1
FOURTH AMENDMENT
TO
LOAN AGREEMENT
AMONG
BANK OF AMERICA, N.A.
AND
▇▇▇▇▇▇▇, INC.,
▇▇▇▇▇▇▇/STC, INC.,
▇▇▇▇▇▇▇ WIRELESS, INC.
AND
▇▇▇▇▇▇▇ OCS, INC.
This AMENDMENT to LOAN AGREEMENT (the "Amendment") is entered into as
of September 30, 1999, by ▇▇▇▇▇▇▇, INC., ▇▇▇▇▇▇▇/STC, INC., ▇▇▇▇▇▇▇ WIRELESS,
INC., AND ▇▇▇▇▇▇▇ OCS, INC. (collectively and separately, "Borrower") and BANK
OF AMERICA. N.A. (formerly known as NationsBank, N.A., which was successor by
merger to The Boatmen's National Bank of St. Louis) ("Bank").
RECITALS:
A. Borrower and Bank are parties to that certain Loan Agreement dated as of June
25, 1996, as amended by the amendment thereto dated March 20, 1997, and the
amendment thereto dated as of June 25, 1999 (as it may be amended, restated,
extended, renewed, replaced, or otherwise modified from time to time, the "Loan
Agreement").
B. Borrower has requested that Bank amend the Loan Agreement to increase
availability under the Borrower Base, which Bank is willing to do upon the terms
and conditions contained herein.
Therefore, in consideration of the mutual agreements herein and other
sufficient consideration, the receipt of which is hereby acknowledged, Borrower
and Bank hereby amend the Loan Agreement as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined herein
have the meanings given them in the Loan Agreement as amended hereby.
2. EFFECTIVE DATE OF AMENDMENT. This Amendment shall become effective as
of September 30, 1999.
3. AMENDMENTS TO LOAN AGREEMENT.
3.1 REVISED BORROWING BASE. Section 3.1.2 of the Loan
Agreement is hereby amended to read in its entirety as follows:
"3.1.4. BORROWING BASE. The "Borrowing Base" on any date for any
Revolving Advance shall be the sum of:
3.1.4.1. 85% of the total outstanding principal balance of
Eligible Accounts as of the close of business on such date, or
as certified in the Borrowing Base
1
2
Certificate most recently furnished to Lender as required in
Section 14.14, whichever is less; plus
3.1.4.2. An amount equal to the sum of (i) 50% of the value of
all Eligible Inventory that is finished goods, (ii) 30% of the
value of all Eligible Inventory that is raw materials or
work-in-process at the close of business on such date, or as
certified in the Borrowing Base Certificate most recently
furnished to Lender as required in Section 14.14, whichever is
less; plus
3.1.4.3 50% of the net book value of Borrower's equipment in
which Lender has a first priority Security Interest; plus
3.1.4.4. 75% of the net book value of Borrower's owned real
property (excluding its owned real property in Joplin,
Missouri); plus
3.1.4.5. $910,000 (which equals 70% of the current appraised
value of Borrower's owned real property in Joplin, Missouri).
For purposes of calculating the Borrowing Base: (i) all Inventory of
Borrower shall be valued at the lower of cost or market on a
first-in-first-out basis; (ii) raw materials and work-in-process shall
be deemed to be equal to total Eligible Inventory less unapplied
progress payments and inventory reserves as regularly maintained by
Borrower; and (iii) finished goods shall be deemed to be equal to the
estimated cost of Borrower's unbilled jobs."
5. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower hereby represents and
warrants to Bank as of the date hereof that (i) this Amendment has been duly
authorized by Borrower's Board of Directors, (ii) no consents are necessary from
any third parties for Borrower's execution, delivery or performance of this
Amendment, (iii) this Amendment constitutes the legal, valid and binding
obligation of Borrower enforceable against Borrower in accordance with its terms
except as the enforcement thereof may be limited by bankruptcy, insolvency or
other laws related to creditors rights generally or by the application of equity
principles, (iv) the representations and warranties in the Loan Agreement are
true and correct and have been true and correct at all times since the Effective
Date, except as described in Exhibit A hereto, and (v) there exists no Default
or Event of Default under the Loan Agreement, as amended by this Amendment.
6. EFFECT OF AMENDMENT. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of Bank
under the Loan Agreement or any of the other Loan Documents, nor constitute a
waiver of any provision of the Loan Agreement, any of the other Loan Documents
or any existing Default or Event of Default, nor act as a release or
subordination of the security interests of Bank under the Security Documents.
Each reference in the Loan Agreement to "the Agreement", "hereunder", "hereof",
"herein", or words of like import, shall be read as referring to the Loan
Agreement as amended by this Amendment.
7. REAFFIRMATION. Borrower hereby acknowledges and confirms that (i) except as
expressly amended hereby the Loan Agreement remains in full force and effect,
(ii) the Loan Agreement, as amended hereby, is in full force and effect, (iii)
Borrower has no defenses to its obligations under the Loan Agreement and the
other Loan Documents, and (iv) Borrower has no claim against Bank arising from
or in connection with the Loan Agreement or the other Loan Documents.
2
3
8. GOVERNING LAW. This Amendment has been executed and delivered in St. Louis,
Missouri, and shall be governed by and construed under the laws of the State of
Missouri without giving effect to choice or conflicts of law principles
thereunder.
9. SECTION TITLES. The section titles in this Amendment are for convenience of
reference only and shall not be construed so as to modify any provisions of this
Amendment.
10. COUNTERPARTS; FACSIMILE TRANSMISSIONS. This Amendment may be executed in one
or more counterparts and on separate counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument. Signatures to this Amendment may be given by facsimile or other
electronic transmission, and such signatures shall be fully binding on the party
sending the same.
11. NOTICE ADDRESSES. The addresses of Bank and Borrower on the signature page
hereof hereby replace the addresses for notices to Bank and Borrower,
respectively, as referred to Section 19.1 of the Loan Agreement and listed on
the signature page thereof.
12. INCORPORATION BY REFERENCE. Bank and Borrower hereby agree that all of the
terms of the Loan Documents are incorporated in and made a part of this
Amendment by this reference.
13. STATUTORY NOTICE. The following notice is given pursuant to Section 432.045
of the Missouri Revised Statutes; nothing contained in such notice will be
deemed to limit or modify the terms of the Loan Documents or this Amendment:
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW
SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER) AND US (CREDITOR) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.
BORROWER AND BANK HEREBY AFFIRM THAT THERE IS NO UNWRITTEN ORAL CREDIT AGREEMENT
BETWEEN BORROWER AND BANK WITH RESPECT TO THE SUBJECT MATTER OF THIS AMENDMENT.
[SIGNATURE PAGE FOLLOWS]
3
4
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by appropriate duly authorized officers as of the date first above
written.
▇▇▇▇▇▇▇/STC, INC. ▇▇▇▇▇▇▇ WIRELESS, INC.
By its President By its President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------- ----------------------------
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notice Address: Notice Address:
C/▇ ▇▇▇▇▇▇▇, Inc. C/▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
FAX # ▇▇▇-▇▇▇▇ FAX # ▇▇▇-▇▇▇▇
TEL # ▇▇▇-▇▇▇▇ TEL # ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, INC. ▇▇▇▇▇▇▇ OCS, INC.
by its President by its President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------- ----------------------------
Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Notice Address: Notice Address:
▇▇▇▇▇▇▇, Inc. C/▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
FAX # ▇▇▇-▇▇▇▇ FAX # ▇▇▇-▇▇▇▇
TEL # ▇▇▇-▇▇▇▇ TEL # ▇▇▇-▇▇▇▇
BANK OF AMERICA, N.A.
By its Assistant Vice President
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
Notice Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
M01-800-12-01
FAX # ▇▇▇-▇▇▇▇
TEL # ▇▇▇-▇▇▇▇
4
5
EXHIBIT A
Additions to the Disclosure Schedule in the Loan Agreement
None if nothing listed.
