repayment of the Loan and any deed in
lieu of foreclosure or foreclosure of any Deed to Secure Debt, Deed
of Trust, Security Agreement or Mortgage securing the Loan.
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G. Survivability. All covenants, agreements,
representations and warranties made herein or in the other Loan
Documents shall survive the making of the Loan and shall continue in
full force and effect so long as the Loan is outstanding or the
obligation of the Bank to make any advances under the Line shall not
have expired.
[] H. Updated Appraisals and Maintenance of Collateral
Value. Bank may at its option obtain at Borrower's expense, once
every _____________ (or as otherwise requested by Bank) an appraisal
of any real property securing payment of the Loan (the "Real
Property") prepared in accordance with applicable bank regulatory
agency regulations and the written instructions from Bank by a third
party appraiser engaged directly by Bank. The costs of each such
appraisal shall be payable by Borrower to Bank on demand. If such
appraisal shows the market value of the Real Property has declined,
Borrower agrees that upon demand of Bank it will immediately either
pledge additional collateral in form and substance satisfactory to
Bank or make such payments as shall be necessary to reduce the
principal balance outstanding under the Loan, so that in either case
the principal amount outstanding under the Loan shall not exceed
______% of the market value of the Real Property and any additional
collateral.
11. ADDITIONAL PROVISIONS: [] The Borrower shall comply with
those additional provisions set forth on Exhibit "__" attached hereto
and by reference made a part hereof.
12. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE
PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR
RELATING TO THIS, INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED
INSTRUMENTS, AGREEMENTS OR DOCUMENTS, INCLUDING ANY CLAIM BASED ON
OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING
ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT
APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF
J.A.M.S./ENDISPUTE OR ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE
"SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY INCONSISTENCY,
THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION AWARD
MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS
AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED
PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO
WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER
SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN
THE CITY OF THE BORROWER'S DOMICILE AT TIME OF THE EXECUTION OF THIS
INSTRUMENT, AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO
WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE
COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE
ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO
EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION
PROVISION SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY
OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS
CONTAINED IN THIS ARBITRATION PROVISION; OR (II) BE A WAIVER BY THE
BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE
BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT
LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL
PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR
ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF,
WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE BANK MAY
EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR
OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER
THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF
HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR
FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A
WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH
ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM
OCCASIONING RESORT TO SUCH REMEDIES.
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13. NO ORAL AGREEMENT. THIS WRITTEN LOAN AGREEMENT AND THE
OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed under seal by their duly authorized
representatives as of the date first above written.
BORROWER: BANK:
Air T, Inc. Bank of America, NA
By: _____________________(Seal) By: _______________________ (Seal)
Name:______________________ Name: C. Xxxxxx Xxxxxxxx, Xx.
Title: _______________________ Title: Vice President
[Corporate Seal]
Attest:________________________ (Seal)
Name:____________________________
Title:_____________________________
BORROWER: BORROWER:
CSA Air, Inc. Mountain Air Cargo, Inc.
By: ______________________(Seal) By:___________________________ (Seal)
Name:______________________ Name: ____________________________
Title: _______________________ Title:_____________________________
[Corporate Seal] [Corporate Seal]
Attest:_____________________(Seal) Attest:________________________ (Seal)
Name:____________________________ Name:____________________________
Title:_____________________________ Title:_____________________________
BORROWER: BORROWER:
Mountain Aircraft Services, LLC Global Ground Support, LLC
By: _______________________(Seal) By:______________________________ (Seal)
Name:______________________ Name: ____________________________
Title:_______________________ Title:____________________________
[Corporate Seal] [Corporate Seal]
Attest:____________________ (Seal) Attest:________________________ (Seal)
Name:____________________________ Name:____________________________
Title:_____________________________ Title:_____________________________
33
INDEX
Accounting Terms, 1
Adverse Conditions or Events, 6
AFFIRMATIVE COVENANTS, 4
Amendment, 8
Applicable Law, 8
ARBITRATION, 9
Authority and Compliance., 2
Bank, 1
Binding Agreement, 3
Borrower, 1
Borrower's Address, 1
Borrowing Base, 2
Borrowings, 7
Capital Expenditures, 6
Cash flow coverage ratio, 4
Character of Business, 7
Clean-Up Period, 2
Compensation, 6
Compliance certificate, 5
Continuation of Representation and Warranties, 4
COSTS, EXPENSES AND ATTORNEY'S FEES, 8
Cumulative Rights and No Waiver, 8
Current Assets, 1
Current Liabilities, 1
DEFAULT, 7
Dividends and Distributions, 7
Documents, 8
Environmental Matters, 3
Existence and Compliance, 6
Extensions of Credit, 7
Financial Condition, 4
Financial Statements, 3
Financial Statements and Other Information, 5
34
GAAP, 1
Good Standing, 2
Hazardous Materials, 1
Indemnification, 8
Insurance, 5
Lease Expenditures., 6
Letter of Credit Subfeature, 2
Liens, 7
Litigation, 3
Loan, 1
Loan Documents., 1
Maintenance of property in good condition, 6
Maintenance of Collateral Value, 9
MISCELLANEOUS, 8
NEGATIVE COVENANTS, 6
Net working capital, 4
No Conflicting Agreements, 3
NOTICES, 7
Notification of Environmental Claims, 6
Ownership of Assets, 3
Partial Invalidity, 8
Place of Business, 3
Ratio of Current Assets to Current Liabilities, 4
Ratio of total liabilities to Tangible Net Worth, 4
REMEDIES UPON DEFAULT, 7
Revolving Credit Feature, 2
Survivability, 9
Tangible Net Worth, 1, 4
Taxes, 3
Taxes and Other Obligations, 6
Transfer of Assets or Control, 7
Updated Appraisals, 9
Usage Fee, 2
35
