exv10w45b



 



Exhibit 10.45B


CONSENT AND AMENDMENT NO. 2 TO LOAN AGREEMENT



This CONSENT AND AMENDMENT NO. 2 TO LOAN AGREEMENT (this “Amendment”) is dated
as of March 25, 2003 by and among Allied Capital Corporation, a Maryland
corporation (“Holder”), Simula, Inc., an Arizona corporation (“Simula”), and
the direct and indirect subsidiaries of Simula listed on the signature pages
hereof.


WHEREAS, Simula, the Subsidiaries of Simula (collectively with Simula, the
“Companies”) and Holder are parties to a certain Loan Agreement dated as of
September 26, 2001 (as amended, supplemented or otherwise modified from time to
time, the “Loan Agreement”);


WHEREAS, Simula has advised Holder that Simula desires to sell, or to contract
to sell, its owned real properties (the “Properties”) located as (i) 537
Sweeten Creek Industrial Park Drive, Asheville, North Carolina 28803 and (ii)
10008 South 50th Place, Phoenix, Arizona 85044, which property is subject to a
Lien in favor of Holder pursuant to that certain Junior Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing dated as of
September 26, 2001 executed by Simula in favor of Holder.


WHEREAS, Simula has further advised Holder that Simula desires to sell, or to
cause one of its Subsidiaries to sell, the equipment described on Exhibit A
hereto (the “Designated Equipment”), which Designed Equipment is subject to a
Lien in favor of Holder pursuant that certain Security Agreement dated as of
September 26, 2001.
WHEREAS, Absent the prior written consent of Holder, disposition of the
Properties and the Designated Equipment by Simula would constitute separate
breaches of Section 5.3 of the Loan Agreement and separate Events of Default
pursuant to Section 7.1(c) of the Loan Agreement. Simula has requested that
Holder consent to the disposition of the Properties and the Designated
Equipment by Simula and its Subsidiaries, free and clear of any Lien in favor
of Holder.


WHEREAS, Simula has further requested that Holder agree to amend the Loan
Agreement in certain respects.


NOW THEREFORE, in consideration of the mutual conditions and agreements set
forth in the Loan Agreement and this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:


Definitions. Capitalized terms used in this Amendment, unless otherwise
defined herein, shall have the meanings ascribed to such terms in the Loan
Agreement.


Consent. Notwithstanding any provisions of the Loan Agreement to the contrary,
in reliance on the representations, warranties, covenants and agreements set
forth herein, and subject to the consummation of the conditions precedent set
forth herein, Holder hereby consents to the disposition of the Properties and
the Designated Equipment by Simula or its Subsidiaries, free and clear of any
Lien in favor of Holder; provided, however, that the Simula or its Subsidiaries
shall use any and all net proceeds available to Simula and its Subsidiaries in
connection with such dispositions to repay Debt that is pari passu with, or
ranks superior to, the Obligations. Except as expressly provided herein, the
foregoing consent shall not constitute (a) a modification or alteration of the
terms, conditions or covenants of the Loan Agreement, any Security Document or
any document entered into in connection therewith, or (b) a waiver, release or
limitation upon the exercise by Holder of any of its rights, legal or
equitable, hereunder or under the Loan Agreement, any Security Document or any
Loan Document. Except as set forth above, Holder reserves any and all rights
and remedies which it has had, has or may have under the Loan Agreement, each
Security Document and each Loan Document.


Amendments. In reliance on the representations, warranties, covenants and
agreements set forth herein, and subject to the consummation of the conditions
precedent set forth herein,, the Loan Agreement is hereby amended as follows:


 






 


Paragraph (e) of Section 4.13 of the Loan Agreement is hereby amended and
restated in its entirety, as follows:



	 	(e)	 	ASD Capital Expenditures and Capitalized Leases. No
Company will, nor will any Company permit any of its
Subsidiaries to, make any ASD Capital Expenditure or enter
into any ASD Capitalized Lease Obligation, if the sum of
(i) the aggregate amount of all ASD Capital Expenditures
(including the ASD Capital Expenditure in question) made by
the Companies and their Subsidiaries during each fiscal
quarter of the Companies ending as of the dates set forth
below, plus (ii) the aggregate amount of all ASD
Capitalized Lease Obligations (including the ASD
Capitalized Lease Obligation in question) made or required
to be made by the Companies and their Subsidiaries during
each such fiscal quarter of the Companies ending as of the
dates set forth below, would exceed the amount set forth
below opposite each such date:




	 	 	 	 	 
	Fiscal Quarter Ending	 	Amount
	
	 	

	December 31, 2002
	 	$	650,000	 
	March 31, 2003
	 	$	400,000	 
	June 30, 2003
	 	$	250,000	 
	September 30, 2003
	 	$	200,000	 
	December 31, 2003
	 	$	200,000	 



If the Companies and their Subsidiaries do not utilize the entire amount of ASD
Capital Expenditures and ASD Capitalized Lease Obligations permitted in any
fiscal quarter set forth above, the Companies may carry forward to the
immediately following fiscal quarter only the unutilized amount of such ASD
Capital Expenditures and ASD Capitalized Lease Obligations (with the amounts
expensed or made by the Companies in such succeeding fiscal quarter applied
last to such carried forward amount).


Section 20.1 of the Loan Agreement is hereby amended by amending and restating
the following definitions set forth therein as follows:


“ASD Capital Expenditures” means Capital Expenditures made by the Companies in
connection with the operation of Simula Automotive Safety Devices, Inc. and/or
Simula Automotive Safety Devices, Ltd.; provided, however, that in calculating
such amounts, the Companies shall be permitted to deduct therefrom the net
amount of tooling reimbursements and grants related to any such Capital
Expenditures and in each case either (i) received by a
Company in cash within thirty (30) days of the incurrence of such Capital
Expenditures or (ii) approved in writing by Holder;


“ASD Capitalized Lease Obligations” means capitalized lease obligations
incurred by the Companies in connection with the operation of Simula Automotive
Safety Devices, Inc. and/or Simula Automotive Safety Devices, Ltd.; provided,
however, that in calculating such amounts, the Companies shall be permitted to
deduct therefrom the net amount of tooling reimbursements and grants related to
any such capitalized lease obligations and in each case either (i) received by
a Company in cash within thirty (30) days of the incurrence of such capitalized
lease obligations or (ii) approved in writing by Holder;


Conditions. The effectiveness of this Amendment is subject to the following
conditions precedent:

Each Company shall have delivered to Holder a manually executed original of
this Amendment;

The Companies shall have paid to Holder the amount set forth in that certain
letter agreement of even date herewith between the Companies and Holder;


The Companies shall have delivered to Holder an agreement executed by each
Company and CIT in form and substance satisfactory to Holder (the “CIT
Amendment”), pursuant to which, among other things, CIT shall have consented to
the disposition of the Properties and the Designated Equipment on substantially
the same terms and conditions as those set forth herein;


After giving effect to the amendments contemplated hereby, no Default or Event
of Default shall be in existence as of the date hereof; and


After giving effect to the CIT Amendment, no Default or Event of Default (as
such terms are defined in the CIT Financing Agreement) shall be in existence as
of the date hereof under the CIT Financing Agreement.


 






 


Representations and Warranties. To induce Holder to enter into this Amendment,
the Companies represent and warrant to Holder that (a) the execution, delivery
and performance of this Amendment has been duly authorized by all requisite
corporate action on the part of the Companies and that this Amendment has been
duly executed and delivered by the Companies, and (b) after giving effect to
the amendments contemplated hereby, no Default or Event of Default shall have
occurred and be continuing before and immediately after giving effect to this
Amendment.


DCI Capital Expenditures. Notwithstanding anything contained in this Amendment
or in the Loan Agreement to the contrary, Holder and Companies hereby agree
that no Company shall make any DCI Capital Expenditures, or incur any DCI
Capitalized Lease Obligations, during the Companies’ 2003 fiscal year in an
aggregate amount, with respect to all Companies, in excess of $225,000.


Consent under Intercreditor
Agreement. Holder hereby consents to the execution
and delivery of the CIT Amendment by CIT and the Companies, to the extent such
consent is required pursuant to the terms of the Intercreditor Agreement.


Severability. Any provision of this Amendment held by a court of competent
jurisdiction to be invalid or unenforceable shall not impair or invalidate the
remainder of this Amendment and the effect thereof shall be confined to the
provision so held to be invalid or unenforceable.


References. Any reference to the Loan Agreement contained in any document,
instrument or agreement executed in connection with the Loan Agreement shall be
deemed to be a reference to the Loan Agreement as modified by this Amendment.


Counterparts. This Amendment may be executed in one or more counterparts, each
of which shall constitute an original, but all of which taken together shall be
one and the same instrument.


Ratification. The terms and provisions set forth in this Amendment shall
modify and supersede all inconsistent terms and provisions of the Loan
Agreement and shall not be deemed to be a consent to the modification or waiver
of any other term or condition of the Loan Agreement. Except as expressly
modified and superseded by this Amendment, the terms and provisions of the Loan
Agreement are ratified and confirmed and shall continue in full force and
effect.


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers on the date
first written above.



	 	 	 	 	 
	 	 	
SIMULA, INC.,

an Arizona corporation
	 	 	 	 	 
	 	 	
By
	 	/s/
John A. Jenson

	 	 	 	 	

	 	 	
Its
	 	Chief
Financial Officer

	 	 	 	 	 
	 	 	
The Subsidiaries of Simula, Inc.:


AI CAPITAL CORP.,

an Arizona corporation
	 	 	 	 	 
	 	 	
By
	 	/s/
Mari I. Valenzuela

	 	 	 	 	

	 	 	
Its
	 	Secretary




 






 




	 	 	 	 	 
	 	CCEC CAPITAL CORP.,

an Arizona corporation
	 	 
	 	 	 	 	 
	 	By	              /s/ Mari I. Valenzuela	 	 

	 	 	

	 	 
	 	Its	              Secretary	 	
 
	 	 	 	 	 
	 	INTERNATIONAL CENTER FOR SAFETY EDUCATION,
INC., an
Arizona corporation	 	 
	 	 	 	 	 
	 	By	              /s/ Mari I. Valenzuela	 	
 
	 	 	

	 	 
	 	Its	              Secretary	 	 

	 	 	 	 	 
	 	SAI CAPITAL CORP., an Arizona corporation f/k/a Simula

Artcraft Industries, Inc.	 	 
	 	 	 	 	 
	 	By	              /s/ Mari I. Valenzuela	 	
 
	 	 	

	 	 
	 	Its	              Secretary	 	
 
	 	 	 	 	 
	 	SIMULA AUTOMOTIVE
SAFETY DEVICES, INC., an 

Arizona corporation	 	 
	 	 	 	 	 
	 	By	              /s/ Mari I. Valenzuela	 	 

	 	 	

	 	 
	 	Its	              Secretary	 	
 
	 	 	 	 	 
	 	SIMULA COMPOSITES CORPORATION,

a Delaware corporation	 	 
	 	 	 	 	 
	 	By	              /s/ Mari I. Valenzuela	 	
 
	 	 	

	 	 
	 	Its	              Secretary	 	
 
	 	 	 	 	 
	 	SIMULA POLYMER SYSTEMS, INC.,

an Arizona corporation	 	 
	 	 	 	 	 
	 	By	              /s/ Mari I. Valenzuela	 	
 
	 	 	

	 	 
	 	Its	              Secretary	 	

	 	 	 	 	 
	 	SIMULA AEROSPACE & DEFENSE GROUP, INC.,

an Arizona corporation f/k/a Simula Safety Systems, Inc.	 	 
	 	 	 	 	 
	 	By	              /s/ Mari I. Valenzuela	 	 

	 	 	

	 	 
	 	Its	              Assistant Secretary	 	 




 






 



	 	 	 	 	 
	 	SIMULA TECHNOLOGIES, INC.,

an Arizona corporation	 	 
	 	 	 	 	 
	 	By	              /s/ Mari I. Valenzuela	 	 

	 	 	

	 	 
	 	Its	              Secretary	 	
 
	 	 	 	 	 
	 	SIMULA TRANSPORTATION EQUIPMENT 

CORPORATION, an Arizona corporation	 	 
	 	 	 	 	 
	 	By	              /s/ Mari I. Valenzuela	 	 

	 	 	

	 	 
	 	Its	              Secretary	 	
 
	 	 	 	 	 
	 	SIMULA AUTOMOTIVE SAFETY DEVICES, LTD., a United

Kingdom limited company	 	 
	 	 	 	 	 
	 	By	              /s/ Mari I. Valenzuela	 	 

	 	 	

	 	 
	 	Its	              Secretary	 	
 
	 	 	 	 	 
	 	Holder:	 	 
	 	 	 	 	 
	 	ALLIED CAPITAL CORPORATION	 	 
	 	 	 	 	 
	 	By	              /s/ Peter Fidler	 	 

	 	 	

	 	 
	 	Its	              Vice President