exv10w1



 





	 	 	 	 	 
	 

	 	SIXTH MODIFICATION AGREEMENT
	 	EXHIBIT 10.1







	 	 	 	 	 
	DATE:

	 	 	 	March 19, 2004
	 
	 	 	 	 
	PARTIES:

	 	Borrower:
	 	WHITE ELECTRONIC DESIGNS CORPORATION,
	

	 	 	 	an Indiana corporation
	 
	 	 	 	 
	

	 	Lender:
	 	BANK ONE, NA, a national banking association with
	

	 	 	 	its main office in Chicago, Illinois, successor by merger
	

	 	 	 	to Bank One, Texas, N.A.







RECITALS:




     A. Lender has extended to Borrower credit pursuant to the Loan and
Security Agreement, dated January 7, 2000 (“Loan Agreement”) in the principal
amount of $12,000,000.00 (the “Loan”) and evidenced by the Promissory Note,
dated June 30, 2000 (“Note”). The unpaid principal of the Loan as of the date
hereof is $_0   . Capitalized terms used herein and not otherwise
defined shall have the meanings given them in the Loan Agreement.



     B. The Loan is secured by, among other things, the Mortgage, Security
Agreement, Assignment of Rents and Fixture Filing, dated January 7, 2000 (“Deed
of Trust”), by Borrower, as trustor, for the benefit of Lender, as beneficiary,
recorded on January 11, 2000, at Document No. 200002196, records of Allen
County, Indiana. The agreements, documents, and instruments securing the Loan
and the Note are referred to individually and collectively as the “Security
Documents.”



     C. Lender and Borrower have executed and delivered previously the
following agreements (“Modifications”) modifying the terms of the Loan, the
Note, the Loan Agreement, and/or the Security Documents: First Amendment to
Loan and Security Agreement dated as of June 30, 2000, Second Amendment to Loan
and Security Agreement dated as of June 29, 2001, Third Modification Agreement
dated as of March 28, 2002, Fourth Modification Agreement dated as of January
13, 2003 and Fifth Modification Agreement dated as of March 13, 2003. The
Note, the Loan Agreement, the Security Documents, any arbitration resolution,
any environmental certification and indemnity agreement, and all other
agreements, documents, and instruments evidencing, securing, or otherwise
relating to the Loan, as modified in the Modifications, are sometimes referred
to individually and collectively as the “Loan Documents.” Hereinafter, “Note,”
“Loan Agreement,” “Deed of Trust” and “Security Documents” shall mean such
documents as modified in the Modifications.



     D. Unlimited Guaranties guaranteeing repayment of the Loan (the “Guarantee
Agreements”) were executed and delivered to Lender by Electronic Designs, Inc.,
a Delaware corporation (“EDI”), and Panelview, Incorporated, an Oregon
corporation (“Panelview”).



 









 





     E. IDS Reorganization Corp., an Arizona corporation, a wholly-owned
subsidiary of Borrower, has merged (the “Merger”) with and into Interface Data
Systems, Inc., an Arizona corporation (“IDSI”); IDS Acquisition Corporation, an
Arizona corporation (“IDSA”), continues as a subsidiary of IDSI.



     F. Borrower has requested that Lender modify the Loan and the Loan
Documents as provided herein. Lender is willing to so modify the Loan and the
Loan Documents, subject to the terms and conditions herein.



AGREEMENT:




     For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Borrower and Lender agree as follows:


SECTION 1. ACCURACY OF RECITALS.




     1.1 Borrower acknowledges the accuracy of the Recitals.


SECTION 2. MODIFICATION OF LOAN DOCUMENTS; OTHER AGREEMENTS.




     2.1 The following definitions in Section 1.1 of the Loan Agreement are
hereby amended to read as follows:




     “Guarantors” means Panelview, IDSI and IDSA, each a Guarantor.




     “Termination Date” means March 28, 2006.



     2.2
Section 6.2 of the Loan Agreement is hereby amended to read as follows:



     Section 6.2 Collection of Accounts.




     (a) Upon the occurrence of an Event of Default, Borrower
shall cause all moneys, checks, notes, drafts and other payments
relating to or constituting proceeds of accounts, or of any other
Collateral, to be forwarded to a Lockbox for deposit in (i) the
Collection Account, if such Lockbox is maintained pursuant to a
Lockbox agreement with Lender, and (ii) a Blocked Account, if such
Lockbox is maintained with a Collecting Bank pursuant to a Blocked
Account Agreement, in accordance with the procedures set out in
the corresponding Blocked Account Agreement. In particular, upon
the occurrence of an Event of Default, Borrower shall (i) advise
each Account Debtor to address to a Lockbox specified by Lender
all remittances with respect to amounts payable on all accounts,
and (ii) stamp all invoices relating to any such amounts with a
legend satisfactory to Lender indicating that payment is to be
made to Borrower via such specified Lockbox.




     (b) Upon the occurrence of an Event of Default, Borrower
shall cause Panelview, IDSI and IDSA to cause all moneys, checks,
notes, drafts and other payments relating to or constituting
proceeds of accounts, and of all other Collateral provided by
Panelview, IDSI and IDSA, to be deposited in, or



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forwarded to, the Collection Account not less often than
weekly. Upon the occurrence of an Event of Default, Borrower shall
cause Panelview, IDSI and IDSA to cause all such proceeds to be
deposited in a Blocked Account for forwarding to the Collection
Account.




     (c) Upon the occurrence of an Event of Default, Borrower and
Lender shall cause all balances in each Blocked Account to be
transmitted daily to the Collection Account by wire transfer or
depository transfer check or Automated Clearing House transfer in
accordance with the procedures set forth in the corresponding
Blocked Account Agreement. Deposits in the Collection Account that
represent proceeds of accounts of Borrower shall be credited,
subject to final payment, to the payment of the Obligations two
days after the date of actual receipt and deposit into the
Collection Account by Lender. Deposits in the Collection Account
that represent proceeds of accounts of Panelview, IDSI or IDSA
shall be credited, subject to final payment, to the payment of the
Obligations on the date of actual receipt and deposit into the
Collection Account by Lender. The delay in applying funds held in
the Collection Account to the Obligations shall in all respects be
limited so that interest on the Obligations is at all times less
than interest calculated at the Maximum Rate.




     (d) Upon the occurrence of an Event of Default, Borrower
shall, and shall cause each Guarantor to hold any payments which
are received by Borrower or any Guarantor (including any payment
evidenced by a promissory note or other instrument) in trust for
Lender. Borrower shall, and shall cause each Guarantor to cause
all such payments to be (i) deposited in the Collection Account,
or (ii) delivered to Lender, as promptly as possible in the exact
form received, together with any necessary endorsements.



     2.3 Section 9.1(c) of the Loan Agreement is hereby amended to read as
follows:




     (c) [Intentionally left blank].



     2.4 Exhibit “B” of the Loan Agreement is hereby amended to read as
attached hereto as Exhibit “B”.



     2.5 The Note is hereby amended as follows:




     (a) “Maturity Date” is hereby amended from March 28, 2004 to March
28, 2006.



     2.6 Upon satisfaction of the Conditions Precedent specified in Section 6
hereof, Lender hereby agrees that EDI shall be deemed released from liability
under any Loan Document to which EDI is a party and the Unlimited Guaranty
delivered to Lender by EDI shall be deemed terminated.



     2.7 Each of the Loan Documents is modified to provide that it shall be a
default or an event of default thereunder if Borrower shall fail to comply with
any of the covenants of Borrower herein or if any representation or warranty by
Borrower herein or by any guarantor in



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any related Consent and Agreement of Guarantors is materially incomplete,
incorrect, or misleading as of the date hereof.




     2.8 Each reference in the Loan Documents to any of the Loan Documents is
hereby amended to be a reference to such document as modified herein.


SECTION 3. RATIFICATION OF LOAN DOCUMENTS AND COLLATERAL.




     The Loan Documents are ratified and affirmed by Borrower and shall remain
in full force and effect as modified herein. Any property or rights to or
interests in property granted as security in the Loan Documents shall remain as
security for the Loan and the obligations of Borrower in the Loan Documents.


SECTION 4. BORROWER REPRESENTATIONS AND WARRANTIES.




     Borrower represents and warrants to Lender:



     4.1 No default or event of default under any of the Loan Documents as
modified herein, nor any event, that, with the giving of notice or the passage
of time or both, would be a default or an event of default under the Loan
Documents as modified herein has occurred and is continuing.



     4.2 There has been no material adverse change in the financial condition
of Borrower or any other person whose financial statement has been delivered to
Lender in connection with the Loan from the most recent financial statement
received by Lender.



     4.3 Each and all representations and warranties of Borrower in the Loan
Documents are accurate on the date hereof.



     4.4 Borrower has no claims, counterclaims, defenses, or set-offs with
respect to the Loan or the Loan Documents as modified herein.



     4.5 The Loan Documents as modified herein are the legal, valid, and
binding obligation of Borrower, enforceable against Borrower in accordance with
their terms.



     4.6 Borrower is validly existing under the laws of the State of its
formation or organization and has the requisite power and authority to execute
and deliver this Agreement and to perform the Loan Documents as modified
herein. The execution and delivery of this Agreement and the performance of
the Loan Documents as modified herein have been duly authorized by all
requisite action by or on behalf of Borrower. This Agreement has been duly
executed and delivered on behalf of Borrower.


SECTION 5. BORROWER COVENANTS.




     Borrower covenants with Lender:



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     5.1 Borrower shall execute, deliver, and provide to Lender such additional
agreements, documents, and instruments as reasonably required by Lender to
effectuate the intent of this Agreement.



     5.2 Borrower fully, finally, and absolutely and forever releases and
discharges Lender and its present and former directors, shareholders, officers,
employees, agents, representatives, successors and assigns, and their separate
and respective heirs, personal representatives, successors and assigns, from
any and all actions, causes of action, claims, debts, damages, demands,
liabilities, obligations, and suits, of whatever kind or nature, in law or
equity of Borrower, whether now known or unknown to Borrower, and whether
contingent or matured, (i) in respect of the Loan, the Loan Documents, or the
actions or omissions of Lender in respect of the Loan or the Loan Documents and
(ii) arising from events occurring prior to the date of this Agreement.


SECTION 6. CONDITIONS PRECEDENT.




     The agreements of Lender and the modifications contained herein shall not
be binding upon Lender until Lender has executed and delivered this Agreement
and Lender has received, at Borrower’s expense, all of the following, all of
which shall be in form and content satisfactory to Lender and shall be subject
to approval by Lender:



     6.1 An original of this Agreement fully executed by the Borrower,
Panelview, IDSI and IDSA.



     6.2 If Borrower or any Guarantor is a corporation, limited liability
company, partnership or trust, such resolutions or authorizations and such
other documents as Lender may require relating to the existence and good
standing of that corporation, partnership or trust, and the authority of any
person executing this Agreement or other documents on behalf of that
corporation, limited liability company, partnership or trust.



     6.3 Payment of all the internal and external costs and expenses incurred
by Lender in connection with this Agreement (including, without limitation,
inside and outside attorneys, appraisal, appraisal review, processing, title,
filing, and recording costs, expenses, and fees).


SECTION 7. INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR
WAIVER.




     The Loan Documents as modified herein contain the complete understanding
and agreement of Borrower and Lender in respect of the Loan and supersede all
prior representations, warranties, agreements, arrangements, understandings,
and negotiations. No provision of the Loan Documents as modified herein may be
changed, discharged, supplemented, terminated, or waived except in a writing
signed by the parties thereto.


SECTION 8. BINDING EFFECT.




     The Loan Documents as modified herein shall be binding upon and shall
inure to the benefit of Borrower and Lender and their successors and assigns
and the executors, legal administrators, personal representatives, heirs,
devisees, and beneficiaries of Borrower; provided,



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however, Borrower may not assign any of its right or delegate any of its
obligation under the Loan Documents and any purported assignment or delegation
shall be void.



SECTION 9. CHOICE OF LAW.




     This Agreement shall be governed by and construed in accordance with the
laws of the State of Arizona, without giving effect to conflicts of law
principles.


SECTION 10. COUNTERPART EXECUTION.




     This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document. Signature pages may be detached from the counterparts and
attached to a single copy of this Agreement to physically form one document.



     DATED as of the date first above stated.



	 	 	 
	 

	 	WHITE ELECTRONIC DESIGNS

CORPORATION, an Indiana corporation
	 
	 	 
	

	 	By:                                                                                                
	

	 	Name:                                                                                                
	

	 	Title:                                                                                                







BORROWER




	 	 	 
	 

	 	BANK ONE, NA, a national banking association

with its main office in Chicago, Illinois, successor

by merger to Bank One, Texas, N.A.
	 
	 	 
	

	 	By:                                                                                                
	

	 	Name:                                                                                                
	

	 	Title:                                                                                                







LENDER




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CONSENT AND AGREEMENT OF GUARANTORS




     With respect to the Sixth Modification Agreement, dated March 19, 2004
(“Agreement”), between WHITE ELECTRONIC DESIGNS CORPORATION, an Indiana
corporation (“Borrower”), and BANK ONE, NA, a national banking association with
its main office in Chicago, Illinois, successor by merger to Bank One, Texas,
N.A. (“Lender”), the undersigned (individually and, if more than one,
collectively “Guarantor”) agrees for the benefit of Lender as follows:



     1. Guarantor acknowledges (i) receiving a copy of and reading the
Agreement, (ii) the accuracy of the Recitals in the Agreement, and (iii) the
effectiveness of (A) the Guarantee Agreements as modified herein, and (B) any
other agreements, documents, or instruments securing or otherwise relating to
the Guarantee Agreements (including, without limitation, any arbitration
resolution and any environmental certification and indemnity agreement
previously executed and delivered by the undersigned) and the Security
Documents delivered by Guarantor (the “Security Agreements”), as modified
herein. The Guarantee Agreements, the Security Agreements and such other
agreements, documents, and instruments, as modified herein, are referred to
individually and collectively as the “Guarantor Documents.”



     2. Guarantor consents to the modification of the Loan Documents and all
other matters in the Agreement. In addition, each Guarantor hereby agrees,
respectively, that the Guarantee Agreement and Security Agreement delivered by
it for the benefit of Lender are hereby amended to include among other things
any additional indebtedness incurred by Borrower pursuant to the Agreement,
including without limitation any Rate Management Transaction, for purposes of
the description of the indebtedness guaranteed and secured thereby.



     3. Guarantor fully, finally, and forever releases and discharges Lender
and its successors, assigns, directors, officers, employees, agents, and
representatives from any and all actions, causes of action, claims, debts,
demands, liabilities, obligations, and suits of whatever kind or nature, in law
or equity, that Guarantor has or in the future may have, whether known or
unknown, (i) in respect of the Loan, the Loan Documents, the Guarantor
Documents, or the actions or omissions of Lender in respect of the Loan, the
Loan Documents, or the Guarantor Documents and (ii) arising from events
occurring prior to the date hereof.



     4. Guarantor agrees that all references, if any, to the Note, the Loan
Agreement, the Deed of Trust, the Security Documents, and the Loan Documents in
the Guarantor Documents shall be deemed to refer to such agreements, documents,
and instruments as modified by the Agreement.



     5. Guarantor reaffirms the Guarantor Documents and agrees that the
Guarantor Documents continue in full force and effect and remain unchanged,
except as specifically modified by this Consent and Agreement of Guarantors.
Any property or rights to or interests in property granted as security in the
Guarantor Documents shall remain as security for the Guarantee Agreements and
the obligations of Guarantor in the Guarantee Agreements.



     6. Guarantor agrees that the Loan Documents, as modified by the Agreement,
and the Guarantor Documents, as modified by this Consent and Agreement of
Guarantors, are the



 









 




legal, valid, and binding obligations of Borrower and the undersigned,
respectively, enforceable in accordance with their terms against Borrower and
the undersigned, respectively.




     7. Guarantor agrees that Guarantor has no claims, counterclaims, defenses,
or offsets with respect to the enforcement against Guarantor of the Guarantor
Documents.



     8. Guarantor represents and warrants that there has been no material
adverse change in the financial condition of any Guarantor from the most recent
financial statement received by Lender.



     9. Guarantor waives and agrees not to assert with respect to the Guarantor
Documents: (a) any right to require Lender to proceed against Borrower or any
other guarantor, to proceed against or exhaust any security for the
indebtedness, to pursue any other remedy available to Lender, or to pursue any
remedy in any particular order or manner; (b) demand, diligence, presentment
for payment, protest and demand, and notice of extension, dishonor, protest,
demand, nonpayment and acceptance of the Guarantee Agreements; (c) notice of
the existence, creation or incurring of new or additional indebtedness of
Borrower to Lender; (d) the benefits of any statutory provision limiting the
liability of a surety, including without limitation the provisions of A.R.S.
Sections 12-1641, et seq.; (e) any defense arising by reason of any disability
or other defense of Borrower or by reason of the cessation from any cause
whatsoever (other than payment in full) of the liability of Borrower for the
indebtedness; and (f) the benefits of any statutory provision limiting the
right of Lender to recover a deficiency judgment, or to otherwise proceed
against any person or entity obligated for payment of the indebtedness, after
any foreclosure or trustee’s sale of any security for the indebtedness.



     10. Guarantor agrees that the Guarantor Documents are hereby modified to
provide that they shall be governed by and construed in accordance with the
laws of the State of Arizona, without giving effect to conflicts of law
principles.



     11. Guarantor agrees that this Consent and Agreement of Guarantors may be
executed in one or more counterparts, each of which shall be deemed an original
and all of which together shall constitute one and the same document.
Signature and acknowledgement pages may be detached from the counterparts and
attached to a single copy of this Consent and Agreement of Guarantors to
physically form one document.



     DATED as of the date of the Agreement.



	 	 	 
	 

	 	PANELVIEW, INCORPORATED, an Oregon

corporation
	 
	 	 
	

	 	By:                                                                                                
	

	 	Name:                                                                                                
	

	 	Title:                                                                                                







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	 	INTERFACE DATA SYSTEMS, INC., an Arizona

corporation
	 
	 	 
	

	 	By:                                                                                                
	

	 	Name:                                                                                                
	

	 	Title:                                                                                                
	 
	 	 
	

	 	IDS ACQUISITION CORPORATION, an Arizona

corporation
	 
	 	 
	

	 	By:                                                                                                
	

	 	Name:                                                                                                
	

	 	Title:                                                                                                







GUARANTOR




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EXHIBIT “B”




COMPLIANCE CERTIFICATE




     This Compliance Certificate (this “Certificate”) is executed and delivered
pursuant to and in accordance with the provisions of that certain Loan and
Security Agreement (as amended from time to time, the “Loan Agreement”) dated
as of January 7, 2000, between WHITE ELECTRONIC DESIGNS CORPORATION, an Indiana
corporation (“Borrower”), and BANK ONE, NA, a national banking association with
its main office in Chicago, Illinois successor by merger to Bank One, Texas,
N.A. (“Bank”). All capitalized terms used in this Certificate, if not
otherwise defined herein, shall have the respective meanings assigned to such
terms under the Loan Agreement.



     The undersigned hereby
represents and warrants to Bank as follows:



     1. Authority. The
undersigned is the [president] [chief financial
officer] of Borrower.



     2. Review.
The undersigned has reviewed (a) the activities of Borrower
during Borrower’s fiscal period ending
               
   , 200       (the “Subject
Fiscal Period”), (b) the financial condition of Borrower as of the last day of
the Subject Fiscal Period, and (c) the Loan Agreement and all of the other Loan
Documents.



     3. Compliance. Based upon my review of the financial condition of
Borrower and the other information and documents described in paragraph 2
above, Borrower (a) has observed, performed and fulfilled its obligations and
covenants contained in the Loan Agreement and the other Loan Documents, and (b)
no Default or Event of Default has occurred and is continuing or, if any
Default or Event of Default has occurred, the nature and status of such Default
or Event of Default is described as follows:
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               
               .

     4. Financial Covenants. The financial information of Borrower that the
undersigned has provided below demonstrates the Borrower’s compliance with the
financial covenants set forth in the Loan Agreement. All of such financial
information is true and correct as of the last day of the Subject Fiscal Period
(unless another date or a specific time period is stated). The Subsections
specifically referenced below have been provided to identify the applicable
provision in the Loan Agreement which covers the subject financial covenant.
All financial covenants are calculated on a consolidated basis.




     (a) Maximum Liabilities to Tangible Net Worth. Permit the
ratio of Borrower’s consolidated total Liabilities to its
consolidated Tangible Net Worth at any month end to be greater
than 1.25 to 1.0.



 









 





	 	 	 	 	 
	(A)

	 	Maximum ratio of Liabilities
to Tangible Net Worth permitted under
Section 9.1(a) of the Loan Agreement
	 	1.25 to 1.0
	 
	 	 	 	 
	(B)

	 	Total Liabilities:
	 	$                   
	 
	 	 	 	 
	(C)

	 	Net Worth
	 	$                   
	 
	 	 	 	 
	(D)

	 	All intangible items, amounts
due from Affiliates, employees and
shareholders and all other items which
should properly be treated as intangibles
in accordance with GAAP
	 	$                   
	 
	 	 	 	 
	(E)

	 	Tangible Net Worth (item (C)
minus item (D)):
	 	$                   
	 
	 	 	 	 
	(F)

	 	Ratio of total Liabilities to
Tangible Net Worth (total of item (B) above
divided by item (C) above)
	 	   to 1.0







     (b) Minimum Debt Service Coverage. Pursuant to Section
9.1(b) of the Loan Agreement, Borrower shall not permit, as of the
last day of each fiscal quarter, the ratio of Borrower’s
consolidated Debt Service Coverage Ratio for the twelve
consecutive months ending with such quarter end, to be less 1.25
to 1.0.



	 	 	 	 	 
	(A)

	 	Consolidated Net Income of Borrower
	 	$                   
	 
	 	 	 	 
	(B)

	 	Income Taxes
	 	$                   
	 
	 	 	 	 
	(C)

	 	Interest Expense
	 	$                   
	 
	 	 	 	 
	(D)

	 	Depreciation and amortization expense
	 	$                   
	 
	 	 	 	 
	(E)

	 	Non-Financed Capital Expenditures
	 	$                   
	 
	 	 	 	 
	(F)

	 	Principal and interest paid on Funded Indebtedness
	 	$                   
	 
	 	 	 	 
	(G)

	 	Debt Service Coverage Ratio [(A)+(B)+(C)+(D)-(E)/(F)]
	 	$                   







Dated:                    




	 	 	 
	 

	 	WHITE ELECTRONIC DESIGNS CORPORATION
	 
	 	 
	

	 	By:                                                                                                
	

	 	          Hamid R. Shokrgozar, President







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