Exhibit 10.24


 


 


 


 


 


 


EXPORT-IMPORT
BANK OF THE UNITED STATES

WORKING CAPITAL
GUARANTEE PROGRAM


 


BORROWER
AGREEMENT


 


 


 


 


 


 


 


 






     


     


    

 


 





	TABLE OF CONTENTS	 
	ARTICLE I DEFINITIONS	1
	 	1.01 Definition of Terms	1
	 	1.02 Rules of Construction	14
	 	1.03 Incorporation of Recitals	15
	ARTICLE II OBLIGATIONS OF BORROWER	15
	 	2.01 Use of Credit Accommodations	15
	 	2.02 Security Interests	15
	 	2.03 Loan Documents and Loan Authorization Agreement	16
	 	2.04 Export-Related Borrowing Base Certificates and Export Orders	16
	 	2.05 Schedules, Reports and Other Statements	16
	 	2.06 Exclusions from the Export-Related Borrowing Base	16
	 	2.07 Borrowings and Reborrowings	17
	 	2.08 Repayment Terms	17
	 	2.09 Financial Statements	17
	 	2.10 Additional Security or Payment	17
	 	2.11 Continued Security Interest	18
	 	2.12 Inspection of Collateral and Facilities	18
	 	2.13 General Intangibles	19
	 	2.14 Economic Impact Approval	19
	 	2.15 Indirect Exports	19
	 	2.16 Overseas Inventory and Accounts Receivable	20
	 	2.17 Country Limitation Schedule	21
	 	2.18 Notice of Certain Event	21
	 	2.19 Insurance	22
	 	2.20 Taxes	22
	 	2.21 Compliance with Laws	22
	 	2.22 Negative Covenants	22
	 	2.23 Cross Default	22
	 	2.24 Munitions List	22
	 	2.25 Suspension and Debarment, etc	22
	ARTICLE III RIGHTS AND REMEDIES	23



 



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	 	3.01 Indemnification	23
	 	3.02 Liens	23
	ARTICLE IV MISCELLANEOUS	24
	 	4.01 Governing Law	24
	 	4.02 Notification	24
	 	4.03 Partial Invalidity	24
	 	4.04 Waiver of Jury Trial	24
	 	4.05 Consequential Damages	24



 


 


 


 


 








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EXPORT-IMPORT
BANK OF THE UNITED STATES

WORKING CAPITAL
GUARANTEE PROGRAM

BORROWER AGREEMENT


 


THIS
BORROWER AGREEMENT (this "Agreement") is made and entered into by the entity
identified as Borrower on the signature page hereof ("Borrower") in favor of the Export- Import
Bank of the United States ("Ex-Im Bank") and the institution identified as Lender on the signature
page hereof ("Lender").


 


RECITALS


 


Borrower
has requested that Lender establish a Loan Facility in favor of Borrower for the purposes
of providing Borrower with working capital to finance the manufacture, production or purchase
and subsequent export sale of Items.


 


Lender
and Borrower expect that Ex-Im Bank will provide a guarantee to Lender regarding this Loan Facility subject to the terms and conditions
of the Master Guarantee Agreement, a Loan Authorization Agreement, and to the extent
applicable, the Delegated Authority Letter Agreement or Fast Track Lender Agreement.


 


Lender
and Ex-Im Bank have requested that Borrower execute this Agreement as a condition
precedent to Lender establishing the Loan Facility and Ex-Im Bank providing the guarantee.


 


NOW,
THEREFORE, Borrower hereby agrees as follows:


 


ARTICLE I


DEFINITIONS


 


1.01       Definition
of Terms. As used in this Agreement, including the Recitals to this Agreement and
the Loan Authorization Agreement, the following terms shall have the following meanings:


 


"Accounts
Receivable" shall mean all of Borrower's now owned or hereafter acquired (a) "accounts"
(as such term is defined in the UCC), other receivables, book debts and other forms of
obligations, whether arising out of goods sold or services rendered or from any other transaction;
(b) rights in, to and under all purchase orders or receipts for goods or services; (c) rights
to any goods represented or purported to be represented by any of the foregoing (including unpaid
sellers’ rights of rescission, replevin, reclamation and stoppage in transit and rights to returned, reclaimed or repossessed
goods); (d) moneys due or to become due to such Borrower under all purchase orders
and contracts (which includes Export Orders) for the sale of goods or the performance of services or both by Borrower (whether
or not yet earned by performance on the part of Borrower), including the proceeds of the foregoing; (e) any notes, drafts, letters
of credit, insurance proceeds or other instruments, documents and writings evidencing
or supporting the foregoing; and (f) all collateral security and guarantees of any
kind given by any other Person with respect to any of the foregoing.


 






     


     


    

 


“Accounts
Receivable Aging Report” shall mean a report detailing the Export-Related Accounts Receivable and Export-Related Overseas
Accounts Receivable for a Loan Facility, and the applicable terms for the relevant
time period; in the case of Indirect Exports, such report shall indicate the portion
of such Accounts Receivables corresponding to Indirect Exports.


 


"Advance
Rate" shall mean, with respect to a Loan Facility, the rate specified in Section 5.C. of the Loan Authorization Agreement
for each category of Primary Collateral except for Export-Related General Intangibles
and Other Collateral. Unless otherwise set forth in writing by Ex-Im Bank, in no event
shall the Advance Rate exceed (i) ninety percent (90%) for Eligible Export-Related
Accounts Receivable, (ii) seventy five percent (75%) for Eligible Export-Related Inventory,
(iii) seventy percent (70%) for Eligible Export-Related Overseas Accounts Receivable or (iv) sixty percent (60%) for Eligible Export-Related
Overseas Inventory and (v) twenty five percent (25%) for Retainage Accounts Receivable.


 


“Affiliated
Foreign Person” shall have the meaning set forth in Section 2.15.


 


"Business
Day" shall mean any day on which the Federal Reserve Bank of New York is open
for business.


 


"Buyer"
shall mean a Person that has entered into one or more Export Orders with Borrower
or who is an obligor on Export-Related Accounts Receivable or Export-Related Overseas
Accounts Receivable.


 


“Capital
Good” shall mean a capital good (e.g., manufacturing equipment, licensing agreements)
that will establish or expand foreign production capacity of an exportable good.


 


"Collateral"
shall mean all real and personal property and interest in real and personal property
in or upon which Lender has been, or shall be, granted a Lien as security for the payment
of all the Loan Facility Obligations and all products and proceeds (cash and non-cash) thereof.


 


"Commercial
Letters of Credit" shall mean those letters of credit subject to the UCP payable
in Dollars and issued or caused to be issued by Lender on behalf of Borrower under a Loan
Facility for the benefit of a supplier(s) of Borrower in connection with Borrower's purchase of
goods or services from the supplier in support of the export of the Items.


 


"Country
Limitation Schedule" shall mean the schedule published from time to time by Ex-Im Bank setting forth on a country by country
basis whether and under what conditions Ex-Im Bank will provide coverage for the financing
of export transactions to countries listed therein.


 


“Credit
Accommodation Amount” shall mean, the sum of (a) the aggregate outstanding amount
of Disbursements and (b) the aggregate outstanding Letter of Credit Obligations, which sum
may not exceed the Maximum Amount.


 


"Credit
Accommodations" shall mean, collectively, Disbursements and Letter of Credit Obligations.


 



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"Debarment
Regulations" shall mean, collectively, (a) the Governmentwide Debarment and Suspension
(Nonprocurement) regulations (Common Rule), 53 Fed. Reg. 19204 (May 26, 1988), (b) Subpart 9.4 (Debarment, Suspension, and Ineligibility)
of the Federal Acquisition Regulations, 48 C.F.R. 9.400-9.409 and (c) the revised Governmentwide
Debarment and Suspension (Nonprocurement) regulations (Common Rule), 60 Fed. Reg. 33037
(June 26, 1995).


 


"Delegated
Authority Letter Agreement" shall mean the Delegated Authority Letter Agreement,
if any, between Ex-Im Bank and Lender.


 


"Disbursement"
shall mean, collectively, (a) an advance of a working capital loan from Lender to Borrower
under the Loan Facility, and (b) an advance to fund a drawing under a Letter of Credit issued or caused to be issued by Lender
for the account of Borrower under the Loan Facility.


 


"Dollars"
or "$" shall mean the lawful currency of the United States.


 


“Economic
Impact Approval” shall mean a written approval issued by Ex-Im Bank stating
the conditions under which a Capital Good may be included as an Item in a Loan Facility consistent with Ex-Im Bank’s economic
impact procedures (or other mechanism for making this determination that Ex-Im Bank
notifies Lender of in writing).


 


“Economic
Impact Certification” shall have the meaning set forth in Section 2.14(b).


 


"Effective
Date" shall mean the date on which (a) all of the Loan Documents have been executed
by Lender, Borrower and, if applicable, Ex-Im Bank and (b) all of the conditions to the making
of the initial Credit Accommodations under the Loan Documents or any amendments thereto have been satisfied.


 


"Eligible
Export-Related Accounts Receivable" shall mean Export-Related Accounts Receivable which are acceptable to Lender and which
are deemed to be eligible pursuant to the Loan Documents, but in no event shall Eligible
Export-Related Accounts Receivable include any Account Receivable:


 


(a)                              
that does not arise from the sale of Items in the ordinary course of Borrower's business;


 


(b)                             
that is not subject to a valid, perfected first priority Lien in favor of Lender;


 


(c)                              
as to which any covenant, representation or warranty contained in the Loan
Documents with respect to such Account Receivable has been breached;


 


(d)                             
that is not owned by Borrower or is subject to any right, claim or interest
of another Person other than the Lien in favor of Lender;


 


(e)                              
with respect to which an invoice has not been sent;


 


(f)                                
that arises from the sale of defense articles or defense services;


 






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(g)                
that arises from the sale of Items to be used in the construction, alteration, operation
or maintenance of nuclear power, enrichment, reprocessing, research or heavy water production
facilities unless with Ex-Im Bank’s prior written consent;


 


(h)                
that is due and payable from a Buyer located in a country with which Ex-Im
Bank is prohibited from doing business as designated in the Country Limitation Schedule;


 


(i)                  
that does not comply with the requirements of the Country Limitation Schedule;


 


(j)                  
that is due and payable more than one hundred eighty (180) days from the date
of the invoice;


 


(k)                
that is not paid within sixty (60) calendar days from its original due date,
unless it is insured through Ex-Im Bank export credit insurance for comprehensive commercial
and political risk, or through Ex-Im Bank approved private insurers for comparable coverage, in which
case it is not paid within ninety (90) calendar days from its due date;


 


(l)                  
of a Buyer for whom fifty percent (50%) or more of the Accounts Receivable
of such Buyer do not satisfy the requirements of subclauses (j) and (k) above;


 


(m)                    that arises from a sale of goods to or performance of services for an employee of Borrower,
a stockholder of Borrower, a subsidiary of Borrower, a Person with a controlling interest
in Borrower or a Person which shares common controlling ownership with Borrower;


 


(n)                
that is backed by a letter of credit unless the Items covered by the subject
letter of credit have been shipped;


 


(o)                
that Lender or Ex-Im Bank, in its reasonable judgment, deems uncollectible
for any reason;


 


(p)                
that is due and payable in a currency other than Dollars, except as may be
approved in writing by Ex-Im Bank;


 


(q)                
that is due and payable from a military Buyer, except as may be approved in
writing by Ex-Im Bank;


 


(r)                  
that does not comply with the terms of sale set forth in Section 7 of the Loan
Authorization Agreement;





 


(s)                  that
is due and payable from a Buyer who (i) applies for, suffers, or consents to the appointment of, or the taking of possession
by, a receiver, custodian, trustee or liquidator of itself or of all or a
substantial part of its property or calls a meeting of its creditors, (ii) admits in writing
its inability, or is generally unable, to pay its debts as they become due or ceases operations
of its present business, (iii) makes a general assignment for the benefit of creditors, (iv)
commences a voluntary case under any state or federal bankruptcy laws (as now or hereafter in effect), (v) is
adjudicated as bankrupt or insolvent, (vi) files a petition seeking to take advantage
of any other law providing for the relief of debtors, (vii) acquiesces to, or fails to have dismissed,
any petition which is filed against it in any involuntary case under such bankruptcy laws,
or (viii) takes any action for the purpose of effecting any of the foregoing;


 






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(t)                                 
that arises from a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment
or any other repurchase or return basis or is evidenced by chattel paper;


 


(u)                             
for which the Items giving rise to such Accounts Receivable have not been shipped
to the Buyer or when the Items are services, such services have not been performed or when
the Export Order specifies a timing for invoicing the Items other than shipment or performance
and the Items have not been invoiced in accordance with such terms of the Export Order,
or the Accounts Receivable otherwise do not represent a final sale;


 


(v)                             
that is subject to any offset, deduction, defense, dispute, or counterclaim
or the Buyer is also a creditor or supplier of Borrower or the Account Receivable
is contingent in any respect or for any reason;


 


(w)            
for which Borrower has made any agreement with the Buyer for any deduction therefrom,
except for discounts or allowances made in the ordinary course of business for prompt payment,
all of which discounts or allowances are reflected in the calculation of the face value of each
respective invoice related thereto;


 


(x)                             
for which any of the Items giving rise to such Account Receivable have been
returned, rejected or repossessed;


 


(y)                             
that is included as an eligible receivable under any other credit facility to
which Borrower is a party;


 


(z)                              
any of the Items giving rise to such Accounts Receivable are Capital Goods, unless
the transaction is in accordance with Section 2.14;


 


(aa)
that is due and payable from a Buyer that is, or is located in, the United States; provided however, that this subsection (aa)
shall not preclude an Export-Related Accounts Receivable arising from the sale of Items to foreign contractors or subcontractors
providing services to a United States Embassy or the United States Military located
overseas from being deemed an Eligible Export-Related Accounts Receivable; or


 


(bb)
that arises from the sale of Items that do not meet the U.S. Content requirements in
accordance with Section 2.01(b)(ii).


 


"Eligible
Export-Related Inventory" shall mean Export-Related Inventory which is acceptable
to Lender and which is deemed to be eligible pursuant to the Loan Documents, but in no
event shall Eligible Export-Related Inventory include any Inventory:


 


(a)              
that is not subject to a valid, perfected first priority Lien in favor of Lender;


 


(b)             
that is located at an address that has not been disclosed to Lender in writing;


 






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(c)               
that is placed by Borrower on consignment or held by Borrower on consignment from
another Person;


 


(d)              
that is in the possession of a processor or bailee, or located on premises
leased or subleased to Borrower, or on premises subject to a mortgage in favor of
a Person other than Lender, unless such processor or bailee or mortgagee or the lessor
or sublessor of such premises, as the case may be, has executed and delivered all
documentation which Lender shall require to evidence the subordination or other limitation
or extinguishment of such Person's rights with respect to such Inventory and Lender's
right to gain access thereto;


 


(e)               
that is produced in violation of the Fair Labor Standards Act or subject to
the "hot goods" provisions contained in 29 U.S.C. §215 or any successor
statute or section;


 


(f)                
as to which any covenant, representation or warranty with respect to such Inventory
contained in the Loan Documents has been breached;


 


(g)              
that is not located in the United States unless expressly permitted by Lender, on terms
acceptable to Lender;


 


(h)              
that is an Item or is to be incorporated into Items that do not meet U.S. Content
requirements in accordance with Section 2.01 (b)(ii);


 


(i)                
that is demonstration Inventory;


 


(j)                
that consists of proprietary software (i.e. software designed solely for Borrower's
internal use and not intended for resale);


 


(k)              
that is damaged, obsolete, returned, defective, recalled or unfit for further
processing;


 


(l)                
that has been previously exported from the United States;


 


(m)            
that constitutes, or will be incorporated into Items that constitute, defense
articles or defense services;


 


(n)              
that is an Item or will be incorporated into Items that will be used in the
construction, alteration, operation or maintenance of nuclear power, enrichment, reprocessing,
research or heavy water production facilities unless with Ex-Im Bank’s prior
written consent;


 


(o)              
that is an Item or is to be incorporated into Items destined for shipment to
a country as to which Ex-Im Bank is prohibited from doing business as designated in
the Country Limitation Schedule;


 


(p)              
that is an Item or is to be incorporated into Items destined for shipment to
a Buyer located in a country in which Ex-Im Bank coverage is not available for commercial
reasons as designated in the Country Limitation Schedule, unless and only to the extent
that such Items are to be sold to such country on terms of a letter of credit confirmed
by a bank acceptable to Ex-Im Bank;


 






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(q)                             
that constitutes, or is to be incorporated into, Items whose sale would result in an Accounts
Receivable which would not be an Eligible Export-Related Accounts Receivable;


 


(r)                                
that is included as eligible inventory under any other credit facility to which Borrower
is a party; or


 


(s)                               
that is, or is to be incorporated into, an Item that is a Capital Good, unless
the transaction is in accordance with Section 2.14.


 


"Eligible
Export-Related Overseas Accounts Receivable" shall mean Export-Related Overseas
Accounts Receivable which are acceptable to Lender and which are deemed to be eligible
pursuant to the Loan Documents but in no event shall include the Accounts Receivable (a) through (bb) excluded from the definition
of Eligible Export-Related Accounts Receivable.


 


“Eligible
Export-Related Overseas Inventory" shall mean Export-Related Overseas Inventory
which is acceptable to Lender and which is deemed to be eligible pursuant to the Loan Documents,
but in no event shall include the Inventory (a) through (r) excluded from the definition
of Eligible Export-Related Inventory.


 


"Eligible Person"
shall mean a sole proprietorship, partnership, limited liability partnership, corporation or limited liability company which (a)
is domiciled, organized or formed, as the case may be, in the United States, whether or not such entity is owned by a foreign
national or foreign entity; (b) is in good standing in the state of its formation or otherwise authorized
to conduct business in the United States; (c) is not currently suspended or debarred from
doing business with the United States government or any instrumentality, division, agency or
department thereof; (d) exports or plans to export Items; (e) operates and has operated as a going concern for at least one (1)
year; (f) has a positive tangible net worth determined in accordance with GAAP; and
(g) has revenue generating operations relating to its core business activities for
at least one year. An Affiliated Foreign Person that meets all of the requirements of the foregoing definition of Eligible Person
other than subclause (a) thereof shall be deemed to be an Eligible Person


 


"ERISA"
shall mean the Employee Retirement Income Security Act of 1974 and the rules and regulations
promulgated thereunder


 





"Export
Order" shall mean a documented purchase order or contract evidencing a Buyer’s agreement
to purchase the Items from Borrower for export from the United States, which documentation shall include written information that
is necessary to confirm such purchase order or contract, including identification of the Items, the name of the Buyer, the
country of destination, contact information for the Buyer and the total amount of the purchase
order or contract; in the case of Indirect Exports, such documentation shall further
include a copy of the written purchase order or contract from a foreign purchaser or
other documentation clearly evidencing a foreign purchaser’s agreement to purchase the Items.


 


"Export-Related
Accounts Receivable" shall mean those Accounts Receivable arising from the sale
of Items which are due and payable to Borrower in the United States.


 






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"Export-Related
Accounts Receivable Value" shall mean, at the date of determination thereof, the
aggregate face amount of Eligible Export-Related Accounts Receivable less taxes, discounts, credits, allowances and Retainages,
except to the extent otherwise permitted by Ex-Im Bank in writing.


 


"Export-Related
Borrowing Base" shall mean, at the date of determination thereof, the sum of
(a) (if Lender elects to include) the Export-Related Inventory Value or Export-Related Historical
Inventory Value multiplied by the Advance Rate applicable to Eligible Export-Related Inventory
set forth in Section 5.B.(1.) of the Loan Authorization Agreement, plus (b) the Export- Related
Accounts Receivable Value multiplied by the Advance Rate applicable to Eligible Export-Related
Accounts Receivable set forth in Section 5.B.(2.) of the Loan Authorization Agreement, plus (c) if permitted by Ex-Im Bank in writing,
the Retainage Value multiplied by the Advance Rate applicable to Retainages set forth
in Section 5.B.(3.) of the Loan Authorization Agreement, plus (d) the Other Assets
set forth in Section 5.B.(4.) of the Loan Authorization Agreement multiplied by the
Advance Rate agreed to in writing by Ex-Im Bank, plus (e) if permitted by Ex-Im Bank
in writing, the Export-Related Overseas Accounts Receivable Value multiplied by the
Advance Rate applicable to Eligible Export-Related Overseas Accounts Receivable set forth in Section 5.B.(5.) of the Loan
Authorization Agreement, plus (f) if permitted by Ex-Im Bank in writing, the Export-Related
Overseas Inventory Value multiplied by the Advance Rate applicable to Eligible Export-Related
Overseas Inventory set forth in Section 5.B.(6.) of the Loan Authorization Agreement,
less (g) the amounts required to be reserved pursuant to Sections 4.12 and 4.13 of
this Agreement for each outstanding Letter of Credit, less (h) such reserves and in
such amounts deemed necessary and proper by Lender from time to time.


 


"Export-Related
Borrowing Base Certificate" shall mean a certificate in the form provided or approved by Lender, executed by Borrower and
delivered to Lender pursuant to the Loan Documents detailing the Export-Related Borrowing
Base supporting the Credit Accommodations which reflects, to the extent included in
the Export-Related Borrowing Base, Export-Related Accounts Receivable, Eligible Export-Related
Accounts Receivable, Export-Related Inventory, Eligible Export-Related Inventory, Export-Related
Overseas Accounts Receivable, Eligible Export-Related Accounts Receivable, Export-Related
Overseas Inventory and Eligible Export- Related Overseas Inventory balances that have
been reconciled with Borrower's general ledger, Accounts Receivable Aging Report and
Inventory schedule.


 


"Export-Related
General Intangibles" shall mean the Pro Rata Percentage of General Intangibles
determined as of the earlier of: (i) the date such General Intangibles are liquidated and
(ii) the date Borrower fails to pay when due any outstanding amount of principal or accrued interest
payable under the Loan Documents that becomes the basis for a Payment Default on which
a Claim is filed.


 


“Export-Related
Historical Inventory Value” shall mean with respect to a Borrower, the relevant
Export-Related Sales Ratio multiplied by the lowest of (i) the cost of such Borrower’s Inventory
as determined in accordance with GAAP, or (ii) the market value of such Borrower’s Inventory
as determined in accordance with GAAP or (iii) the appraised or orderly liquidation value
of such Borrower’s Inventory, if Lender has loans and financial accommodations to such Borrower
for which it conducts (or contracts for the performance of) such an appraised or orderly
liquidation value.


 






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"Export-Related
Inventory" shall mean the Inventory of Borrower located in the United States that
has been purchased, manufactured or otherwise acquired by Borrower for sale or resale
as Items, or to be incorporated into Items to be sold or resold pursuant to Export Orders.


 


"Export-Related
Inventory Value" shall mean, at the date of determination thereof, the lowest
of (i) the cost of Eligible Exported-Related Inventory as determined in accordance with GAAP, or (ii) the market value of
Eligible Export-Related Inventory as determined in accordance with GAAP or (iii) the lower
of the appraised market value or orderly liquidation value of the Eligible Export-Related Inventory, if Lender has other loans
and financial accommodations to a Borrower for which it conducts (or contracts for
the performance of) such an appraised or orderly liquidation value.


 


"Export-Related
Overseas Accounts Receivable" shall mean those Accounts Receivable arising from
the sale of Items which are due and payable outside of the United States either to a Borrower
or an Affiliated Foreign Person.


 


"Export-Related
Overseas Accounts Receivable Value" shall mean, with respect to a Loan Facility,
at the date of determination thereof, the aggregate face amount of Eligible Export- Related
Overseas Accounts Receivable less taxes, discounts, credits, allowances and Retainages, except
to the extent otherwise permitted by Ex-Im Bank in writing.


 


"Export-Related
Overseas Inventory" shall mean the Inventory of Borrower located outside of the
United States that has been purchased, manufactured or otherwise acquired by such
Borrower for sale or resale as Items, or to be incorporated into Items to be sold or resold pursuant
to Export Orders.


 


“Export-Related
Overseas Inventory Value” shall mean, at the date of determination thereof, the
lowest of (i) the cost of Eligible Export-Related Overseas Inventory as determined in accordance
with GAAP, (ii) the market value of Eligible Export-Related Overseas Inventory as determined
in accordance with GAAP or (iii) the appraised or orderly liquidation value of the Eligible
Export-Related Overseas Inventory, if Lender has other loans and financial accommodations
to Borrower or an Affiliated Foreign Person for which it conducts (or contracts for the performance of) such a appraised or orderly
liquidation.


 


“Export-Related
Sales Ratio” shall mean with respect to a Borrower, the percentage of such Borrower’s
total sales revenue derived from the sale of Eligible Export-Related Inventory over
a rolling twelve-month period ending no more than ninety (90) days prior to the date of the relevant
Export-Related Borrowing Base Certificate


 


"Extension"
shall mean, with respect to a Loan Facility, an amendment to the Loan Authorization
Agreement extending the Final Disbursement Date on the same terms and conditions as
the Loan Facility for an aggregate period not to exceed one hundred and twenty (120)
days beyond the original Final Disbursement Date, either as agreed to in writing by Ex-Im Bank
or, in the case of Delegated Authority, as notified by Lender to Ex-Im Bank pursuant to its authority
under the Delegated Authority Letter Agreement.


 






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“Fast
Track Lender Agreement” shall mean the Fast Track Lender Agreement, if any, between
Ex-Im Bank and Lender.


 


"Final
Disbursement Date" shall mean the last date on which Lender may make a Disbursement set forth in Section 10 of the
Loan Authorization Agreement (including as amended by an Extension) or, if such date is not
a Business Day, the next succeeding Business Day; provided, however, to the extent that Lender has not received cash collateral
in the amount of the Letter of Credit Obligations or an equivalent full indemnity from Borrower or Guarantor, as
applicable, with respect to Letter of Credit Obligations outstanding on the Final Disbursement Date,
the Final Disbursement Date with respect to an advance to fund a drawing under such Letter
of Credit shall be no later than thirty (30) days after any such drawing which may be no later
than the expiry date of the Letter of Credit related thereto.


 


"GAAP"
shall mean the generally accepted accounting principles issued in the United States.


 


"General
Intangibles" shall mean all intellectual property and other "general intangibles" (as such term is defined in the
UCC).


 


"Guarantor"
shall mean any Person which is identified in Section 3 of the Loan Authorization Agreement
who shall guarantee (jointly and severally if more than one) the payment and performance
of all or a portion of the Loan Facility Obligations.


 


"Guarantee
Agreement" shall mean a valid and enforceable agreement of guarantee executed
by each Guarantor in favor of Lender.


 


“Indirect
Exports” shall mean finished goods or services that are sold by a Borrower to a Buyer
located in the United States, are intended for export from the United States, and are identified
in Section 4.A.(2.) of the Loan Authorization Agreement.


 


"Inventory"
shall mean all "inventory" (as such term is defined in the UCC), now or hereafter
owned or acquired by Borrower, wherever located, including all inventory, merchandise,
goods and other personal property which are held by or on behalf of Borrower for sale or lease or are furnished or are to
be furnished under a contract of service or which constitute raw materials, work in process
or materials used or consumed or to be used or consumed in Borrower's business or in the processing, production, packaging, promotion,
delivery or shipping of the same, including other supplies.


 


“ISP”
shall mean the International Standby Practices-ISP98, International Chamber of Commerce
Publication No. 590 and any amendments and revisions thereof.


 


“Issuing
Bank” shall mean the bank that issues a Letter of Credit, which bank is Lender itself
or a bank that Lender has caused to issue a Letter of Credit by way of a guarantee or reimbursement obligation.


 


"Items"
shall mean the finished goods or services which are intended for export from the United
States, either directly or as an Indirect Export, meet the U.S. Content requirements in accordance
with Section 2.01(b)(ii) of this Agreement and are specified in Section 4.A. of the Loan
Authorization Agreement.


 






     10


     


    

 


"Letter of Credit" shall mean a Commercial Letter of Credit or a Standby Letter of Credit.


 


"Letter
of Credit Obligations" shall mean all undrawn amounts of outstanding obligations incurred
by Lender, whether direct or indirect, contingent or otherwise, due or not due, in connection
with the issuance or guarantee by Lender or Issuing Bank of Letters of Credit.


 


"Lien"
shall mean any mortgage, security deed or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, lien, charge, claim, security interest, security title, easement or encumbrance,
or preference, priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including any lease or title retention agreement, any financing lease
having substantially the same economic effect as any of the foregoing, and the filing of, or agreement
to give, any financing statement perfecting a security interest under the UCC or comparable law of any jurisdiction) by which property
is encumbered or otherwise charged.


 


"Loan
Agreement" shall mean a valid and enforceable agreement between Lender and a Borrower setting forth, with respect to each
Loan Facility, the terms and conditions of such Loan Facility.


 


"Loan
Authorization Agreement" shall mean, as applicable, the duly executed Loan Authorization
Agreement, Fast Track Loan Authorization Agreement, or the Loan Authorization Notice,
setting forth certain terms and conditions of each Loan Facility, a copy of which is attached
hereto as Annex A.


 


"Loan
Authorization Notice" shall mean the Loan Authorization Notice executed by Lender
and delivered to Ex-Im Bank in accordance with the Delegated Authority Letter Agreement
setting forth the terms and conditions of each Loan Facility.


 


"Loan
Documents" shall mean the Loan Authorization Agreement, the Loan Agreement, this
Agreement, each promissory note (if applicable), each Guarantee Agreement, and all other instruments,
agreements and documents now or hereafter executed by the applicable Borrower, any
Guarantor, Lender or Ex-Im Bank evidencing, securing, guaranteeing or otherwise relating to
the Loan Facility or any Credit Accommodations made thereunder.


 


"Loan
Facility" shall mean the Revolving Loan Facility, the Transaction Specific Loan Facility or the Transaction Specific Revolving
Loan Facility established by Lender in favor of Borrower under the Loan Documents.


 


"Loan
Facility Obligations" shall mean all loans, advances, debts, expenses, fees, liabilities, and obligations, including any accrued
interest thereon, for the performance of covenants, tasks or duties or for payment
of monetary amounts (whether or not such performance is then required or contingent,
or amounts are liquidated or determinable) owing by Borrower to Lender, of any kind
or nature, present or future, arising in connection with the Loan Facility.


 






     11


     


    

 


"Loan
Facility Term" shall mean, with respect to a Loan Facility, the number of months or
portion thereof from the Effective Date to the Final Disbursement Date as set forth in the Loan Authorization
Agreement as amended.


 


"Master
Guarantee Agreement" shall mean the Master Guarantee Agreement between Ex-Im
Bank and Lender, as amended, modified, supplemented and restated from time to time.


 


"Material
Adverse Effect" shall mean a material adverse effect on (a) the business, assets, operations,
prospects or financial or other condition of Borrower or any Guarantor, (b) any Borrower's
ability to pay or perform the Loan Facility Obligations in accordance with the terms thereof,
(c) the Collateral or Lender's Liens on the Collateral or the priority of such Lien, or (d) Lender's
rights and remedies under the Loan Documents.


 


"Maximum
Amount" shall mean the maximum Credit Accommodation Amount that may be outstanding
at any time under each Loan Facility, as specified in Section 5.A. of the Loan Authorization
Agreement.


 


“Other
Assets” shall mean, with respect to a Loan Facility, such other assets of a Borrower to be included in Primary Collateral,
which may include cash and marketable securities, or such other assets as Ex-Im Bank
agrees to in writing, and disclosed as Primary Collateral in Section 6.A. of the Loan
Authorization Agreement. The applicable Advance Rate (to be multiplied by the Other
Asset Value) shall be as agreed to by Ex-Im Bank in writing case by case by case and
set forth in Section 5.B.(4) of the Loan Authorization Agreement.


 


“Other Asset
Value” shall mean, with respect to a Loan Facility, at the date of determination
thereof, the value of the Other Assets as determined in accordance with GAAP.


 


“Other
Collateral” shall mean any additional collateral that Lender customarily would require
as security for loan facilities on its own account and risk where the permitted borrowing level
is based principally on a borrowing base derived from a borrower’s inventory and accounts receivable, but where such
additional collateral does not enter into the borrowing base calculation.


 


"Permitted
Liens" shall mean (a) Liens for taxes, assessments or other governmental charges
or levies not delinquent, or, being contested in good faith and by appropriate proceedings and with respect to which proper
reserves have been taken by Borrower; provided, that, the Lien shall have
no effect on the priority of the Liens in favor of Lender or the value of the assets in which
Lender has such a Lien and a stay of enforcement of any such Lien shall be in effect; (b) deposits or pledges securing
obligations under worker's compensation, unemployment insurance, social security
or public liability laws or similar legislation; (c) deposits or pledges securing bids, tenders,
contracts (other than contracts for the payment of money), leases, statutory obligations, surety and appeal bonds and other
obligations of like nature arising in the ordinary course of Borrower's
business; (d) judgment Liens that have been stayed or bonded; (e) mechanics', workers',
materialmen's or other like Liens arising in the ordinary course of Borrower's business with respect to obligations
which are not due; (f) Liens placed upon fixed assets hereafter acquired to secure a
portion of the purchase price thereof, provided, that, any such Lien shall not encumber
any other property of Borrower; (g) security interests being terminated concurrently with
the execution of the Loan Documents; and (h) Liens disclosed in Section 6.D. of the Loan Authorization Agreement, provided
that, except as otherwise permitted by Ex-Im Bank in writing, such Liens in Section 6.D. shall be subordinate to the
Liens in favor of Lender on Primary Collateral.


 






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"Person"
shall mean any individual, sole proprietorship, partnership, limited liability partnership, joint venture, trust, unincorporated
organization, association, corporation, limited liability company, institution, public
benefit corporation, entity or government (whether national, federal, provincial, state,
county, city, municipal or otherwise, including any instrumentality, division, agency, body or department thereof), and shall include
such Person's successors and assigns.


 


"Pro
Rata Percentage" shall mean, with respect to a Loan Facility, as of the date of determination
thereof, the principal balance of the Credit Accommodations outstanding as a percentage
of the combined principal balance of all loans from Lender to such Borrower including
the then outstanding principal balance of the Credit Accommodations plus unfunded amounts
under outstanding Letters of Credit.


 


"Principals"
shall mean any officer, director, owner, partner, key employee, or other Person with
primary management or supervisory responsibilities with respect to Borrower or any other
Person (whether or not an employee) who has critical influence on or substantive control over
the transactions covered by this Agreement.


 


"Retainage"
shall mean that portion of the purchase price of an Export Order that a Buyer is not obligated to pay until the end of a specified
period of time following the satisfactory performance under such Export Order.


 


"Retainage
Accounts Receivable" shall mean those portions of Eligible Export-Related Accounts
Receivable or Eligible Export-Related Overseas Accounts Receivable arising out of a Retainage.


 


“Retainage
Value" shall mean, at the date of determination thereof, the aggregate face amount
of Retainage Accounts Receivable as permitted by Ex-Im Bank in writing, less taxes, discounts,
credits and allowances, except to the extent otherwise permitted by Ex-Im Bank in writing.


 


"Revolving
Loan Facility" shall mean the credit facility or portion thereof established by Lender
in favor of Borrower for the purpose of providing working capital in the form of loans and/or
Letters of Credit to finance the manufacture, production or purchase and subsequent export
sale of Items pursuant to Loan Documents under which Credit Accommodations may be made
and repaid on a continuous basis based solely on credit availability on the Export-Related Borrowing
Base during the term of such credit facility


 


"Special
Conditions" shall mean those conditions, if any, set forth in Section 13 of the Loan
Authorization Agreement.


 


"Specific
Export Orders" shall mean those Export Orders specified in Section 5.D. of the Loan
Authorization Agreement as applicable for a Transaction Specific Revolving Loan Facility or
a Transaction Specific Loan Facility.


 






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“Standby
Letters of Credit” shall mean those letters of credit subject to the ISP or UCP issued
or caused to be issued by Lender for Borrower's account that can be drawn upon by a Buyer only if Borrower fails to perform all
of its obligations with respect to an Export Order.


 


"Transaction
Specific Loan Facility" shall mean a credit facility or a portion thereof established
by Lender in favor of Borrower for the purpose of providing working capital in the form
of loans and/or Letters of Credit to finance the manufacture, production or purchase and subsequent
export sale of Items pursuant to Loan Documents under which Credit Accommodations are
made based solely on credit availability on the Export-Related Borrowing Base relating
to Specific Export Orders and once such Credit Accommodations are repaid they may not
be reborrowed.


 


"Transaction
Specific Revolving Loan Facility" shall mean a Revolving Credit Facility established
to provide financing of Specific Export Orders.


 


"UCC"
shall mean the Uniform Commercial Code, as the same may be in effect from time to time
in the relevant United States jurisdiction.


 


"UCP"
shall mean the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 and any amendments and revisions
thereof.


 


"U.S."
or "United States" shall mean the United States of America including any division or agency thereof (including United
States embassies or United States military bases located overseas), and any United
States Territory (including without limitation, Puerto Rico, Guam or the United States
Virgin Islands).


 


"U.S.
Content" shall mean, with respect to any Item, all the costs, including labor, materials,
services and overhead, but not markup or profit margin, which are of U.S. origin or manufacture,
and which are incorporated into an Item in the United States.


 


"Warranty"
shall mean Borrower’s guarantee to Buyer that the Items will function as intended
during the warranty period set forth in the applicable Export Order.


 


"Warranty
Letter of Credit" shall mean a Standby Letter of Credit which is issued or caused
to be issued by Lender to support the obligations of Borrower with respect to a Warranty or a Standby Letter of Credit which by
its terms becomes a Warranty Letter of Credit.


 


1.02       Rules
of Construction. For purposes of this Agreement, the following additional rules
of construction shall apply, unless specifically indicated to the contrary: (a) wherever from the
context it appears appropriate, each term stated in either the singular or plural shall include the
singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include
the masculine, the feminine and the neuter; (b) the term "or" is not exclusive; (c) the term "including"
(or any form thereof) shall not be limiting or exclusive; (d) all references to statutes and
related regulations shall include any amendments of same and any successor statutes and regulations;
(e) the words "this Agreement", "herein", "hereof", "hereunder" or other words of
similar import refer to this Agreement as a whole including the schedules, exhibits, and annexes hereto
as the same may be amended, modified or supplemented; (f) all references in this Agreement
to sections, schedules, exhibits, and annexes shall refer to the corresponding sections, schedules,
exhibits, and annexes of or to this Agreement; and (g) all references to any instruments
or agreements, including references to any of the Loan Documents, the Delegated Authority
Letter Agreement, or the Fast Track Lender Agreement shall include any and all modifications,
amendments and supplements thereto and any and all extensions or renewals thereof
to the extent permitted under this Agreement.


 






     14


     


    

 


1.03
Incorporation of Recitals. The Recitals to this Agreement are incorporated into and
shall constitute a part of this Agreement.


 


ARTICLE II


OBLIGATIONS
OF BORROWER


 


Until payment in full
of all Loan Facility Obligations and termination of the Loan Documents, Borrower agrees as
follows:


 


2.01
Use of Credit Accommodations. (a) Borrower shall use Credit Accommodations only
for the purpose of enabling Borrower to finance the cost of manufacturing, producing, purchasing
or selling the Items. Borrower may not use any of the Credit Accommodations for the
purpose of: (i) servicing or repaying any of Borrower's pre-existing or future indebtedness unrelated
to the Loan Facility unless approved by Ex-Im Bank in writing; (ii) acquiring fixed assets or capital assets for use in Borrower's
business; (iii) acquiring, equipping or renting commercial space outside of the United
States; (iv) paying the salaries of non U.S. citizens or non-U.S. permanent residents
who are located in offices outside of the United States; or (v) in connection with
a Retainage or Warranty unless approved by Ex-Im Bank in writing.


 


(b)       In
addition, no Credit Accommodation may be used to finance the


manufacture,
purchase or sale of any of the following:


 


(i)                            
Items to be sold to a Buyer located in a country as to which Ex-Im Bank is prohibited
from doing business as designated in the Country Limitation Schedule;


 


(ii)                            that part of the cost of the Items which
is not U.S. Content unless such part is not greater than fifty percent (50%) of
the cost of the Items and is incorporated into the Items in the United
States;


 


(iii)                 
         defense articles or
defense services;


 


(iv)                         
Capital Goods unless in accordance with Section 2.14 of this Agreement; or


 


(v)                          
without Ex-Im Bank's prior written consent, any Items to be used in the construction,
alteration, operation or maintenance of nuclear power, enrichment, reprocessing, research or heavy water production facilities.


 


2.02
Security Interests. Borrower agrees to cooperate with Lender in any steps Lender shall
take to file and maintain valid, enforceable and perfected security interests in the Collateral.


 






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2.03
Loan Documents and Loan Authorization Agreement. (a) This Agreement and each of the other Loan Documents applicable to Borrower
have been duly executed and delivered on behalf of Borrower, and are and will continue
to be legal and valid obligations of Borrower, enforceable against it in accordance
with its terms.


 


(b)              
Borrower shall comply with all of the terms and conditions of this Agreement, the Loan
Authorization Agreement and each of the other Loan Documents to which it is a party.


 


(c)               
Borrower hereby represents and warrants to Lender that Borrower is an Eligible
Person.


 


2.04
Export-Related Borrowing Base Certificates and Export Orders. (a) In order to receive Credit Accommodations under
the Loan Facility, Borrower shall have delivered to Lender an Export-Related Borrowing Base
Certificate as frequently as required by Lender but at least within the past month,
together with a copy of the Export Order(s) or, for Revolving Loan Facilities, if permitted by Lender, a written summary
of the Export Orders (when Eligible Export-Related Inventory and Eligible Overseas Export-Related
Inventory are entering the Export-Related Borrowing Base) against which Borrower is
requesting Credit Accommodations. In addition, so long as there are any Credit Accommodations outstanding under the Loan
Facility, Borrower shall deliver to Lender an Export-Related Borrowing Base Certificate at
least once each month. Lender shall determine if daily electronic reporting reconciled monthly may substitute
for monthly Export-Related Borrowing Base Certificates. If the Lender requires an Export-Related
Borrowing Base Certificate more frequently, Borrower shall deliver such Export- Related
Borrowing Base Certificate as required by Lender.


 


(b)       If
Lender permits summaries of Export Orders, Borrower shall also deliver


promptly
to Lender copies of any Export Orders requested by Lender.


 


2.05
Schedules, Reports and Other Statements. With the delivery of each Export- Related
Borrowing Base Certificate required in Section 2.04 above, Borrower shall submit to Lender
in writing (a) an Inventory schedule for the preceding month, as applicable, and (b) an Accounts
Receivable Aging Report for the preceding month. Borrower shall also furnish to Lender
promptly upon request such information, reports, contracts, invoices and other data concerning
the Collateral as Lender may from time to time specify.


 


2.06
Exclusions from the Export-Related Borrowing Base. In determining the Export- Related Borrowing Base, Borrower shall exclude
therefrom Inventory which are not Eligible Export-Related Inventory or Eligible Export-Related
Overseas Inventory and Accounts Receivable which are not Eligible Export-Related Accounts
Receivable or Eligible Export- Related Overseas Accounts Receivable. Borrower shall promptly, but in any event within five (5)
Business Days, notify Lender (a) if any then existing Export-Related Inventory or Export- Related
Overseas Inventory no longer constitutes Eligible Export-Related Inventory or Eligible Export-Related
Overseas Inventory, as applicable or (b) of any event or circumstance which to Borrower’s
knowledge would cause Lender to consider any then existing Export-Related Accounts
Receivable or Export-Related Overseas Accounts Receivable as no longer constituting an
Eligible Export-Related Accounts Receivable or Eligible Export-Related Overseas Accounts Receivable,
as applicable.


 



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2.07 Borrowings
and Reborrowings. (a) If the Loan Facility is a Revolving Loan Facility or Transaction
Specific Revolving Loan Facility, provided that Borrower is not in default
under any of the Loan Documents, Borrower may borrow, repay and reborrow amounts under
such Loan Facility up to the credit available on the current Export-Related Borrowing Base
Certificate subject to the terms of this Agreement and each of the other Loan Documents until
the close of business on the Final Disbursement Date.


 


(b)       If
the Loan Facility is a Transaction Specific Loan Facility, provided that


Borrower
is not in default under any of the Loan Documents, Borrower may borrow (but not reborrow)
amounts under the Loan Facility up to the credit available on the current Export- Related
Borrowing Base Certificate subject to the terms of this Agreement and each of the other Loan
Documents until the close of business on the Final Disbursement Date.


 


2.08
Repayment Terms. (a) The Borrower on a Revolving Loan Facility shall pay in full
the outstanding Loan Facility Obligations no later than the first Business Day after the Final Disbursement Date unless such Loan
Facility is renewed or extended by Lender consistent with procedures required by Ex-Im
Bank.


 


(b)       The
Borrower on a Transaction Specific Loan Facility and a Transaction Specific


Revolving
Loan Facility shall, within two (2) Business Days of the receipt thereof, pay to Lender (for
application against the outstanding Loan Facility Obligations) all checks, drafts, cash and other
remittances it may receive in payment or on account of the Export-Related Accounts Receivable,
Export-Related Overseas Accounts Receivable or any other Collateral, in precisely the form received (except for the endorsement
of Borrower where necessary). Pending such deposit, Borrower shall hold such amounts
in trust for Lender separate and apart and shall not commingle any such items of payment
with any of its other funds or property. Unless a Transaction Specific Loan Facility
or Transaction Specific Revolving Loan Facility is renewed or extended by Lender consistent
with procedures required by Ex-Im Bank, Borrower shall pay in full all outstanding
Loan Facility Obligations no later than the first Business Day after the Final Disbursement
Date, except for Eligible Export-Related Accounts Receivables and Eligible Export-Related
Overseas Accounts Receivable outstanding as of the Final Disbursement Date and due and payable after such date, for which the principal
and accrued and unpaid interest thereon shall be due and payable no later than the
first Business Day after the date such Accounts Receivable are due and payable.


 


2.09
Financial Statements. Borrower shall deliver to Lender the financial statements required
to be delivered by Borrower in accordance with Section 11 of the Loan Authorization Agreement.


 


2.10
Additional Security or Payment. (a) Borrower shall at all times ensure that the Export-Related Borrowing Base equals or
exceeds the aggregate outstanding amount of Disbursements. If informed by Lender or
if Borrower otherwise has actual knowledge that the Export-Related Borrowing Base is at any time less than the aggregate outstanding
amount of Disbursements, Borrower shall, within five (5) Business Days, either (i)
furnish additional Collateral to Lender, in form and amount satisfactory to Lender
and Ex-Im Bank or (ii) pay to Lender an amount equal to the difference between the
aggregate outstanding amount of Disbursements and the Export-Related Borrowing Base.


 






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(b)              
For purposes of this Agreement, in determining the Export-Related Borrowing Base there shall be deducted from the Export-Related
Borrowing Base an amount equal to (i) twenty-five percent (25%) of the undrawn amount of outstanding Commercial Letters of Credit
and Standby Letters of Credit and (ii) one hundred percent (100%) of the undrawn amount
of outstanding Warranty Letters of Credit less the amount of cash collateral held
by Lender to secure Warranty Letters of Credit.


 


(c)               
Unless otherwise approved in writing by Ex-Im Bank, for Revolving Loan Facilities
(other than Transaction Specific Revolving Loan Facilities), Borrower shall at all times ensure
that the sum of the outstanding amount of Disbursements and the undrawn amount of outstanding
Commercial Letters of Credit that is supported by Eligible Export-Related Inventory or Eligible Export-Related Overseas Inventory
(discounted by the relevant Advance Rate percentages) in the Export-Related Borrowing
Base does not exceed sixty percent (60%) of the sum of the total outstanding amount of Disbursements and the undrawn amount
of all outstanding Commercial Letters of Credit. If informed by Lender or if Borrower otherwise
has actual knowledge that the sum of the outstanding amount of Disbursements and the
undrawn amount of outstanding Commercial Letters of Credit that is supported by such
Inventory exceeds sixty percent (60%) of the sum of the total outstanding Disbursements
and the undrawn amount of all outstanding Commercial Letters of Credit, Borrower shall,
within five (5) Business Days, either (i) furnish additional non-Inventory Collateral
to Lender, in form and amount satisfactory to Lender and Ex-Im Bank, or (ii) pay down the applicable portion of the outstanding
Disbursements or (iii) reduce the undrawn amount of outstanding Commercial Letters
of Credit such that the above described ratio is not exceeded.


 


(d)              
If informed by Lender or if Borrower otherwise has actual knowledge that the
conditions of Section 2.16(g) are at any time not being met, Borrower shall, within
five (5) Business Days, either (i) furnish additional Collateral to Lender that is
not Eligible Export- Related Overseas Accounts Receivable or Eligible Export-Related
Overseas Inventory, in form and amount satisfactory to Lender and Ex-Im Bank, or (ii) remove from the Export-Related Borrowing
Base the portion of Eligible Export-Related Overseas Accounts Receivable or Eligible Export-Related
Overseas Inventory that supports greater than fifty percent (50%) of the Export-Related
Borrowing Base.


 


2.11
Continued Security Interest. Borrower shall not change (a) its name or identity in any
manner, (b) the location of its principal place of business or its jurisdiction of organization or formation,
(c) the location of any of the Collateral or (d) the location of any of the books or records
related to the Collateral, in each instance without giving thirty (30) days prior written notice
thereof to Lender and taking all actions deemed necessary or appropriate by Lender to continuously
protect and perfect Lender’s Liens upon the Collateral.


 


2.12
Inspection of Collateral and Facilities. (a) Borrower shall permit the representatives
of Lender and Ex-Im Bank to make at any time during normal business hours inspections
of the Collateral and of Borrower's facilities, activities, and books and records, and shall cause its officers and employees
to give full cooperation and assistance in connection therewith.


 



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(b)       Borrower
agrees to facilitate Lender’s conduct of field examinations at Borrower’s facilities in accordance with
the time schedule and content for such examinations that Lender requests. Such field
examinations shall address at a minimum: (x) the value of the Collateral against
which Credit Accommodations may be provided, (y) the amount, if any, that the
aggregate outstanding amount of Disbursements exceeds the Export-Related Borrowing Base and
(z) whether such Borrower is in material compliance with the terms of each of the Loan Documents. Such field examinations
shall include an inspection and evaluation of the Export- Related Inventory and
Export-Related Overseas Inventory, a book audit of Export-Related Accounts
Receivable and Export-Related Overseas Accounts Receivable, a review of the Accounts
Receivable Aging Reports and a review of Borrower’s compliance with any Special Conditions. Lenders who opt to
use the Export-Related Historical Inventory Value in the Export-Related Borrowing Base
calculation shall reconcile those numbers against the calculation for the
relevant time periods using the Export-Related Inventory Value. Whenever Export- Related
Accounts Receivable or Export-Related Inventory derived from Indirect Exports are in the
Export-Related Borrowing Base, Lender shall verify compliance with Section 2.15 herein, including
taking a random sampling of ultimate foreign purchasers.


 


2.13
General Intangibles. Borrower represents and warrants that it owns, or is licensed to
use, all General Intangibles necessary to conduct its business as currently conducted except where
the failure of Borrower to own or license such General Intangibles could not reasonably be
expected to have a Material Adverse Effect.


 


2.14
Economic Impact Approval. (a) For Loan Facilities up to and including $10 million,
Borrower acknowledges that Capital Goods may not be included as Items, and Export- Related
Inventory, Export-Related Overseas Inventory, Export-Related Accounts Receivable and Export-Related
Overseas Accounts Receivable in connection with the sale of such Capital Goods may
not be included in the Export-Related Borrowing Base, if such Capital Goods would enable a
foreign buyer to establish or expand production of a product where, as of the date of the Economic Impact Certification covering
such Item: (i) the Buyer is subject to a Final Anti- Dumping (AD) or Countervailing
Duty (CVD) order, or a Suspension Agreement arising from a AD or CVD investigation,
and such product is substantially the same as the product that is the subject of the
AD/CVD order or suspension agreement; or (ii) the Buyer is the subject of a Section 201 injury determination by the International
Trade Commission (“ITC”) and such product is substantially the same as
a product that is the subject of the ITC injury determination. Borrower may consult
with Ex-Im Bank regarding the appropriate application of this Section 2.14(a) and may, at its option, request that Ex-Im Bank issue
an Economic Impact Approval covering any Items listed in Section 4.A. of the Loan
Authorization Agreement. For Loan Facilities over $10 million involving Items that
are Capital Goods, Borrower shall obtain from Ex-Im Bank, and abide by, an Economic Impact Approval covering all Items listed in
Section 4(A) of the Loan Authorization Agreement.


 


(b) Borrower shall provide
Lender with a certification in the form of Annex B (an “Economic Impact Certification”)
covering the Items stated in Section 4(A) of the Loan Authorization Agreement prior
to Lender including such Items in the Loan Authorization Agreement. Prior to Lender
amending the Loan Authorization Agreement to include additional Items, Borrower shall
provide Lender with an additional Economic Impact Certification covering such additional
Items.


 






     19


     


    

 


2.15 Indirect
Exports. Indirect Exports may be included as Items in a Loan Facility provided
that funds available under such Loan Facility’s Export-Related Borrowing Base supported by Accounts
Receivable and Inventory derived from Indirect Exports at no time exceed ten percent
(10%) of the Maximum Amount of such Loan Facility, and provided, further  that
(a) the ultimate foreign buyer for the Items must be located in a country in which Ex-Im Bank
is not legally prohibited from doing business in accordance with the Country Limitation Schedule,
and (b) the Borrower must make available to Lender verifiable evidence of intent to export
the Indirect Exports from the United States, which evidence may be contained in the Export
Orders and Accounts Receivable Aging Reports and supporting documents. Lender must obtain
written consent from Ex-Im Bank prior to including funds derived from Indirect Exports in
an Export-Related Borrowing Base above the ten percent (10%) threshold.


 


2.16
Overseas Inventory and Accounts Receivable. Upon the prior written consent of Ex-Im
Bank, Export-Related Overseas Accounts Receivable and Export-Related Overseas Inventory of a Borrower or of an Affiliated Foreign
Person (as defined below) may be included in the Export-Related Borrowing Base provided
that conditions required by Ex-Im Bank, including the following, are met:


 


(a)              
the Affiliated Foreign Person, if any, has been approved by Ex-Im Bank;


 


(b)             
the Affiliated Foreign Person, if any, is a Borrower under the relevant Loan
Facility;


 


(c)              
notwithstanding the Maximum Amount of the Loan Facility, all payments due and
payable on such Export-Related Overseas Accounts Receivable are collected through a
cash collateral account under Lender’s control;


 


(d)             
as of the Effective Date, or such later date when the Export-Related Overseas
Accounts Receivable and/or Export-Related Overseas Inventory are added to the Loan
Facility, Lender has obtained a valid and enforceable first priority Lien in the Export-Related Overseas Accounts
Receivable and Export-Related Overseas Inventory, as applicable;


 


(e)              
as of the Effective Date, or such later date when the Export-Related Overseas
Accounts Receivable and/or Export-Related Overseas Inventory are added to the Loan
Facility, Lender has obtained a legal opinion confirming the security interest in
the Export-Related Overseas Accounts Receivable and Export-Related Overseas Inventory;


 


(f)              
the Export-Related Overseas Accounts Receivable are due and payable in United
States Dollars or other currency acceptable to Ex-Im Bank; and


 


(g)                     
at no time may the portion of the Export-Related Borrowing Base derived from Eligible
Export-Related Overseas Accounts Receivable and Eligible Export-Related Overseas Inventory
exceed fifty percent (50%) of the Export-Related Borrowing Base.


 


For
purposes hereof, an “Affiliated Foreign Person” shall mean a subsidiary or affiliate
of a Borrower on the same Loan Facility, which has duly executed as a Borrower all of the applicable Loan Documents and any other
documents required by Ex-Im Bank, meets all of the requirements of the definition of
Eligible Person other than subclause (a) thereof and is in good standing in the country
of its formation or otherwise authorized to conduct business in such country.


 






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2.17
Country Limitation Schedule. Unless otherwise informed in writing by Lender or Ex-Im
Bank, Borrower shall be entitled to rely on the last copy of the Country Limitation Schedule
distributed from Lender to Borrower.


 


2.18
Notice of Certain Events. Borrower shall promptly, but in any event within five (5)
Business Days, notify Lender in writing of the occurrence of any of the following:


 


(a)                 
Borrower or any Guarantor (i) applies for, consents to or suffers the appointment of,
or the taking of possession by, a receiver, custodian, trustee, liquidator or similar fiduciary of itself
or of all or a substantial part of its property or calls a meeting of its creditors, (ii) admits in writing
its inability, or is generally unable, to pay its debts as they become due or ceases operations
of its present business, (iii) makes a general assignment for the benefit of creditors, (iv)
commences a voluntary case under any state or federal bankruptcy laws (as now or hereafter in effect), (v) is adjudicated
as bankrupt or insolvent, (vi) files a petition seeking to take advantage of any other law
providing for the relief of debtors, (vii) acquiesces to, or fails to have dismissed
within thirty (30) days, any petition filed against it in any involuntary case under such bankruptcy
laws, or (vii) takes any action for the purpose of effecting any of the foregoing;


 


(b)                 
any Lien in any of the Collateral, granted or intended by the Loan Documents
to be granted to Lender, ceases to be a valid, enforceable, perfected, first priority Lien (or a lesser priority
if expressly permitted pursuant to Section 6 of the Loan Authorization Agreement) subject
only to Permitted Liens;


 


(c)                 
the issuance of any levy, assessment, attachment, seizure or Lien, other than
a Permitted Lien, against any of the Collateral which is not stayed or lifted within
thirty (30) calendar days;


 


(d)                 
any proceeding is commenced by or against Borrower or any Guarantor for the
liquidation of its assets or dissolution;


 


(e)                 
any litigation is filed against Borrower or any Guarantor which has had or
could reasonably be expected to have a Material Adverse Effect and such litigation is not withdrawn or dismissed
within thirty (30) calendar days of the filing thereof;


 


(f)                  
any default or event of default under the Loan Documents;


 


(g)                 
any failure to comply with any terms of the Loan Authorization Agreement;


 


(h)                 
any material provision of this Agreement or any other Loan Document for any
reason ceases to be valid, binding and enforceable in accordance with its terms;


 


(i)                  
any event which has had or could reasonably be expected to have a Material Adverse
Effect; or


 


(j)                  
the aggregate outstanding amount of Disbursements exceeds the applicable Export-Related
Borrowing Base.


 






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2.19
Insurance. Borrower will at all times carry property, liability and other insurance, with
insurers acceptable to Lender, in such form and amounts, and with such deductibles and other provisions,
as Lender shall require, and Borrower will provide evidence of such insurance to Lender on the proper Acord Form, so that Lender
is satisfied that such insurance is, at all times, in full force and effect. Each
property insurance policy shall name Lender as loss payee or mortgagee and shall contain
a lender's loss payable endorsement in form acceptable to Lender and each liability insurance
policy shall name Lender as an additional insured. All policies of insurance shall provide that
they may not be cancelled or changed without at least thirty (30) days' prior written notice to Lender
and shall otherwise be in form and substance satisfactory to Lender. Borrower will promptly
deliver to Lender copies of all reports made to insurance companies.


 


2.20
Taxes. Borrower has timely filed all tax returns and reports required by applicable law, has timely paid all applicable
taxes, assessments, deposits and contributions owing by Borrower and will timely pay all such items in the future as they became
due and payable. Borrower may, however, defer payment of any contested taxes; provided,
that Borrower (a) in good faith contests Borrower's obligation to pay such taxes by
appropriate proceedings promptly and diligently instituted and conducted; (b) notifies
Lender in writing of the commencement of, and any material development in, the proceedings;
(c) posts bonds or takes any other steps required to keep the contested taxes from
becoming a Lien upon any of the Collateral; and (d) maintains adequate reserves therefore
in conformity with GAAP.


 


2.21
Compliance with Laws. Borrower represents and warrants that it has complied in all
material respects with all provisions of all applicable laws and regulations, including those relating to Borrower's ownership
of real or personal property, the conduct and licensing of Borrower's business, the
payment and withholding of taxes, ERISA and other employee matters, safety and environmental matters.


 


2.22
Negative Covenants. Without the prior written consent of Ex-Im Bank and Lender,
Borrower shall not: (a) merge, consolidate or otherwise combine with any other Person; (b)
acquire all or substantially all of the assets or capital stock of any other Person; (c) sell, lease, transfer,
convey, assign or otherwise dispose of any of its assets, except for the sale of Inventory in
the ordinary course of business and the disposition of obsolete equipment in the ordinary course
of business; (d) create any Lien on the Collateral except for Permitted Liens; (e) make any material
changes in its organizational structure or identity; or (f) enter into any agreement to do any
of the foregoing.


 


2.23
Cross Default. Borrower shall be deemed in default under the Loan Facility if Borrower
fails to pay when due any amount payable to Lender under any loan or other credit accommodations
to Borrower whether or not guaranteed by Ex-Im Bank.


 


2.24
Munitions List. If any of the Items are articles, services, or related technical data that
are listed on the United States Munitions List (part 121 of title 22 of the Code of Federal Regulations),
Borrower shall send a written notice promptly, but in any event within five (5) Business
Days, of Borrower learning thereof to Lender describing the Items(s) and the corresponding invoice amount


.



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2.25 Suspension
and Debarment, etc. On the date of this Agreement neither Borrower nor its
Principals are (a) debarred, suspended, proposed for debarment with a final determination still pending, declared
ineligible or voluntarily excluded (as such terms are defined under any of the
Debarment Regulations referred to below) from participating in procurement or nonprocurement
transactions with any United States federal government department or agency pursuant
to any of the Debarment Regulations or (b) indicted, convicted or had a civil judgment rendered
against Borrower or any of its Principals for any of the offenses listed in any of the Debarment
Regulations. Unless authorized by Ex-Im Bank, Borrower will not knowingly enter into
any transactions in connection with the Items with any person who is debarred, suspended, declared
ineligible or voluntarily excluded from participation in procurement or nonprocurement transactions
with any United States federal government department or agency pursuant to any of the Debarment Regulations. Borrower will
provide immediate written notice to Lender if at any time it learns that the
certification set forth in this Section 2.24 was erroneous when made or has become
erroneous by reason of changed circumstances.


 


ARTICLE III

RIGHTS AND REMEDIES


 


3.01
Indemnification. Upon Ex-Im Bank's payment of a Claim to Lender in connection
with the Loan Facility pursuant to the Master Guarantee Agreement, Ex-Im Bank may assume
all rights and remedies of Lender under the Loan Documents and may enforce any such
rights or remedies against Borrower, the Collateral and any Guarantors. Borrower shall hold
Ex-Im Bank and Lender harmless from and indemnify them against any and all liabilities, damages, claims, costs and losses incurred
or suffered by either of them resulting from (a) any materially incorrect certification or statement knowingly made by Borrower
or its agent to Ex-Im Bank or Lender in connection with the Loan Facility, this Agreement,
the Loan Authorization Agreement or any other Loan Documents or (b) any material breach
by Borrower of the terms and conditions of this Agreement, the Loan Authorization Agreement
or any of the other Loan Documents. Borrower also acknowledges that any statement, certification or representation made
by Borrower in connection with the Loan Facility is subject to the penalties provided in Article
18 U.S.C. Section 1001.


 


3.02
Liens. Borrower agrees that any and all Liens granted by it to Lender are also hereby
granted to Ex-Im Bank to secure Borrower’s obligation, however arising, to reimburse Ex-Im
Bank for any payments made by Ex-Im Bank pursuant to the Master Guarantee Agreement.
Lender is authorized to apply the proceeds of, and recoveries from, any property subject
to such Liens to the satisfaction of Loan Facility Obligations in accordance with the terms
of any agreement between Lender and Ex-Im Bank.


 






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ARTICLE IV

MISCELLANEOUS


 


4.01
Governing Law. This Agreement and the obligations arising under this Agreement
shall be governed by, and construed in accordance with, the law of the state governing
the Loan Agreement.


 


4.02
Notification. All notices required by this Agreement shall be given in the manner and
to the parties provided for in the Loan Agreement.


 


4.03
Partial Invalidity. If at any time any of the provisions of this Agreement becomes illegal,
invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality,
the validity nor the enforceability of the remaining provisions hereof shall in any way be affected
or impaired.


 


4.04
Waiver of Jury Trial. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT, PROCEEDING OR OTHER LITIGATION BROUGHT
TO RESOLVE ANY DISPUTE ARISING UNDER, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
THE LOAN AUTHORIZATION AGREEMENT, ANY LOAN DOCUMENT, OR ANY OTHER AGREEMENT, DOCUMENT
OR INSTRUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS
OR OMISSIONS OF LENDER, EX- IM BANK, OR ANY OTHER PERSON, RELATING TO THIS AGREEMENT,
THE LOAN AUTHORIZATION AGREEMENT OR ANY OTHER LOAN DOCUMENT.


 


4.05 Consequential
Damages. Neither Ex-Im Bank, Lender nor any agent or attorney for any of them shall be
liable to Borrower for consequential damages arising from any breach of contract,
tort or other wrong relating to the establishment, administration or collection of the Loan
Facility Obligations.


 



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IN
WITNESS WHEREOF, Borrower has caused this Agreement to be duly executed as of the 6th day of December, 2017.


 


 


 



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ANNEXES:


 


Annex A-
Loan Authorization Agreement, Fast Track Loan Authorization Agreement or Loan Authorization Notice, as applicable


 


Annex B-
Economic Impact Certification


 


 


 


 



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CONSENT
OF GUARANTORS


 


The
undersigned, as a Guarantor of the obligations of Borrower to the Lender executing
the foregoing Agreement, hereby agrees that the foregoing Agreement, its Guarantee
Agreement and each other Loan Documents may be assigned to the Export-Import Bank
of the United States.





 


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