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